Lewton et al v. Divingnzzo et al

Filing 110

ORDER denying 108 Motion to Compel. Ordered by Magistrate Judge F.A. Gossett. (CLS, )

L e w t o n et al v. Divingnzzo et al

D o c . 110

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA W I L L I A M DUANE LEWTON, et al., P l a i n t if fs , vs. D I A N N A DIVINGNZZO, et al., D e f e n d a n t s. ) ) ) ) ) ) ) ) )

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T h i s matter is before the court on the renewed motion (Doc. 108) of defendants, D ia n n a Divingnzzo and Sam M. Divingnzzo ("Divingnzzos") to compel the production of s u b p o e n a e d documents from the Nebraska Department of Health and Human Services (" N D H H S " ). In general, the procedure for procuring compliance with a third-party subpoena is as f o llo w s . Under the Local Rules of Practice, NECivR 45.1(a), the party or parties requesting third-pa rty discovery (here, the Divingnzzos) must begin by serving notice to the other parties (h e re , the plaintiffs and the codefendants) of their intention to serve the third-party subpoena (s e e Fed. R. Civ. P. 45(b)(1)). The notice must state "the name and address of the nonparty b e in g subpoenaed, the documents or items to be produced or inspected, the time and place f o r production or inspection, and the date on which the subpoena will issue." NECivR 4 5 .1 (a ). The adverse parties then have 7 days to serve written objections to the proposed s u b p o e n a . NECivR 45.1(b). If objections are served, then the proposed subpoena may not be issued until all o b je c tio n s are resolved by the court; however, the court will not rule on any objections unless a party files an appropriate motion in accordance with NECivR 7.0.1.1 The court notes that on September 23, 2010, plaintiffs' counsel filed an Objection (Doc. 99) to the issuance of subpoenas upon Patricia Wicks, Christine Baccari, Stephanie Peterson, and Layne Prest. No party has filed an appropriate motion to obtain a ruling on the objection. In any event, plaintiffs' objection does not appear to be relevant to Divingnzzos' present attempt to subpoena records from NDHHS.
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If no objections are served by a party to the lawsuit, then the requesting party (here, th e Divingnzzos) may go ahead and serve the subpoena on the nonparty (here, NDHHS) in a c c o rd a n c e with Fed. R. Civ. P. 45. Once a third-party subpoena is actually served, then the recipient may elect to produce the information in accordance with Rule 45(d), serve objections under Rule 45(c)(2)(B), m o v e to quash the subpoena under Rule 45(c)(3), or request a protective order under Fed. R. C iv . P. 26(c). If there are legitimate grounds to do so, parties to the lawsuit may also move to quash the subpoena under Rule 45(c)(3) or for a protective order under Rule 26(c). If the n o n p a rty (here, NDHHS) responds to the subpoena by serving objections, then the serving p a r t y (here, the Divingnzzos) bears the burden of going forward by moving for an order c o m p e llin g production or inspection. Fed. R. Civ. P. 45(c)(2)(B)(i). In this instance, the record shows that Divingnzzos are attempting to procure from N D H H S "the complete file for Dianna Divingnzzo, DOB: [redacted] and Ellenna D iv in g n z z o , DOB: [redacted]." Notice to this effect was served on NDHHS on August 20, 2 0 1 0 (see Doc. 108-1), but was not served on the other parties to this lawsuit until September 1 5 , 2010 (see Doc. 101-1 at ¶ 2) 2 . Divingnzzo's prior motion to compel (Doc. 101, filed 1 0 /6 /2 0 1 0 ), incorporated an unsigned "subpoena" commanding NDHHS to produce the re c o rd s on or before October 30, 2010. Although the Divingnzzos advised NDHHS as early as August 20, 2010 that they in te n d e d to request certain files by subpoena, the record does not show that any subpoena w a s actually served on NDHHS. Rather, an attorney for NDHHS (which is not a party to this law su it) states by affidavit that he received Divingnzzos' attorney's "Notice of Subpoena to th e Department of Health and Human Services on the 20th of August, 2010." Based on prior experience, the court assumes that NDHHS is under some obligation to raise objections based on statutory privileges or requirements3 when it is served with

Moving counsel advises that the other parties to this lawsuit do not object to Divingnzzos obtaining these records from NDHHS. (Doc. 108). NDHHS is subject to many confidentiality requirements. For example, in Fletcher v. Brown County, Case No. 7:05cv5024, at Doc. 245, NDHHS moved for a protective order, asserting that its -23

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s u b p o e n a s for confidential client records. In this instance, it does not appear that any s u b p o e n a has been served; thus, the actual objections of NDHHS, if any, are not of record. If it turns out that Divingnzzos actually did serve a subpoena on NDHHS, and NDHHS failed to respond or served written objections as required by Fed. R. Civ. P. 45, then Divingnzzos w o u ld bear the burden of filing a motion to compel compliance with the subpoena. That w o u ld entail filing an evidence index with authenticated copies of the subpoena, information a b o u t exactly when it was served, and a verbatim copy of NDHHS' written objections. See N E C iv R 45.1(b) and 7.0.1. In summary, the court will not prospectively order NDHHS to produce confidential rec o rds pursuant to a subpoena that has not been served, without any kind of protective order, b ase d on moving counsel's advice that NDHHS "just needs an Order from the Court before tu rn in g over the documentation requested by the Subpoena." D e f en d a n ts ' motion to compel (Doc. 108) is denied. D A T E D November 2, 2010. B Y THE COURT: s / F.A. Gossett, III U n ite d States Magistrate Judge

records are confidential and protected by state and federal law, specifically Neb. Rev. Stat. §§ 28-719, 28-725, 28-726, 28-730, 43-3001 and 43-2,108 and the Child Abuse and Prevention Act (CAPTA), 42 U.S.C. § 5101, et seq. See also Neb. Rev. Stat. §§ 81-669, 83-109 & 84-712.05. -3-