Morrison v. Hale et al

Filing 32

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk of the Court shall send Plaintiff two blank subpoena forms, which Plaintiff may fill out as required by this Memorandum and Order and return to the Court with a Memorandum for Clerk request ing that the subpoena be served by the U.S. Marshal. IT IS FURTHER ORDERED that if Plaintiff requests additional blank subpoena forms in the future, each such request must be accompanied by a Memorandum for Clerk that includes the following informa tion for each requested subpoena: (1) the name of the person or entity Plaintiff seeks to serve; (2) the specific documents Plaintiff seeks; (3) how the specified documents are relevant to Plaintiffs case; (4) why Plaintiff believes the person or entity to be subpoenaed has possession of the documents; and (5) how Plaintiff will provide the necessary costs related to document productions. (Mailed Plaintiff two blank subpoena forms attached to this order herein.) Signed by Magistrate Judge Nannette A. Baker on 11/20/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

HERBERT W. MORRISON, JR.,
Plaintiff,
v.
ANDREW HALE
Defendant.

)
)
)
)
)
)
)
)
)

No. 4:17-CV-875-NAB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s pro se letter to the Clerk of Court, in which he
requests two blank subpoenas “for the production of documents, information, or objects.” For the
following reasons, the Court will direct the Clerk to send Plaintiff two blank subpoena forms,
which Plaintiff shall complete in accordance with the directions in this Order.
Production of documents from a nonparty can be compelled only by a subpoena duces
tecum issued under Rule 45 of the Federal Rules of Civil Procedure. Fisher v. Marubeni Cotton
Corp., 526 F.2d 1338, 1341 (8th Cir. 1975) (citations omitted). Thus, if Plaintiff seeks to obtain
documents from nonparties, he must comply with the provisions of Rule 45.
The Clerk of the Court will be directed to send Plaintiff blank subpoena forms. Plaintiff
may fill out the subpoena forms and return them to the Court, along with a Memorandum for Clerk
requesting service on nonparties by the U.S. Marshal.1 Plaintiff should not sign the subpoenas, as
they will be signed by the Clerk after they are returned to and reviewed by the Court.
The Memorandum for Clerk must include the following information for each subpoena: (1)
the name of the person or entity Plaintiff seeks to serve; (2) the specific documents Plaintiff seeks;
1

The in forma pauperis (“IFP”) statute provides that officers of the court will issue and serve all process in IFP
actions. See U.S.C. § 1915(d). This requirement applies not only to service of original process, but also to service of
a subpoena on behalf of an IFP party. See 9 James Wm. Moore, et al., Moore’s Federal Practice § 45.20 (3d. ed.
2015).

(3) how the specified documents are relevant to Plaintiff’s case; (4) why Plaintiff believes the
person or entity to be subpoenaed has possession of the documents; and (5) how Plaintiff will
provide the necessary costs related to document productions. The subpoena forms submitted by
Plaintiff should be typewritten, if possible, or otherwise must be legible or they will not be
considered.
The Court retains the discretion to refuse to issue Rule 45 subpoenas to nonparties if
Plaintiff does not provide the required information in the Memorandum for Clerk, or if the Court
believes the requests are frivolous or otherwise improper. The Court has the “discretionary power
to refuse to subpoena witnesses and to prevent abuse of its process in both civil and criminal
proceedings.” Manning v. Lockhart, 623 F.2d 536, 539 (8th Cir. 1980) (per curiam). This power
should be exercised to protect the resources of the Court and the U.S. Marshals Service, and to
prevent harassment and undue expense of other parties and nonparties. See, e.g., Lloyd v.
McKendree, 749 F.2d 705, 707 (11th Cir. 1985).
“Courts exercising inherent supervisory power over in forma pauperis subpoenas generally
consider factors such as the relevance and materiality of the information requested and the
necessity of the particular testimony or documents to proving the indigent’s case.” See Stockdale
v. Stockdale, 2009 WL 4030758 at *1 (E.D. Mo. Nov. 18, 2009); Tuvalu v. Woodford, 2006 WL
3201096, at *5 (E.D. Cal. Nov. 2, 2006) (“[A] party’s ability to use a subpoena duces tecum is
circumscribed by the relevance standards of Federal Rule of Civil Procedure 26(b)(1)); Jackson v.
Brinker, 1992 WL 404537, at *7 (S.D. Ind. Dec. 21, 1992).
Additionally, Plaintiff should be mindful of the fact that although Plaintiff has been
granted in forma pauperis status under 28 U.S.C. § 1915, nothing in the statute authorizes or
permits the Court to waive the expense requirements of Rule 45. See generally McNeil v.

Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987), cert. denied, 485 U.S. 965 (1988); Badman v. Stark,
139 F.R.D. 601, 605-06 (M.D. Pa. 1991); Leadbetter v. City of Fort Wayne, 2007 WL 2323109, at
*2 n.2 (N.D. Ind. Aug. 10, 2007) (citing cases). If Plaintiff were required to file a motion to
compel, or if the subpoenaed parties objected to the subpoenas, the Court could condition an order
requiring document production upon Plaintiff’s advancing the copying costs for those documents.
Accordingly, when reviewing subpoenas directed to nonparties, a court should also examine issues
related to the expected compliance costs in light of Rule 45’s provision that nonparties be
protected against significant expense. Jackson, 1992 WL 404537, at *5 (“If a court finds that an
indigent party’s requests for issuance and service of a subpoena duces tecum . . . would be
reasonably certain to result in the indigent’s responsibility for significant compliance costs for
which he cannot provide, or is otherwise unreasonable or abusive of the court’s process, the court
may relieve the Marshals Service of its duty under § 1915(c) to serve the subpoenae.”).
Plaintiff is cautioned that before he attempts to serve a Rule 45 subpoena, he must serve
Defendant with a notice that the subpoena will be issued. See Rule 45(a)(4). Failure to comply
with the prior notice requirement could result in the imposition of sanctions, including the
exclusion of any evidence produced or the imposition of monetary sanctions. See 9 James Wm.
Moore, et al., Moore’s Federal Practice, § 45.21[3][a] (3d ed. 2015). Adequate notice requires
Plaintiff to specifically identify the entities or persons he seeks to subpoena, and the documents he
is requesting. Otherwise, the defendant is not given a reasonable opportunity to object to the
production. See id.

3

Accordingly,
IT IS HEREBY ORDERED that the Clerk of the Court shall send Plaintiff two blank
subpoena forms, which Plaintiff may fill out as required by this Memorandum and Order and
return to the Court with a Memorandum for Clerk requesting that the subpoena be served by the
U.S. Marshal.
IT IS FURTHER ORDERED that if Plaintiff requests additional blank subpoena forms
in the future, each such request must be accompanied by a Memorandum for Clerk that includes
the following information for each requested subpoena: (1) the name of the person or entity
Plaintiff seeks to serve; (2) the specific documents Plaintiff seeks; (3) how the specified
documents are relevant to Plaintiff’s case; (4) why Plaintiff believes the person or entity to be
subpoenaed has possession of the documents; and (5) how Plaintiff will provide the necessary
costs related to document productions.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

Dated this 20th day of November, 2017.

4

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the
__________ District of __________
)
)
)
)
)
)

Plaintiff

v.

Defendant

Civil Action No.

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To:
(Name of person to whom this subpoena is directed)

Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
material:

Place:

Date and Time:

Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date:
CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail address, and telephone number of the attorney representing (name of party)
, who issues or requests this subpoena, are:

Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things or the
inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before
it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
I received this subpoena for (name of individual and title, if any)
on (date)

.
I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

.

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.

(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.

(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required 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.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or

(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the
__________ District of __________
)
)
)
)
)
)

Plaintiff

v.

Defendant

Civil Action No.

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To:
(Name of person to whom this subpoena is directed)

Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
material:

Place:

Date and Time:

Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date:
CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail address, and telephone number of the attorney representing (name of party)
, who issues or requests this subpoena, are:

Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things or the
inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before
it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
I received this subpoena for (name of individual and title, if any)
on (date)

.
I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

.

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.

(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.

(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required 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.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or

(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).