UNITED STATES OF AMERICA v. Sizemore

Filing 16

ORDER granting 13 Motion to Compel. Signed by US Magistrate Judge James E. Gates on 4/18/2012. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

7:11-CV-77-D

UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMES D. SIZEMORE,
Defendant.

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ORDER

This case comes before the court on the motion (D.E. 13) by plaintiff United States of
America ("plaintiff') for the issuance of a subpoena duces tecum to compel defendant James D.
Sizemore ("defendant") to appear, produce documents, and give testimony at a deposition.
Plaintiff has filed a memorandum (D.E. 14) in support of its motion. Defendant has not filed a
response. The motion has been referred to the undersigned for disposition pursuant to 28 U.S.C.
§636(b)(1)(A). (See D.E. 15). For the reasons and on the terms set forth below, the motion will
be allowed.

BACKGROUND
Plaintiff commenced this action on 13 April 2011 to collect on unpaid student loan debt.
(CompI. (D.E. 1)). Defendant failed to answer or otherwise respond to the complaint and on 25
May 2011, plaintiff filed a motion for entry of default (D.E. 4), which was allowed by the clerk
of court (D.E. 5). On 7 July 2011, plaintiff filed a motion for default judgment (D.E. 6), which
was allowed (D.E. 7), and judgment was entered (D.E. 8) against defendant on 4 August 2011.

DISCUSSION

I.

APPLICABLE LEGAL STANDARDS

In an action to collect federal judgment debt, the United States is permitted to take
discovery of the debtor's financial condition in the manner authorized by the Federal Rules of
Civil Procedures.

28 U.S.c. § 3015(a).

The Federal Civil Rules enable parties to obtain

information by serving requests for discovery, including the issuance of subpoenas.

See

generally Fed. R. Civ. P. 26-37, 45. Rule 45 outlines the procedure for issuing subpoenas and

directs a party to respond as requested, serve objections, or timely file a motion to quash or
modify the subpoena. Fed. R. Civ. P. 45(c)(2)(B), (c)(3); see also In re Subpoena to Robert
Kochan, No. 5:07-MC-44-BR, 2007 WL 4208555, at *4 (E.D.N.C. 26 Nov. 2007) ("Rule 45

expressly permits a party to issue discovery subpoenas to a nonparty for documents and things in
the nonparty's possession, custody, or control.") (citing Fed. R. Civ. P. 45(a)(I)(C)). "Rule 45
adopts the standard codified in Rule 26" in determining what is discoverable.

Schaaf v.

SmithKline Beecham Corp., 233 F.R.D. 451,453 (E.D.N.C. 2005).

Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense . . . . For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(l). The rules of discovery, including Rule 26, are to be given a broad and
liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd of Governors,
No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000). While Rule 26 does
not define what is deemed relevant for purposes of the rule, relevance has been '''broadly

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construed to encompass any possibility that the information sought may be relevant to the claim
or defense of any party.'" Equal Employment Opportunity Comm 'n v. Sheffield Fin. LLC, No.
1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007) (quoting Merrill v. WajJle
House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)). The district court has broad discretion in
determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482,
489 (4th Cir. 1992).
Where a party timely files a motion to quash a subpoena that fails to allow a reasonable
time to reply, requires disclosure of privileged or protected matter, or imposes an undue burden,
the court must quash or modify the subpoena. Fed. R. Civ. P. 45(c)(3)(A)(i), (iii), (iv); see also
Robinson v. Equifax, No. 4:10-CV-84-BO, 2011 WL 285232, at *4 (E.D.N.C. 26 Jan. 2011); In
re Subpoena to AGL, LLC, 550 F. Supp. 2d 606, 612 (E.D. Va. 2008) ("A subpoena imposes an
undue burden when a subpoena is overbroad."). In addition, the court may quash a subpoena if
it, among other things, compels disclosure of a trade secret or requires a nonparty to incur
substantial expense. Fed. R. Civ. P. 45(c)(3)(B)(i), (iii); see also Sec. & Exchange Comm. v.
White, No. 8:11-944-HMH, 2011 WL 1544202, at *2 (D. S.c. 22 Apr. 2011).
II.

PLAINTIFF'S PROPOSED SUBPOENA
Plaintiff requests court approval for the issuance of a subpoena to defendant to compel

him to attend, give testimony, and provide the requested documents. It previously served on
defendant a notice of deposition and subpoena duces tecum requiring him to appear for
deposition on 15 September 2011 (D.E. 14-1). Defendant did not so appear or otherwise object,
and plaintiff accordingly filed the instant motion to compel him to comply.

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The court has reviewed the subpoena proposed by plaintiff and finds it to be reasonable.
Therefore, the motion is ALLOWED. Plaintiff is permitted to re-serve its notice of deposition
and subpoena decus tecum (D.E. 14-1) as proposed with the exception of providing a new date
and time for compliance that is at least 14 days from the date of this Order. Defendant is hereby
ORDERED to comply with plaintiffs re-issued subpoena.
CONCLUSION

For the foregoing reasons, IT IS ORDERED that plaintiffs motion to compel for the
issuance of a subpoena duces tecum (D.E. 42) is ALLOWED and plaintiff may serve its
proposed subpoena on the terms set forth above. Defendant is ordered to comply.
SO ORDERED, this the ~ day of April 2012.

United States Magistrate Judge

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