Pearson v. Pausha

Filing 43

ORDER denying 42 Motion for Subpoenas. Signed by Judge Donald W. Molloy on 9/19/2011. Mailed to Pearson with docket and subpoena forms as directed. (TAG, ) Modified on 9/20/2011 to correct filing date (TAG, ).

FILED

IN THE UNITED STATES DISTRICT COURT

SEP 2 0 2011
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
OLIVER EMANUEL PEARSON,

PATRICK E. DUFFY. CLERK
By
..
DePl/TY cli!Rt<. MISSOULA

Cause No. CV 1O-0003S-H-DWM

Plaintiff,
ORDER

vs.
LARRY PASHA,
Defendant.
Pending is Plaintiff Oliver Pearson's Motion for Subpoenas filed September
7,2011. (Court Doc. 42). Mr. Pearson requests subpoenas for Investigator
Richard Collins's report pertaining to the July IS, 2009 incident; all incident
reports made against Larry Pasha during the time he was employed at Montana
State Prison; a criminal investigation background check; Larry Pasha's employee
work location designation between 2007 and 2009 and on July IS, 2009; the
record in this case; witness William Kelley, and witness John Shaack.
As set forth in the August 30,2011 trial scheduling order (Court Doc. 41),
the United States Marshals Service will be required to serve proper subpoenas
requested by Mr. Pearson. Those requests are due on or before October 7, 2011.
But as set forth in the August 30,2011 Order (Court Doc. 41), those subpoena

requests must comply with several requirements. First, to the extent Mr. Pearson
is seeking a subpoena for witnesses to bring documents to trial and/or for
witnesses Kelley and Shaack to testifY at trial, he must provide the appropriate
witness fee. As set forth in the August 30, 2011 Order,
... Each witness is entitled to $40.00 plus mileage for the

distance between his or her home or work address and the courthouse

at a rate of51¢ per mile. See 28 U.S.C. § 1821(b), (c)(2), (1); Tedder

v. Odel, 890 F.2d 210 (9th Cir. 1989).
The witness fee must be paid by institutional check or money
order made payable to the witness. The check or money order must
be attached to Plaintiffs request to the Court to subpoena the witness.
The Court will not order service of any subpoena that is not
accompanied by the appropriate witness attendance fee.
(Court Doc. 41, p. 10, ~ I I (e)). Accordingly, Mr. Pearson must submit the
following amounts: (1) for William Kelley-$40.00 plus $26.52 for mileage for a
total of $66.52; and (2) for John Shaack-$40.00 plus $44.37 for a total of$84.37.
The Court will not direct the service of any subpoena until the appropriate witness
fee has been received. This ruling will not foreclose the testimony of any of the
individuals listed above. If these individuals are willing to voluntarily testifY, Mr.
Pearson can present them at trial. But, the Marshall's Office will not be ordered to
serve subpoenas without the appropriate witness fees.
In addition, with regard to the requests for subpoenas duces tecum
requesting that documents or materials be brought to trial there are several
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problems. First, requests for subpoena duces tecum must identifY the witness
whom is to be ordered to bring the items to trial and provide a current address for
that witness. Mr. Pearson has not provided this information with regard to his
requests for subpoenas duces tecum.
Secondly, the August 30, 2011 trial scheduling order requires that all
exhibits which Mr. Pearson intend to use at trial must be given to the Court and
exchanged with opposing counsel prior to October 7, 2011. Therefore, Mr.
Pearson must have a copy of any document he intends to use as evidence at trial
prior to October 7, 2011. Thus, if Mr. Pearson is using the subpoena process to
discover exhibits he wants to use for trial, he will be precluded from using those
exhibits unless those documents/materials have been provided to the Court and
exchanged with opposing counsel prior to October 7, 2011.
Finally, two requests for subpoenas are unclear. Mr. Pearson's request for a
"criminal investigation background check" is vague. Any request for subpoena
duces tecum must be specific in identifYing the items it seeks. It should be noted
that Mr. Pearson cannot use a subpoena duces tecum to have a criminal
background check done on someone. He must provide an offer of proof
concerning the existence ofthe document and the location ofthe document.
Subpoenas duces tecum can only be used to obtain documents already in
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existence.
It is also unclear what Mr. Pearson means to obtain by seeking a subpoena

for "the record in this case." The Clerk of Court will be directed to provide Mr.
Pearson a copy of the Court's docket. The record in this case is all electronically
stored as indicated on that docket. To the extent Mr. Pearson would like a
particular document from the record, he may make such a request to the Clerk of
Court's office and provide the appropriate copying fee of ten cents a page.
Mr. Pearson is again reminded that he need not subpoena any witness who

is on Defendant's will-call witness list. However, if Defendant moves before trial
to quash a subpoena to any of his will-call witnesses, and if Mr. Pearson opposed
quashing of the subpoena, Mr. Pearson may be required to pay that witness's fees.
The Clerk of Court will be directed to provide Mr. Pearson subpoena forms
for this action to be filled out and returned to the Clerk's Office with the
appropriate witness fees.
Accordingly, IT IS HEREBY ORDERED THAT:
1. Mr. Pearson's Motion for Subpoenas (Court Doc. 42) is denied.
2. The Clerk of Court is directed to provide Mr. Pearson with a copy of the
docket in this case and seven copies of subpoena forms filled out with the
appropriate case name, the address of the courthouse where trial will be
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conducted, and the date and time of triaL
3. Mr. Pearson must promptly inform the Court and opposing counsel for
the Defendant of any change of address.

'll-

\
Dated this __ day of September, 2011.

loy, District Judge
istrict Court

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