Gomez et al v. Normand et al

Filing 16

ORDER AND REASONS: ORDERED that 15 Motion to Quash Subpoena Duces Tecum is GRANTED. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SANTOS HERNANDEZ GOMEZ AND
MARIA FELIX LOPEZ ESPINOSA ON
BEHALF OF THEIR MINOR SON “YHL”

CIVIL ACTION

VERSUS

NO:

SHERIFF NEWELL NORMAND, ET AL

SECTION: “H” (4)

16-17046

ORDER AND REASONS
Before the Court is a Motion to Quash Subpoena Duces Tecum (R. Doc. 15) filed by
the Defendant Sheriff Newell Normand (“Defendant”) seeking on order of the Court quashing a
subpoena issued to the Defendant by the Plaintiffs. The motion is not opposed. The motion was
submitted on July 5, 2017 and heard without oral argument. For the following reasons, the motion
to quash is GRANTED.
I.

Background
This action was filed in the District Court on December 12, 2016 asserting claims under 42

U.S.C. §§ 1983, 1988 by Plaintiffs Santos Hernandez Gomez and Maria Felix Lopez Espinosa
(“Plaintiffs”) on behalf of their minor son “YHL.” The Plaintiffs have asserted a number of claims
against the Defendant and Defendant Sergeant Julio Alvarado arising from the alleged excessive
force used against YHL on December 10, 2015 when YHL and a friend were stopped after pulling
into a parking lot behind a home on Veterans Memorial Boulevard in Metairie, Louisiana.
At this time, the Defendant has filed a motion to quash a subpoena duces tecum issued to
him. 1 R. Doc. 15. The Defendant argues that a subpoena issued pursuant to Federal Rule of Civil
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The subject subpoena was issued to Defendant Jefferson Parish Sheriff’s Office. R. Doc. 15-3. “However,
a parish sheriff’s office is not a legal entity capable of being sued in a federal civil rights action.” Francis v. Terrebonne
Parish Sheriff’s Office, No. 08-4972, 2009 WL 4730707, at *2 (E.D. La. Dec. 9, 2009) (citing Cozzo v. Tangipahoa
Parish Council-President Government, 279 F.3d 273, 283 (5th Cir.2002)); see also Marchiafava v. Louisiana Police
Dept., 2008 WL 2437526, at *2-3 (M.D. La. June 16, 2008) (internal quotation and citation omitted) (“In the case of
the Ascension Parish Sheriff's Office, the Louisiana Supreme Court has held that the Sheriff's Department is not a

Procedure 45 is an improper discovery tactic that seeks to circumvent proper discovery between
parities conducted pursuant Federal Rule of Civil Procedure 34.
II.

Standard of Review
Federal Rule of Civil Procedure 45(d)(3) governs the quashing or modifying of subpoenas.

The Court must quash or modify a subpoena that “(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii)
requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). The Court may also
modify or quash a subpoena that requires the disclosure of a trade secret or an unretained expert’s
opinion that does not describe specific occurrences in dispute and results from that expert’s study
that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B).
III.

Analysis
At this time, the Defendant has filed a motion to quash the subpoena duces tecum issued to

him because it is an improper method to obtain discovery from a party to a litigation. R. Doc. 15.
The Defendant argues that the Plaintiffs cannot use Rule 45 as a means to circumvent the response
times allowed under Federal Rule of Civil Procedure 34 or other procedural protections. R. Doc.
15-1, p. 3.
Certainly, under the wording of Federal Rule of Civil Procedure 45, subpoenas may be
served upon both party and non-parties. Petit v. Heebe, No. 15-3084, 2016 WL 1089351, at *2
(E.D. La. Mar. 21, 2016). And, in some instances, the use of a Rule 45 subpoena may be

legal entity capable of being sued. To the contrary, it is the elected Sheriff, not the Parish Sheriff's Office, that is the
constitutionally designated chief law enforcement officer of the Parish. Here, the Court finds no law, Constitutional,
statutory, or otherwise, that confers upon the Ascension Parish Sheriff's Office the authority to sue or to be sued. The
Court also finds no authority that entitles the Ascension Parish Sheriff's Office to function independently of the
Ascension Parish Sheriff.”). As the Sherriff’s Office is not legally independent of the Sheriff, a subpoena issued to the
Sheriff’s Office is for all purpose a subpoena issued to the Sherriff in his official capacity.

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appropriate in commanding the performance of a party, such as commanding a party to appear for
a trial, hearing, or deposition. Fed. R. Civ. P. 45(c)(1)(B)(i). However, the Court in this District
and others in this Circuit have disallowed the improper use of a Rule 45 subpoena to obtain
information or documents more properly discovered under Federal Rule of Civil Procedure 33 or
34. See Trotta v. Cajun Conti LLC, No. 15-1186, 2016 WL 6473239, at *1 (E.D. La. Nov. 2, 2016)
(collecting authorities) (“As I and others have previously held, plaintiff's use of a Rule 45 subpoena
duces tecum instead of Rule 34 requests for production must be viewed as an attempt to circumvent
the time requirements – 30 days to respond – and other orderly procedures, both for objections to
such requests and for production of materials, between parties contemplated by Fed. R. Civ. P.
34.”); Front-Line Promotions & Mktg., Inc. v. Mayweather Promotions, No. 08-3208, 2009 WL
928568, at *5 (E.D. La. Apr. 2, 2009) (“[P]ursuant to Federal Rule of Civil Procedure 45, a
subpoena is an improper mechanism for seeking discovery from a party to the litigation.”);
Hamilton v. Ochsner Health Sys., No. 12-1398, 2012 WL 6725609, at *3 (E.D. La. Dec. 27, 2012)
(Brown, J.); Powell v. United States, No. 09-1873, 2009 WL 5184338, at *1 (E.D. La. Dec. 22,
2009) (Vance, J.); Thomas v. IEM, Inc., Civ. A. No. 06–886, 2008 WL 695230, at *2 (M.D. La.
Mar. 12, 2008) (“Rule 45 subpoenas, although not technically precluded by the language of Rule
45 from being served upon parties to litigation, are generally used to obtain documents from nonparties and are ‘clearly not meant to provide an end-run around the regular discovery process under
Rules 26 and 34.’”).
Certainly, there is a certain logic to enforcing this distinction. First, the references in Rule
34 to parties and Rule 45 to non-parties appears to suggest that Rule 34 is the proper tool for
discovery between parities. See Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996)
(“Rule 45, as well as the advisory committee notes, are replete with references to non-parties. In

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fact, the notes to the 1991 amendments presume the Rule's exclusive applicability to non-parties
with respect to discovery. Indeed, Rule 34, which unquestionably applies only to parties,
illuminates the scope of Rule 45 when it directs that ‘[a] person not a party to the action may be
compelled to produce documents and things or to submit to an inspection as provided in Rule 45.’
Fed. R. Civ. P. 34(c).”). Second, the discovery rules under Rule 34 provides more expansive time
periods to respond to or object to discovery request. Fed. R. Civ. P. 34(a)(2)(A). Finally, the
discovery procedures have certain safeguards to ensuring proper discovery not found under Rule
45, including specificity of objections under Federal Rule of Civil Procedure 34(a)(2)(C) and an
obligation to confer about discovery responses prior to the filing of a motion to compel under Rule
37(a).
Therefore, for the above reasons, the Court grants the motion to quash. Nonetheless, the
Court notes that upon reviewing the request discovery that it has some concerns. When the
Plaintiffs convert the current discovery requested into a Rule 34 request, the Plaintiffs should
review their request to be sure that it does not seek information that may be protected or require
an in camera inspection by the Court as well as ensure that its requests are not overly broad.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Defendant's Motion to Quash Subpoena Duces Tecum (R.

Doc. 15) is GRANTED.
New Orleans, Louisiana, this 5th day of July 2017.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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