Charles Allen, et al vs Gregory Damm, et al

Filing 372

ORDER that 339 Motion to Quash Subpoenas EMailed by Plaintiffs Lori Kahre and Lee Belcher and for a Protective Order Regarding Other Discovery Sent by them on October 5, 2012 (#339) is granted. The subject subpoenas shall be quashed. FURTHER ORDERED that a protective order is hereby entered regardingDefendants' obligation to respond to the subject subpoenas and requests. Signed by Magistrate Judge George Foley, Jr on 1/28/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES ALLEN, et al.,

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Plaintiffs,
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vs.
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UNITED STATES OF AMERICA, et al.,
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Defendants.
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__________________________________________)

Case No. 2:03-cv-01358-DAE-GWF
ORDER
Motion to Quash (#339)

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This matter comes before the Court on Federal Defendants’ Motion to Quash and for a

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Protective Order (#339), filed on October 17, 2012. The time to file any opposition expired on

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November 5, 2012.
The basis of Plaintiffs’ one remaining claim1 is a Bivens action claiming IRS employee

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Dennis Crowther conducted an illegal search of their residence. Defendants represent that on

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October 5, 2012, Plaintiffs Lori Kahre and Lee Belcher (“Plaintiffs”) sent to Defendants via

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electronic mail notices of depositions for defendants Gregg Damm, Dennis Crowther and Jared

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Halper, and for five non-party IRS employees (“Non-Parties”). Plaintiffs included document

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requests with each notice. Plaintiffs noticed the depositions for October 17, 2012 in Las Vegas,

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two days before the close of discovery as set forth in the Court’s Scheduling Order (#309).

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Defendants further represent that they offered to stipulate to the depositions of Damm, Crowther,

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and Halper on condition that the depositions be limited to the remaining claim. Plaintiffs declined,

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but offered to postpone the depositions until the dispute was resolved. Defendants now move to

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#56).

See District Court’s October 4, 2004 Order granting Defendants’ Motion to Dismiss (Doc.

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quash the subpoenas and for a protective order providing that Defendants need not respond to the

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subpoenas.

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Defendants submit several arguments in support of their Motion. First, Defendants assert

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the Non-Parties were not properly served with the subpoenas under Federal Rule of Civil Procedure

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45(b). Defendants represent that Plaintiffs did not respond to their inquiries whether the Non-

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Parties were served, and that Defendants are not authorized to accept subpoenas on Non-Parties’

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behalf. Second, Defendants argue that all of the subpoenas were untimely. Under Rule 30(b)(1),

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parties must give deponents “reasonable” written notice. Here, Plaintiffs scheduled the depositions

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12 days after notice was given. Because some of the parties and Defendants’ Counsel reside out of

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state, Defendants submit this notice was not reasonable. Non-Parties are also entitled to

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“reasonable time” to comply with subpoenas under Rule 45(c)(3)(A)(i). Insofar as Non-Parties

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were served, Defendants argue such service was untimely for the same reasons. Furthermore, Rule

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34(b)(2)(A) allows parties 30 days to respond to requests for production of documents. As noted,

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Defendants were only afforded 12 days to respond. Finally, Defendants assert the requests for

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documents are over-broad. Under Rule 26(b)(1), discovery must relate to the party’s claim. In the

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subpoenas, Plaintiffs consistently refer to “raids” and “search warrants,” although Plaintiffs’ only

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remaining claim relates to one search warrant executed at one raid cite.

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Having considered the pleading papers and Defendants’ arguments, the Court finds that the

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subpoenas were served untimely as to all parties. The Court also finds the requests for documents

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are over-broad. Moreover, under Local Rule 7-2(d), the failure of an opposing party to file points

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and authorities in response to any motion shall constitute a consent to the granting of the motion.

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The time to oppose the instant Motion has expired, and no opposition has been filed. Accordingly,

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IT IS HEREBY ORDERED that Federal Defendants’ Motion to Quash Subpoenas E-

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Mailed by Plaintiffs Lori Kahre and Lee Belcher and for a Protective Order Regarding Other

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Discovery Sent by them on October 5, 2012 (#339) is granted. The subject subpoenas shall be

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quashed.

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IT IS FURTHER ORDERED that a protective order is hereby entered regarding
Defendants’ obligation to respond to the subject subpoenas and requests.
DATED this 28th day of January, 2013.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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