Edwards v. Dwyer et al

Filing 327

MEMORANDUM AND ORDER re: 326 MOTION to Quash Plaintiff's Subpoena Directed to George Lombardi filed by Movant Missouri Attorney General's Office motion is DENIED. IT IS FURTHER ORDERED that by January 31, 2012, non-party George Lomb ardi shall file either an affidavit or a declaration signed by him under penalty of perjury pursuant to 28 U.S.C. § 1746, to certify that the MDOC does not have any of the documents subpoenaed by plaintiff.( Response to Court due by 1/31/2012.). Signed by Honorable Charles A. Shaw on 1/10/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

LAWRENCE MARTIN EDWARDS,
Plaintiff,
v.
CHUCK DWYER, et al.,
Defendants.

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No. 1:06-CV-1 CAS

MEMORANDUM AND ORDER
This closed prisoner civil rights matter is before the Court on non-party George Lombardi’s
Response and Motion to Quash Plaintiff’s Subpoena Directed to George Lombardi, Director of the
Missouri Department of Corrections (“MDOC”). Plaintiff has not filed a response to the Motion to
Quash and the time to do so has passed. For the following reasons, the Motion to Quash will be
denied as moot and Mr. Lombardi will be ordered to file additional responsive information.
Background
On October 20, 2008, plaintiff obtained a default judgment in this action against defendant
Tamara Cobbs in the amount of $1,000. Since that time, plaintiff has made several unsuccessful
attempts to collect the judgment and to locate defendant Cobbs. In September 2011, plaintiff
submitted a subpoena duces tecum pursuant to Rule 45, Federal Rules of Civil Procedure, for service
on George Lombardi, Director of the MDOC. On September 12, 2011, the Clerk of the Court issued
a subpoena duces tecum to be served on Mr. Lombardi, as directed by the Court in its Order of
September 12, 2011.
The United States Marshal served the subpoena on October 4, 2011. The subpoena duces
tecum required the production of the following documents by November 14, 2011: (1) Cobbs’

employment application; (2) Cobbs’ employment records; (3) “any and all documents related to
Tamara Cobbs that can be used to locate her whereabouts, including but not limited to her marriage
certificate;” and (4) Cobbs’ driver’s license number, Social Security number, and “any documents
to determine [her] whereabouts.” Mr. Lombardi filed the instant motion to quash on November 14,
2011.
Discussion
Mr. Lombardi moves to quash the subpoena on the basis that the documents it seeks are
privileged under Missouri law. Specifically, Mr. Lombardi asserts that Cobbs’ employment
application and employment records are “privileged, confidential, and shielded from disclosure by
§ 610.021, RSMo.,” and that her driver’s license number and social security number are similarly
privileged from disclosure by the same statute. Mr. Lombardi does not cite any case law in support
of his motion to quash. Mr. Lombardi also responds that he does not have physical possession or
control of the requested documents because Cobbs left her employment with the MDOC in 2001 and
her employment file was destroyed in 2008 or 2009, and that Cobbs’ last known address was
“already filed . . . under seal.” Mot. to Quash at 2.
Rule 45(c)(3)(A)(iii) provides that on a timely motion, the court that issued a subpoena must
quash or modify the subpoena if it “requires disclosure of privileged or other protected matter, if no
exception or waiver applies[.]” Mr. Lombardi’s motion was timely filed because it was filed within
the time for response to the subpoena. The motion to quash and the privilege issues it raises are
moot, however, based on Mr. Lombardi’s response that he does not have the documents plaintiff
seeks. The motion to quash should therefore be denied as moot.
The Court notes, however, that there appears to be a significant discrepancy between the
allegations in the Amended Complaint and Mr. Lombardi’s response. Plaintiff alleged that
defendant Cobbs’ actions against him occurred in June 2005, while he was incarcerated and Cobbs

was working as a Correctional Officer. See Amended Complaint, ¶¶ 53-54 (Doc. 83). In contrast,
Mr. Lombardi states that Cobbs left her employment with the MDOC in 2001. At no time during
the lengthy pendency of this case and briefing of various dispositive motions did any defendant
assert that the time frames mentioned in plaintiff’s pleadings were incorrect, or that defendant Cobbs
was not in the MDOC’s employ during those times.
While Mr. Lombardi’s reference to 2001 may be merely a typographical error, because of
the discrepancy, the Court has concerns as to whether the MDOC conducted a diligent search of its
records for documents responsive to the Rule 45 subpoena. In light of this, the Court will require
Mr. Lombardi to file either an affidavit or a declaration signed by him under penalty of perjury
pursuant to 28 U.S.C. § 1746, to certify that the MDOC does not have any of the documents
subpoenaed by plaintiff.
Accordingly,
IT IS HEREBY ORDERED that non-party George Lombardi’s Motion to Quash Plaintiff’s
Subpoena is DENIED as moot. [Doc. 326]
IT IS FURTHER ORDERED that by January 31, 2012, non-party George Lombardi shall
file either an affidavit or a declaration signed by him under penalty of perjury pursuant to 28 U.S.C.
§ 1746, to certify that the MDOC does not have any of the documents subpoenaed by plaintiff.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 10th day of January, 2012.