Morse et al v. Commonwealth of Massachusetts Executive Office of Public Safety et al

Filing 89

Magistrate Judge David H. Hennessy: ORDER entered granting 75 Motion to Compel (DHH, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CHARLES MORSE and LESA MORSE,
Plaintiffs,

v.
COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF PUBLIC SAFETY
DEPARTMENT OF STATE POLICE, et. al.
Defendants.

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CIVIL ACTION
NO. 12-40160-TSH

ORDER
July 9, 2014
Hennessy, M.J.
By Order of Reference dated July 3, 2014, pursuant to 28 U.S.C. § 636(b)(1)(A) (Docket
#85), this matter was referred to me for a ruling on Defendant Sean Maher’s Motion to Compel
the Appearance of a Non-Party to Attend a Deposition. (Docket #75). For the reasons that
follow, the Motion to Compel is ALLOWED.
I.

BACKGROUND
This action was originally filed in Worcester Superior Court on August 15, 2012 and

removed to this court on December 4, 2012. (Docket #1). The complaint alleges violations of
the Plaintiffs’ civil rights, specifically that Plaintiff Charles Morse was unlawfully seized and
unlawful entry was made into Plaintiffs’ home. (Id.).
On May 14, 2014, Defendant Maher properly served a deposition subpoena ad
testificandum on Adrian Podpora at his residence along with the requisite witness fee. (Docket
#75-2). The deposition was noticed for June 3, 2014 at 2:00 p.m. (Id.). On May 7, 2014,

Defendant Maher sent a copy of the subpoena by United States mail to Podpora along with
correspondence directing Podpora to contact Defendant Maher’s counsel if the location of the
deposition posed an issue. (Docket #75-3). Due to Podpora’s work schedule, the deposition was
relocated from Worcester to Sturbridge and the time of the deposition was moved to 3:00 p.m. on
June 3, 2014. (Docket #75-4; Docket #75-7). To confirm the change, a second subpoena was
served on Podpora and a letter was sent to him on May 27, 2014. (Docket #75-1; Docket #75-4).
A re-notice of deposition setting forth the change in time and location was sent to all counsel.
(Docket #75-5).
On June 3, 2014, counsel for the parties appeared at the time and place as set out in the
subpoena served on Podpora. (Docket #75-6). However, Podpora never showed. (Id.). A
phone message was left for Podpora, which he did not return. (Id.). Podpora never contacted
Defendant Maher to inform him that he would not be appearing. (Id.).
On June 12, 2014, Defendant Maher filed the present motion, seeking to compel
Podpora’s appearance at a deposition. (Docket #75). Defendant Maher served a copy of the
motion on Podpora that same day. (Id. at 2). Podpora has not responded to the motion.
II.

STANDARD
Unless otherwise ordered by the court,
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense – including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.

Fed. R. Civ. P. 26(b)(1). The scope of discovery, however, differs significantly between parties
and nonparties. The “relevance” standard of Rule 26 does not apply to nonparties. Bio-Vita,
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Ltd. v. Biopure Corp., 138 F.R.D. 13, 17 (D. Mass. 1991).

“To obtain discovery from

nonparties, a party must establish that its need for discovery outweighs the nonparty’s interest in
nondisclosure.” Bio-Vita, 138 F.R.D. at 17; see Cusumano v. Microsoft Corp., 162 F.3d 708,
717 (1st Cir. 1998) (“Although discovery is by definition invasive, parties to a law suit must
accept its travails as a natural concomitant of modern civil litigation.

Non-parties have a

different set of expectations. Accordingly, concern for the unwanted burden thrust upon nonparties is a factor entitled to special weight in evaluating the balance of competing needs.”).
III.

ANALYSIS
Defendant Maher represents that Podpora was one of two persons in a position to observe

Plaintiff Charles Morse during the timeframe that he was alleged to have committed the acts that
brought him to the attention of law enforcement officers on August 16, 2009. (Docket #76 at 4).
The Defendants have yet to depose any witness who had contact with Plaintiff Charles Morse
during this time period. (Id.). Defendant Maher argues that he has a right to depose Podpora so
as to avoid surprise at trial and to prevent any undue prejudice that would result to him if
Podpora were allowed to testify at trial without Defendant Maher having the benefit of his
deposition. (Id. at 5).
The Court finds that Defendant Maher’s need for Podpora’s deposition outweighs any
interests Podpora may have in nondisclosure. Relevant to this analysis is the fact that Podpora
has not given any indication as to why he failed to appear at his deposition despite the fact that
the time and location of the deposition were changed at Podpora’s request. The Court is aware
of no undue burden that Podpora would suffer if deposed.

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The Court notes that the proper procedure for challenging a subpoena is a motion to
quash or modify pursuant to Federal Rule of Civil Procedure 45(d)(3). Podpora did not avail
himself of this process.
IV.

CONCLUSION
For the foregoing reasons, Defendant Maher’s Motion to Compel the Appearance of a

Non-Party to Attend a Deposition (Docket #75) is ALLOWED. Adrian Podpora shall appear at a
deposition at a time, date, and place as agreed to by the parties, provided such deposition takes
place no later than August 1, 2014. Counsel for Defendant Maher shall serve upon Adrian
Podpora a copy of this order along with a notice of the time, date, and place of the deposition,
giving at least seven days notice. Failure on the part of Adrian Podpora to follow this order shall
be punishable by contempt. See Fed. R. Civ. P. 45(g). Should Podpora fail to comply with this
order, the Court will consider Defendant Maher’s motion for cost and fees.
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/S/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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