Gonzalez v. Peterson
ORDER granting in part and denying in part 25 Motion to Quash Signed by Judge Susan P. Watters on 6/16/2017. (EMH)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JUN 1 6 2017
Cler1<, U.S. District Court
District Of Montana
HECTOR GUILLERMO SMITH
MAC DONALD GONZALEZ,
WHITNEY MERLYNN PETERSON,
Before the Court is nonparties Tim and Connie Peterson's Motion to Quash
subpoenas issued by Hector Gonzalez, or in the alternative, for a protective order.
(Doc. 25). For the following reasons, the Court grants in part and denies in part the
On March 14, 2017, Gonzalez filed a Petition for Return of Child to
Petitioner pursuant to the 1980 Hague Convention on the Civil Aspects of
International Child Abduction and the International Child Abduction Remedies
Act, 42 U.S.C. §§ 11601-11610. (Doc. 1). Gonzalez's petition alleges Whitney
Peterson, his wife, wrongfully removed the couple's two children from their
habitual residence in Mexico City, Mexico. (Doc. 1 at 5). At the time of filing, it
was Gonzalez's belief that Whitney was holding the children at her parent's home
in Livingston, Montana. (Doc. 1 at 7).
Gonzalez has been unable to locate Whitney to serve her with the Petition.
Gonzalez moved the Court for leave to conduct discovery for the limited purpose
of locating Whitney so that she may be served. (Doc. 21 ). The Court determined
good cause existed to conduct limited discovery and granted Gonzalez's motion.
(Doc. 23). Gonzalez subpoenaed Whitney's parents, Tim and Connie Peterson (the
Petersons ), to attend depositions and produce documents and communications
concerning the Petersons' interactions with Whitney over the past year. (Docs. 257 and 25-8). Gonzalez scheduled the depositions to take place in Livingston,
where Tim and Connie Peterson live. (Doc. 25-8 at 1). Gonzalez made twelve
specific requests for documents. (Doc. 25-8 at 3-4). Document request numbers 1
and 2 contained the limitation "related to [Whitney's] present whereabouts and her
whereabouts over the course of the previous year." (Doc. 25-8 at 3). Document
request numbers 3, 4, and 5, did not contain the limitation. (Doc. 25-8 at 3-4).
The Petersons contacted Gonzalez and stated they have no information
regarding the whereabouts of Whitney and the children. (Doc. 25-7). Gonzalez
responded that he would accept sworn affidavits in lieu of depositions. (Doc. 257). Gonzalez provided the Petersons with prepared affidavits and agreed to delay
the depositions pending the Petersons' response. (Doc. 25-7).
The Petersons did not sign Gonzalez's prepared affidavits. Instead, the
Petersons filed a motion to quash the subpoenas and submitted sworn declarations
stating, among other things, the following:
I do not have any reason to believe that Whitney has traveled or
intends to travel to Montana.
Whitney has not revealed her location (or that of the children)
I do not know Whitney or the children's location or where they
intend to reside now or in the future.
(Doc. 25-3 at 5-6; Doc. 25-2 at 4-5).
Broad discretion is vested in the trial court to permit or deny discovery.
Kobold v. Good Samaritan Regional Medical Center, 832 F.3d 1024, 1047 (9th
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. Fed. R.
Civ. P. 45(d)(3)(A)(i-iv). Any person from whom discovery is sought may move
for a protective order in the court where the action is pending. Fed. R. Civ. P.
The Petersons make five arguments. First, they argue the Court should
quash the subpoenas because Gonzalez has not established good cause for
discovery prior to the Rule 26(f) conference. Second, they argue the Court should
quash the subpoenas because the Court may not have personal jurisdiction over
Whitney. Third, they argue the Court should issue a protective order if it does not
quash the subpoenas. Fourth, they argue the Court should grant the Petersons costs
and attorney fees incurred in responding to the subpoenas. And fifth, they argue
counsel for Gonzalez should be excluded from the proceedings because, in their
view, she is a necessary lawyer-witness on the issue of whether there is good cause
for discovery prior to the Rule 26(f) conference.
Good cause for discovery prior to the Rule 26(f) conference
The Petersons' good cause argument fails for two reasons. First, the Court
has already determined good cause exists for discovery prior to the Rule 26(£)
conference. (Doc. 23). Second, an absence of good cause for discovery prior to
the Rule 26(£) conference is not one of the delineated grounds for quashing a
subpoena. See Fed. R. Civ. P. 45(d)(3)(A)(i-iv). The Petersons' motion is denied.
The Petersons' jurisdiction argument fails for three reasons. First, only
Whitney may challenge this Court's exercise of personal jurisdiction over her. See
Fed. R. Civ. P. 12(b) ("[A] party may assert the following defenses by motion)
(emphasis added). Second, a lack of personal jurisdiction over the defendant is not
one of the delineated grounds to quash a subpoena. See Fed. R. Civ. P.
45(d)(3)(A)(i-iv). And third, the limited purpose of discovery prior to the Rule
26(f) conference is to determine Whitney's whereabouts so that she may be served
with the Petition. Whether the Court has personal jurisdiction over Whitney is an
issue addressed after service. See Fed. R. Civ. P. 12(b)(2). The Petersons' motion
The Court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense,
including forbidding the discovery or limiting the scope of disclosure or discovery.
Fed. R. Civ. P. 26(c)(l). To show good cause, a person must demonstrate that
specific prejudice or harm will result if no protective order is granted. Phillips ex
rel. Estates ofByrd v. General Motors Corp., 307 F.3d 1206, 1210-1211 (9th Cir.
The Petersons argue Gonzalez's subpoena for financial documents and
communications with Whitney are burdensome and oppressive. The Court agrees,
The Court's order granting discovery prior to the Rule 26(f) conference
states "[Gonzalez] may conduct discovery for the limited purpose of trying to
determine [Whitney's] whereabouts for purposes of service of process." (Doc. 23).
Document request numbers 3, 4, and 5 establish good cause to issue a protective
order because they go beyond the scope of the Court's discovery order and are
therefore burdensome and oppressive. Whereas document request numbers 1 and
2 are limited to documents related to Whitney's present whereabouts and her
whereabouts over the course of the previous year, document request numbers 3, 4,
and 5 contain no such limitation. (Doc. 25-8 at 5-6). Instead, document request
numbers 3, 4, and 5 request all direct and indirect communications with Whitney
during the previous year, whether the communications are related to Whitney's
present and previous whereabouts or not. (Doc. 25-8 at 5-6). The Court reiterates
that discovery is limited to the purpose of determining Whitney's whereabouts and
amends document request numbers 3, 4, and 5 to include the limitation "related to
Whitney's present whereabouts and her whereabouts over the course of the
The Petersons also argue they may suffer harm by disclosure of financial
records as requested in document request numbers 10, 11, and 12. (Doc. 25-8 at
6). The Court agrees that financial records have the potential to cause tangible
harm. However, the Court is also cognizant that the financial records may contain
information concerning Whitney's present and past whereabouts. The Court orders
the parties to confer and file a stipulated proposed protective order that limits the
disclosure of any documents produced in response to document request numbers
10, 11, and 12.
The Petersons' motion is granted in part and denied in part.
Costs and fees
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. Fed. R. Civ. P. 45(d)(l). The Court 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. Fed. R. Civ. P.
The Court denies the Petersons' request to order Gonzalez to pay their costs
and attorney's fees incurred in filing the motion to quash and for a protective order.
Gonzalez took reasonable steps to avoid imposing significant costs on the
Petersons, including arranging to depose the Petersons where they live, offering to
rearrange depositions to accommodate schedules, and preparing affidavits for the
Petersons to sign in lieu of depositions. The Petersons' motion is denied.
Exclusion of Gonzalez's counsel
Rule 3.7 of the Montana Rules of Professional Conduct states "[a] lawyer
shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness unless ... the testimony relates to an uncontested issue."
The Petersons argue counsel for Gonzalez must be excluded because she is a
necessary lawyer-witness on the issue of whether there is good cause for discovery
prior to the Rule 26(f) conference. As stated above, the Court has already
determined good cause exists for discovery prior to the Rule 26( f) conference.
(Doc. 23). Counsel for Gonzalez is not a necessary lawyer-witness because good
cause is not a contested issue. The Petersons' motion is denied.
For the foregoing reasons, the Court grants in part and denies in part the
DATED this /0~of June, 2017.
United States District Judge
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