Jenkins v. Michigan Department of Corrections et al
Filing
47
ORDER granting in part and denying in part Defendants' 29 Motion to Quash--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VAN JENKINS,
Plaintiff
v.
Case No. 5:14-cv-11812
District Judge Judith E. Levy
Magistrate Judge Anthony P. Patti
MICHIGAN DEPARTMENT
OF CORRECTIONS, et al.,
Defendants
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO QUASH SUBPOENA (DE 29)
This matter is before the Court for consideration of Defendants’ Motion to
Quash Plaintiff’s Subpoenas.1 (DE 29, 30, and 34.) For the reasons that follow,
Defendants’ Motion to Quash will be GRANTED IN PART AND DENIED IN
PART.
I.
BACKGROUND
The Court set out the background in this case in its Report and
Recommendation dated February 27, 2015. (DE 45.) The Court incorporates the
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Although two of the individuals seeking to quash the subpoenas are non-parties,
for ease of reference the Court will refer to the entire group as “Defendants.”
February 27, 2015 Report and Recommendation and will only set out the facts
necessary to dispose of the instant motion.
Plaintiff Van Jenkins is currently incarcerated at the Michigan Department
of Corrections’ Parnall Correctional Facility in Jackson, Michigan. He filed the
instant lawsuit in the Western District of Michigan on December 5, 2013. He filed
an Amended Complaint on February 26, 2014. (DE 3.) On May 2, 2014, Judge
Bell in the Western District entered an opinion (DE 4) and order of partial
dismissal and transfer (DE 5), dismissing with prejudice Plaintiff’s claims against
all Defendants except Patrick M. Clark, Douglas Fox, Erika T. Saxton, Clinton
Bradley, Gary Edwards, Fern Bean, Annette White, and Adrian L. Green and
transferring the case to the Eastern District of Michigan.
On February 27, 2015, I issued a Report and Recommendation
recommending that the Court dismiss Plaintiff’s claims against Defendants Fox,
Saxton, Bradley, Edwards, White, and Bean on the basis that Plaintiff failed to
exhaust his administrative remedies prior to filing suit. (DE 45.) Objections to the
Report and Recommendation, if any, are due on or before March 12, 2015. For the
purposes of this Order and until the Report and Recommendation is ruled upon by
Judge Levy, the Court will consider Saxton and Bean as current Defendants.
Defendants Saxton and Green and non-party Melody Wallace filed the
instant Motion on September 23, 2014. (DE 29.) Defendants then filed two
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supplements to the motion: the first to add the subpoena served on Defendant Bean
(DE 30) and the second to add the subpoena served on non-party Michelle Riseley.
(DE 34.) Instead of filing a response brief, on October 17, 2014, Plaintiff filed a
“Motion for Contempt for Refusal to Comply with Writ of Subpoenas,” which
included an “Ex Parte Motion to Appoint [a] United States Marshal to Serve
Motion for Contempt for Refusal to Comply with Writ of Subpoenas Duces Tecum
and to Investigate and Seize Evidenti[ary] Materials.” (DE 36.)
II.
STANDARD
Federal Rule of Civil Procedure 45 governs subpoenas and allows a district
court, on proper motion, to quash a subpoena for documents or testimony. The
decision to quash a subpoena is within the sound discretion of the district court.
Thomas v. City of Cleveland, 57 F. App’x 652, 654 (6th Cir. 2003). The Rule
provides in relevant part that the issuing court must quash or modify a subpoena
that:
(i)
fails to allow a reasonable time to comply;
(ii)
requires a person who is neither a party nor a party’s officer to
travel more than 100 miles from where that person resides, is
employed, or regularly transacts business . . . ;
(iii)
requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv)
subjects a person to undue burden.
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Fed. R. Civ. P. 45(d)(3)(A). Objections to a subpoena must be served “before the
earlier of the time specified for compliance or 14 days after the subpoena is
served.” Fed. R. Civ. P. 45(d)(2)(B). Failing to serve written objections by the
time provided in Rule 45 generally waives those objections. ‘“In unusual
circumstances and for good cause, however, the failure to act timely will not bar
consideration of objections.”’ Am. Elec. Power Co. v. United States, 191 F.R.D.
132, 136-37 (S.D. Ohio 1999) (quoting Concord Boat Corp. v. Brunswick Corp.,
169 F.R.D. 44, 53 (S.D.N.Y. 1996)). Courts have found unusual circumstances
where, for example, “the subpoenaed witness is a non-party acting in good faith.”
Id.
Rule 26(b) defines the scope of discovery for a subpoena issued pursuant to
Rule 45. Sys. Prod. and Solutions, Inc., v. Scramlin, No. 13-cv-14947, 2014 WL
3894385, at *9 (E.D. Mich. Aug. 8, 2014). The Rule allows a party to obtain
discovery concerning any non-privileged matter that is relevant to any party’s
claim or defense. Fed. R. Civ. P. 26(b)(1).
III.
ANALYSIS
Defendants assert that the Court should quash Plaintiff’s subpoenas for two
reasons. First, they argue that Plaintiff did not provide a reasonable time in which
to comply with the subpoenas. Specifically, they note that they received the
subpoenas between September 10, 2014 and September 12, 2014. (Mot. 2, DE 29.)
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All of the subpoenas required compliance on or before September 15, 2014. (Id.)
Second, Defendants contend that the subpoenas are unduly burdensome under Rule
45(d)(3)(iv) and may require disclosure of privileged or protected matter.
However, Defendants note that “more specific objections cannot be made at this
time” due to the short period of time for compliance imposed by Plaintiff. (Id. at
3.) In his Motion for Contempt, Plaintiff does not address either argument
specifically. Instead, he asserts that the subpoenas were properly served and
relevant. (DE 36.)
As a preliminary matter, the Court will consider Defendants’ objections, in
the form of their Motion to Quash, timely filed. The subpoenas were served on the
individuals between September 10, 2014 and September 12, 2014. (DE 29-1, 29-2,
29-3, 29-4, 29-5, 30-2, and 34-2.) They filed their initial Motion on September 23,
2014 and their most recent supplement on October 1, 2014. Although Rule
45(d)(2)(B) requires objections to be made “before the earlier of the time specified
for compliance or 14 days after the subpoena is served,” the timeline imposed by
Plaintiff did not provide sufficient time to object. Instead, the individuals filed
their Motion approximately a week after receiving the subpoenas. The Court
concludes that this situation, in which Defendants (including two non-parties) had
only one to two days after service to comply and acted in good faith to file
objections as soon as possible, represents an unusual circumstance under which
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untimely objection should not serve as a waiver. See Am. Elec. Power Co., 191
F.R.D. at 136-37 (concluding that objections were not waived for untimely filing
where the subpoenaing party could not have legitimately expected to receive the
documents on time); Zamorano v. Wayne State Univ., No. 07-12943, 2008 WL
597224, at *1-2 (E.D. Mich. Mar. 3, 2008) (untimely objections were not waived
where a non-party made a good-faith attempt to timely object); State Farm Mut.
Auto Ins. Co. v. Hawkins, No. 08-10367, 2010 WL 2287454, at *3 (E.D. Mich.
June 4, 2010) (finding unusual circumstances weighing against waiver where the
“failure to serve timely objections . . . [was] the result of understandable confusion,
rather than bad faith.”).
Having considered Defendants’ objections, the Court concludes that
Plaintiff’s subpoenas must be modified to provide a reasonable time for
compliance. Plaintiff gave the individuals as little as one day to comply with the
discovery requests, which were fairly extensive in some cases. For example,
Plaintiff seeks “guidelines, directives, policy statements, procedures, and training
materials, in any form and of any type” from September 13, 2005 through
September 13, 2008. (Green Subpoena ¶ 4, DE 29-4, see also DE 29-3 and 34-2.)
This is not enough time for Defendants to reasonably comply. See, e.g., Saffady v.
Chase Home Fin., Inc., No. 10-11965, 2011 WL 717564, at *3 (E.D. Mich. Feb.
22, 2011) (concluding that a subpoena that provided four business days in which to
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comply failed to allow reasonable time for compliance). Accordingly, the Motion
to Quash is GRANTED IN PART AND DENIED IN PART. The Court will
MODIFY Plaintiff’s subpoenas to require compliance ON OR BEFORE APRIL
17, 2015.
The Court declines to quash the subpoenas on the basis of undue burden.
The subpoenaed individuals have not provided sufficient information to evaluate
the subpoenas on this basis. Nor does the Court make any evaluation as to the
relevance of the discovery requests or any potential claims of privilege.
IT IS SO ORDERED.
Dated: March 16, 2015
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
March 16, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
(313) 234-5200
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