Bourne v. Arruda

Filing 138

ORDER denying 137 Motion for Contempt. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samuel J. Bourne
v.

Civil No. 10-cv-393-LM

John R. Arruda, Jr., et al.

O R D E R
Before the court is Bourne's motion for contempt (doc. no.
137), which includes a request for an order finding a third
party, Robert King, in contempt of court for failing to comply
with a subpoena, and compelling King to produce the documents or
electronic information listed in the subpoena without redaction.1
For the following reasons, the motion for contempt (doc. no.
137) is denied.

Background
Bourne was issued a blank subpoena by the court.

Bourne

filled it in, directing King to produce, by August 17, 2012, the
“email addresses used by King in distributing case updates
relating to the Bourne litigation . . . and copies of all of his
1

In a separate order issued on this date, the court has
granted Bourne’s expedited motion (doc. no. 135) for leave to
file the motion for contempt and has directed the clerk to
docket the motion for contempt as filed on the date of this
order.

emails relating either to this defamation case, or to
defendants’ alleged defamation of Bourne at the June 2010 and
February 2011 selectmen’s meetings.”

King served Bourne with an

objection to the subpoena, stating that the subpoena is unduly
burdensome, overbroad, invasive of his privacy, likely to chill
his First Amendment rights, and not reasonably likely to lead to
admissible evidence.

King asserted that he would produce

documents in response to the subpoena after redacting the names
and email addresses and other unrelated material.

Additionally,

King stated his intention to withhold privileged work product
and attorney-client communications.

Discussion
I.

Request for Finding of Contempt
If a person receives a subpoena for the production of

documents and thereafter serves a timely objection to that
subpoena, the person is not required to comply with the subpoena
until subsequently ordered to do so by the court.

See Fed. R.

Civ. P. 45(c)(2)(B); 9A Chas. Wright et al., Fed. Prac. & Proc.
Civ. § 2463 (3d ed.).

This court has not issued an order

compelling King to comply with Bourne’s subpoena.
King is not in contempt of any court order.

2

Accordingly,

II.

Request for Order to Compel
Bourne requests that the court compel King to produce the

information listed in the subpoena.

King has stated an

intention to withhold three types of information, as follows:
(1) the names and email addresses of third parties who receive
emails from him; (2) other information that King considers
unrelated to Bourne or to this litigation; and (3) privileged
attorney-client communications and attorney work product,
relating to King’s communications with counsel and/or codefendants in prior litigation, which King has agreed to list in
a privilege log.
As to the email addresses of third parties and other
information unrelated to Bourne and the issues in this case, the
motion to compel is denied as Bourne has failed to show that his
discovery of such third party correspondence and contact
information is likely to yield any relevant and/or admissible
evidence relating to any claim or defense in this case.

As to

documents that King deems privileged, King has yet to produce a
privilege log, and Bourne has failed to show that any
unprivileged, discoverable documents will be withheld by King.
If, after King produces the promised privilege log, Bourne and
King are unable to resolve any issues relating to any specific

3

documents that King may choose to withhold or redact, Bourne
may, at that time, renew his motion to compel.
The court has considered the remaining issues in the motion
(doc. no. 137) and finds those issues to be without merit.

Conclusion
For the foregoing reasons, the court denies the motion
(doc. no. 137).

The clerk is directed to mail a copy of this

order to Robert King, at the address provided by Bourne.

See

Subpoena (doc. no. 135-2).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
August 20, 2012
cc:

Samuel J. Bourne, pro se
Brian J.S. Cullen, Esq.
Robert King

LBM:nmd

4