Valbruna Slater Steel Corporation et al v. Joslyn Manufacturing Company et al

Filing 116

OPINION AND ORDER DENYING 87 MOTION to Compel by Defendant Joslyn Manufacturing Company LLC. Signed by Magistrate Judge Susan L Collins on 4/28/15. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VALBRUNA SLATER STEEL
CORPORATION, et al.,
Plaintiffs,
v.
JOSLYN MANUFACTURING
COMPANY, et al.,
Defendants.

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Case No. 1:10-cv-44-JD-SLC

OPINION AND ORDER
Before the Court is a motion to compel (DE 87) filed by Defendant Joslyn Manufacturing
Company, LLC (hereinafter, “Joslyn”). In its motion, Joslyn seeks to compel a third party, Ms.
Andrea Robertson Habeck, to produce documents she withheld at her deposition. Because the
motion has been filed before the wrong court, however, it will be denied.
To explain, the Court will first provide a brief summary of the undisputed facts in this
case. Joslyn served a subpoena upon Ms. Habeck, requiring her to testify at a deposition in this
action. The subpoena included a rider which requested specific documents related to Ms.
Habeck’s statements. Ms. Habeck’s deposition was held on February 17, 2015, in Indianapolis.
During the deposition, Ms. Habeck’s counsel stated an objection to providing certain documents
that would be responsive to the rider on grounds of deliberative process privilege. Joslyn then
filed the instant motion to compel the production of the withheld documents.
The subpoena (DE 88-1 at 10), which was issued by the Northern District of Indiana, was
served to Ms. Habeck at her place of business in Indianapolis, Indiana (DE 88-1 at 9), and

commanded her to appear for a deposition in Indianapolis on February 17, 2015. Federal Rule of
Civil Procedure 45(c) states that “[a] subpoena may command a person to attend a . . . deposition .
. . within 100 miles of where the person resides, is employed, or regularly transacts business in
person,” and “[a] subpoena may command production of documents, electronically stored
information, or tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person . . . .” Here, Joslyn’s subpoena commanded
Ms. Habeck to attend and produce documents at the deposition in Indianapolis, which took place
at her place of work. Thus, the subpoena easily satisfied the 100 mile requirement.
However, where a person who is commanded to produce documents or tangible things
objects to the production, “the serving party may move the court for the district where compliance
is required for an order compelling production or inspection.” Fed. R. Civ. P. 45(d)(2) (emphasis
added). Additionally, Federal Rule of Civil Procedure 37(a)(2) makes it clear that a motion to
compel disclosure or discovery “to a nonparty must be made in the court where the discovery is or
will be taken.” Fed. R. Civ. P. 37(a)(2) (emphasis added). Therefore, the motion to compel
should have been filed in the Southern District of Indiana, where the subpoena is to be enforced,
not the Northern District of Indiana, where the subpoena was issued.
For this reason, Joslyn’s motion to compel (DE 87) is DENIED.
SO ORDERED.
Entered this 28th day of April, 2015.
S/Susan Collins
Susan Collins
United States Magistrate Judge

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