Martha's Vineyard Sc v. The Wrecked and Aban

Filing 140

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, the Motion for Reconsideration (Docket No. 136 ) is ALLOWED and, upon reconsideration, plaintiff's motion to compel production of documents (Docket Nos. 108 and 128 ) is ALLOWED, in part, and DENIED, in part. Insofar as the subpoena commands Mr. McCluskie to attend a deposition in Massachusetts, it is quashed. Mr. McCluskie is, however, directed to produce the requested documents and to send them, at plaintiff's expense, to the address designated by plaintiff. Mr. McCluskie is not, at this time, found to be in contempt of Court nor will monetary sanctions be imposed. He is forewarned, however, that if he does not fully and promptly comply with the pending subpoena insofar as it requires the production of documents, the Court will re-visit the question of contempt and/or monetary sanctions. Plaintiff shall serve a copy of this order upon Mr. McCluskie within fourteen (14) days of its entry. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
MARTHA’S VINEYARD SCUBA
)
HEADQUARTERS, INC.,
)
Plaintiff,
)
)
Civil Action No.
v.
)
00-11565-NMG
)
THE WRECKED AND ABAN,
)
Defendant.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
On July 6, 2011, Plaintiff Martha’s Vineyard Scuba
Headquarters, Inc. moved to compel production of certain documents
from Thomas McCluskie.

That motion is unopposed.

Mr. McCluskie lives in Northern Ireland and is not a party to
this action but is believed to possess relevant diagrams, drawings
and plans of the vessel Columbus (later re-named the Republic)
built by Harland & Wolff in 1903.

The production of such

documents, plaintiff asserts, is necessary for a planned major
salvage operation which is at issue in this case.
When Mr. McCluskie attended a luncheon in Chicopee,
Massachusetts on October 8, 2006, plaintiff served him with a
subpoena which directed him to appear for a deposition and produce
to plaintiff the aforementioned documents.

Mr. McCluskie allegedly

agreed to provide the documents at a later-scheduled deposition but
subsequently notified the plaintiff that he did not have general
arrangement drawings for the vessel and would provide drawings in
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his possession only after plaintiff made a $5,000 donation to the
Titanic Historical Society.

His protestations contradicted an

email he sent to plaintiff the preceding year in which he confirmed
that he possessed a set of the general arrangement plans for the
vessel.
The Court finds that Mr. McCluskie was validly served in this
jurisdiction, see Kadic v. Karadzic, 70 F.3d 232, 247 (2d Cir.
1995), and that he possesses or has access to documents that were
the subject of that subpoena.
Pursuant to Fed. R. Civ. P. 45(e), a court may hold a nonparty in contempt where that party has been properly served but has
failed, without adequate excuse, to comply with a subpoena.
Nonetheless,
a non-party’s failure to obey must be excused if the subpoena
purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii),
i.e., a place more than 100 miles from where the subpoenaed
individual resides or works.
Here, Mr. McCluskie resides and works in Northern Ireland.
Because that is beyond the geographic limit set in Fed. R. Civ. P.
45(e), the Court will not require Mr. McCluskie to appear for his
deposition in Massachusetts or hold him in contempt for his failure
to do so.

It will, however, compel him to produce and send to

plaintiff (at plaintiff’s expense) the requested documents.
Requiring Mr. McCluskie to do so does not violate the purpose of
the 100-mile limit which is to protect non-party witnesses from

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“being subjected to excessive discovery burdens in litigation in
which they have little or no interest.”

In re Edelman, 295 F. 3d

171, 178 (2nd Cir. 2002).
ORDER
In accordance with the foregoing, the Motion for
Reconsideration (Docket No. 136) is ALLOWED and, upon
reconsideration, plaintiff’s motion to compel production of
documents (Docket Nos. 108 and 128) is ALLOWED, in part, and
DENIED, in part.

Insofar as the subpoena commands Mr. McCluskie to

attend a deposition in Massachusetts, it is quashed.

Mr. McCluskie

is, however, directed to produce the requested documents and to
send them, at plaintiff’s expense, to the address designated by
plaintiff.
Mr. McCluskie is not, at this time, found to be in contempt of
Court nor will monetary sanctions be imposed.

He is forewarned,

however, that if he does not fully and promptly comply with the
pending subpoena insofar as it requires the production of
documents, the Court will re-visit the question of contempt and/or
monetary sanctions.
Plaintiff shall serve a copy of this order upon Mr. McCluskie
within fourteen (14) days of its entry.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated December 28, 2011
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