Ferreira v. Town of East Hampton et al

Filing 36

ORDER re 35 : See attached order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 3/27/2014. c/ecf (Miller, Dina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THOMAS FERREIRA,
Plaintiff,
ORDER
CV 12-2620 (JFB)(ARL)

-againstTOWN OF EAST HAMPTON, et al.,
Defendants.
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LINDSAY, Magistrate Judge:

Before the court is the defendants’ letter application dated March 18, 2014, requesting
that the court compel non-party witnesses, Austin Manghan, Esq. and Thomas Horn, Esq., to
respond to the document requests set forth in subpoenas served on them on September 19 and 24,
2013, respectively. According to the defendants, Messrs. Manghan and Horn both appeared for
depositions, but failed to produce the requested documents. However, at or following the
depositions both witnesses agreed to produce non-privileged materials in their files. Neither
witness has objected to the document requests or responded to this motion. The plaintiff has also
not responded to the motion.
Absent an improperly issued subpoena or an “adequate excuse” by the non-party, failure
to comply with a subpoena made under Rule 45 may be deemed a contempt of the court from
which the subpoena issued. Fed. R. Civ. P. 45(e). Indeed, the judicial power to hold a non-party
who has failed to obey a valid subpoena in contempt is the primary mechanism by which a court
can enforce a subpoena. See Practice Commentary to Rule 45(e). Having examined the
subpoenas and the deposition transcript from the Manghan deposition, the court finds that the
subpoenas in question were valid and properly served upon the deponents.
Accordingly, Messrs. Manghan and Horn are directed to produce the non-privileged documents
requested in their respective subpoenas by April 4, 2014.
The defendants’ request to have the undersigned recommend that Messrs. Manghan and
Horn be held in contempt is denied, at this time. However, both gentleman are warned that if
they fail to comply with this order, they could be subject to contempt proceedings before the
district judge for failure to respond to the subpoena and this order. The plaintiff is directed to
serve a copy of this order on Messrs. Manghan and Horn by certified mail.
Dated: Central Islip, New York
March 27, 2014

SO ORDERED:

________/s/_______________________
ARLENE ROSARIO LINDSAY
United States Magistrate Judge