Sampson v. Schenck et al

Filing 628

ORDER denying as moot (596) Motion to Quash in case 8:07-cv-00155-JFB-TDT; denying as moot (470) Motion to Quash in case 8:08-cv-00107-JFB-TDT. Ordered by Magistrate Judge Thomas D. Thalken. (AOA) Modified on 5/8/2013 to change title document(AOA).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICHOLAS SAMPSON,
Plaintiff,

8:07CV155

vs.
INV. EARL SCHENCK, in his official
and individual capacities; INV.
WILLIAM LAMBERT, in his official and
individual capacities; SGT. SANDY
WEYERS, in her official and individual
capacities; INV. CHARLES
O’CALLAGHAN, in his individual and
official capacities; DOES 1-8, in their
official and individual capacities;
CASS COUNTY SHERIFF’S OFFICE, a
Nebraska political subdivision; DAVID
KOFOED, in his official and individual
capacities; and DOUGLAS COUNTY
SHERIFF’S OFFICE, a Nebraska
political subdivision,

ORDER

Defendants,
MATTHEW LIVERS,
8:08CV107
Plaintiff,
vs.
EARL SCHENCK, Cass County
Sheriff’s Investigator; WILLIAM
LAMBERT, Nebraska State Patrol
Investigator; CHARLES
O’CALLAGHAN, Nebraska State Patrol
Investigator; SANDRA WEYERS, Cass
County Sheriff’s Sergeant; COUNTY
OF CASS, NEBRASKA; DAVID
KOFOED, Commander of the Douglas
County Sheriff’s Office Crime Scene
Investigation Division; TIM DUNNING,
Sheriff of Douglas County; and
COUNTY OF DOUGLAS, Nebraska,
Defendants.

ORDER

This matter is before the court on the defendants’, William Lambert (Lambert)
and Charles O’Callaghan (O’Callaghan), Motion to Quash Plaintiff’s Non-Party
Subpoena (Filing No. 596 in Sampson v. Schenck, et al., 8:07CV155; Filing No. 470 in
Livers v. Schenck, et al., 8:08CV107)1. The defendants filed a brief (Filing No. 597)
and an index of evidence (Filing No. 598) in support of the motion.

No parties

responded to the defendants’ motion.

BACKGROUND
This case arises from an investigation into the April 17, 2006, murders of Wayne
and Sharmon Stock in Murdock, Nebraska. The plaintiffs, Livers and Sampson, were
arrested and jailed awaiting trial for the murders after Livers confessed to the murders
and implicated Sampson as an accomplice. Subsequently, after different individuals
confessed to the murders, Livers and Sampson were released from jail and charges
were dropped without prejudice.
On June 3, 2009, Sampson filed an amended complaint alleging violations of his
civil rights arising from the homicide investigation.

See Filing No. 232 - Amended

Complaint in Sampson. Sampson seeks monetary damages for violations of his civil
rights under the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the
United States Constitution. Id. Sampson generally alleges the defendants fabricated
evidence to create the appearance of probable cause to justify Sampson’s arrest,
arrested Sampson without probable cause, and concealed exculpatory evidence. Id.
The defendants include certain Nebraska State Patrol (NSP) investigators who led the
investigation into the April 17, 2006, murders. Id. ¶ 3. The defendants Lambert and
O’Callaghan were NSP investigators. Id.
The defendants seek to quash a subpoena duces tecum they allege Sampson
intends to issue upon the legal division of the NSP requesting documents showing
costs the State of Nebraska spent on the Stock murder investigation and documents
showing Lambert’s and O’Callaghan’s salary, benefits, and overtime paid between April
16, 2006, and October 6, 2006. See Filing No. 596 - Motion. The defendants argue the
subpoena subjects the NSP to an undue burden because the information sought is not
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The court will cite to Sampson v. Schenck, et al., 8:07CV155 unless otherwise noted.
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tracked or stored in the form requested and would necessitate creation of reports and
documents that do not exist.

See Filing No. 597 - Brief p. 1-4.

Additionally, the

defendants argue the cost of the investigation and salary, benefits, and overtime paid to
Lambert and O’Callaghan are completely unrelated to Sampson’s claims that the
defendants violated his constitutional rights. Id.

ANALYSIS
Under the Civil Rules of the United States District Court for the District of
Nebraska (NECivR) Rule 45.1, a party seeking to issue a subpoena to a nonparty is
required to provide notice to the adverse party. See NECivR 45.1. After receipt of the
notice, the adverse party has seven days to serve the noticing party with written
objections to the subpoena and file a certificate of service of such objections with the
court. See id. If the parties are unable to resolve the objections, the parties should file
an appropriate motion in accordance with NECivR 7.1. See id. Under NECivR 7.1(i),
the parties are required to meet and confer and make sincere attempts to resolve any
discovery issues. See NECivR 7.1(i). Additionally, under NECivR 7.1(i), the moving
party is required state the date, time, and place of all communications to resolve the
parties differences. See id.
Sampson’s notice of service of a subpoena on a nonparty is not on file and the
defendants did not provide the court with a copy of Sampson’s notice or the nonparty
subpoena.

Therefore, the court is unable to review the nonparty subpoena.

Additionally, the defendants failed to file a notice of objection with the court as directed
by NECivR 45.1(b) evidencing the defendants served Sampson with written objections
to the subpoena. Further, the defendants did not represent the parties attempted to
resolve the defendants’ objections as required by NECivR 45.1 prior to seeking court
involvement.

Instead, the defendants filed the instant motion.

Nevertheless, the

defendants did not show compliance with NECivR 7.1 in filing the motion.

The

defendants have not shown the parties sincerely attempted to resolve their differences
in accordance with NECivR 7.1(i). If Sampson continues to seek the information from
the NSP, the defendants shall follow the procedures provided in NECivR 45.1 and 7.1.
For the foregoing reasons, the defendants motion is denied.
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IT IS ORDERED:
The defendants’ Motion to Quash Plaintiff’s Non-Party Subpoena (Filing No. 596
in Sampson v. Schenck, et al., 8:07CV155; Filing No. 470 in Livers v. Schenck, et
al., 8:08CV107) is denied without prejudice.

Dated this 8th day of May, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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