Bartz et al v. Wal-Mart Stores, Inc.
Filing
16
OPINION entered by Magistrate Judge Tom Schanzle-Haskins on 4/29/2015. Third Party Anderson Merchandisers LLC's Motion to Quash Subpoena, d/e 13 is ALLOWED in part and DENIED in part. (SEE WRITTEN OPINION) (MAS, ilcd)
E-FILED
Friday, 01 May, 2015 01:36:53 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
JAN BARTZ and DANIEL BARTZ, )
)
Plaintiffs,
)
)
v.
)
)
WAL-MART STORES, INC., d/b/a,)
WAL-MARTSUPERCENTER,
)
a/k/a WAL-MART STORE #1454, )
)
Defendant,
)
No. 14-3353
OPINION
TOM SCHANZLE-HASKINS, U.S. Magistrate Judge:
This matter comes before the Court on Third Party Anderson
Merchandisers LLC’s (Anderson) Motion to Quash Subpoena (d/e 13)
(Motion). For the reasons set forth below, the Motion is ALLOWED in part
and DENIED in part.
BACKGROUND
Plaintiff Jan Bartz alleges that she was an employee of Anderson. As
part of her duties, she retrieved Anderson merchandise stored in Defendant
Wal-Mart, Inc.’s (Wal-Mart) warehouse to place on store shelves at the
Wal-Mart Store #1454, located in Quincy, Illinois. Jan Bartz alleges that on
December 16, 2012, during the course of her employment with Anderson
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she climbed a ladder at a Wal-Mart warehouse to pull a box of
merchandise off a shelf. Complaint (d/e 1), ¶¶ 7-15. She alleges that, “the
box was not completely full so when she pulled the box towards her the
products in the box shifted, the force of which caused plaintiff to lose her
balance and fall from the ladder to the ground seriously injuring herself.”
Complaint, ¶ 16.
Jan Bartz brought this action, alleging claims against Wal-Mart for
personal injuries. Complaint, Count I. Plaintiff Daniel Bartz alleged that he
is Jan Bartz’s husband. He alleged claims for loss of consortium.
Complaint, Count II.
Plaintiffs served a subpoena on Anderson by mail, postmarked March
26, 2015. The Subpoena required Anderson to produce documents at
counsel for Plaintiffs on April 10, 2015. Anderson moves to quash the
subpoena on three grounds: (1) the subpoena failed to set out the text of
Federal Rule of Civil Procedure 45(d) and (e); (2) the Plaintiffs failed to
include payment of witness fees at the time that the subpoena was served;
and (3) the Plaintiffs failed to give Anderson sufficient time prepare a
response. The Court addresses each ground separately.
I.
Omission of Text of Rule 45(d) and (e)
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Parties are required to include the text of Rules 45(d) and (e) with any
subpoena. Fed. R. Civ. P. 45(a)(1)(A)(iv). The Plaintiffs failed to comply
with this rule. Anderson, however, claims no prejudice resulted from this
omission. Rule 45 authorizes the Court to quash a subpoena if the
subpoena: fails to allow a reasonable time to comply; requires the person
to comply beyond the geographical limits specified in Rule 45; requires
disclosure of privileged or otherwise protected material; or subjects a
person to an undue burden. Fed. R. Civ. P. 45(d)(3)(A). Thus, omission of
the text of Rule 45(d) and (e) constitutes grounds for quashing a subpoena
if the omission would constitute an undue burden. See Elam v. Ryder
Automotive Operations, Inc., 179 F.R.D. 413, 415 (W.D. N.Y. 1998); but
see Anderson v. Government of the Virgin Islands, 180 F.R.D. 284, 290-91
(D. V.I. 1998). Absent some prejudice, the Court will not quash the
subpoena on this ground. The Court declines to follow the persuasive
authority to the contrary in the Anderson case cited by Anderson.1
I.
Omission of Witness Fee
1
The Court notes that the subpoenas in the Anderson case had numerous material defects in addition to
the failure to include the text of Rule 45(d) and (e), including improper service and improper attempt to
serve a person far outside the geographical area of the court’s subpoena power. Anderson, 180 F.R.D.
at 290. The subpoena at issue here had no similar defects. A court in the Virgin Islands also
subsequently indicated that the failure to include the text alone without a showing of prejudice would not
be a proper basis to quash a subpoena. Bretrand v. Cordiner Enterprises, Inc., 2011 WL 3036128, at *4
(V.I. Super. June 24, 2011).
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A party must include payment of a witness fee with a subpoena if the
subpoena requires a person’s attendance. Fed. R. Civ. P. 45(b)(1). The
subpoena served on Anderson only required production of documents. No
person’s attendance was required. Thus, no fee was required. The Court
will not quash the subpoena on this ground.
II.
Inadequate Time to Respond
The Plaintiffs mailed the subpoena on Thursday, March 26, 2015.
The subpoena commanded Anderson to produce the responsive
documents by Friday, April 10, 2015, 15 days later. The Court may quash
or modify a subpoena that fails to provide a reasonable time to respond.
Fed. R. Civ. P. 45(d)(3)(A)(i). The Court agrees that the time given to
respond was inadequate given the volume of materials requested. The
Court, therefore, modifies the subpoena as follows: Anderson is directed to
produce the responsive unprivileged documents by May 15, 2015.
Anderson may withhold any privileged documents, but must provide by
May 15, 2015, a privilege log that meets the requirements of Federal Rule
of Civil Procedure Rule 26(b)(5)(A). Anderson may designate any
produced documents as confidential. The parties and their attorneys may
not use or disclose the contents of any documents so designated except to
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conduct discovery in this case or to litigate this case, or pursuant to
subsequent order of this Court.
THEREFORE, Third Party Anderson Merchandisers LLC’s Motion to
Quash Subpoena (d/e 13) is ALLOWED in part and DENIED in part.
Enter: April 29, 2015
/s Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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