CARTER v. ARCHDALE POLICE DEPARTMENT et al

Filing 69

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 5/2/2014, that Assistant Clerk Haynes's Objection to Subpoena and Motion to Quash (Docket Entry 63 ) is GRANTED IN PART AND DENIED IN PART in that the subpoena at issue is modified to require production only of a copy of the contents of the state court file for case number 12CR53047. (Lloyd, Donna) (Incorrect event was selected and document has been refiled to correct the event.) (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAMES J. CARTER,
Plaintiff,
v.
ARCHDALE POLICE DEPARTMENT,
et al.,
Defendants.

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1:13CV613

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on an Objection to Subpoena
and Motion to Quash filed by Assistant Clerk of Superior Court
Richard Haynes (Docket Entry 63).
2014.)

(See Docket Entry dated May 2,

For the reasons that follow, the instant Motion will be

granted in part and denied in part, in that the Court will modify
the subpoena at issue to require production only of a copy of the
contents of the state court file for case number 12CR53047.1
BACKGROUND
Plaintiff, proceeding pro se, filed a Complaint alleging
violations of 42 U.S.C. § 1983 based largely on events related to
a

state

court

criminal

proceeding

identified

“12CRS53047” (Docket Entry 1 at 2 (¶ 1(a))).

1

as

case

number

(See id. at 2-32.)

As detailed in the Background section, the subpoena at issue
refers to case number “12CR53047” (Docket Entry 63-1 at 2 (emphasis
added)), whereas the Complaint refers to case number “12CRS53047”
(Docket Entry 1 at 2 (¶ 1(a)) (emphasis added)). The Court deems
this inconsistency a mere scrivener’s error and concludes from the
statement by Assistant Clerk Haynes appended to the instant Motion
(see Docket Entry 63-2 at 1) that he knows the case to which
Plaintiff refers in the subpoena at issue, regardless of whether
its case number actually includes the letters “CR” or “CRS.”

After the discovery period commenced (see Text Order dated Mar. 25,
2014), Plaintiff apparently obtained from a Deputy Clerk of this
Court a subpoena, bearing an issuance date of April 7, 2014,
directed

to

“Randolph

County

District

Court

Clerk,”

with

a

compliance deadline of noon on May 6, 2014 (Docket Entry 63-1 at
1).

The subpoena demands production of “[a]ll documents, records,

Court Files, Orders, transcripts, recordings, communications, emails, voicemails, or text messages related to Case 12CR53047
and/or a hearing scheduled and/or held in Randolph County District
Court in July 2012 in Case 12CR53047.”

(Id. at 2.)

On April 22, 2014, Assistant Clerk Haynes, through counsel and
via the Court’s CM/ECF system, filed the instant Motion.
Entry 63.)

(Docket

A document appended to the instant Motion, bearing the

letterhead of the Randolph County Clerk of Superior Court, as well
as the signature of Assistant Clerk Haynes, states that the Office
of the Randolph County Clerk of Superior Court received the abovedescribed subpoena “on April 8th . . . in regular first class mail.”
(Docket Entry 63-2 at 1; see also Docket Entry 67 at 2-3 (setting
out Plaintiff’s assertion that his wife served the subpoena in
question “on April 7, 2014,” but without reference to manner of
service).)

According to Assistant Clerk Haynes, because the

subpoena “dealt with a Randolph County criminal case it was turned
over to [him].”

(Docket Entry 63-2 at 1.)2

2

It does not appear that North Carolina law has established
a position of “Randolph County District Court Clerk.” See North
Carolina Admin. Office of the Cts., North Carolina Jud. Sys. 23
(continued...)
2

The instant Motion’s Certificate of Service mistakenly states
that service thereof occurred on Plaintiff because the CM/ECF
system “will send notification of such filing to” him.
Entry 63 at 3.)

(Docket

In fact (as reflected in the electronic receipt

created when Assistant Clerk Haynes filed the instant Motion),
because Plaintiff proceeds pro se and does not have permission to
act as an electronic-filer, the CM/ECF system did not forward
Assistant Clerk Haynes’s instant Motion to Plaintiff.
Entry 63, Notice of Elec. Filing.)

2

(See Docket

Plaintiff, however, received

(...continued)
(2008 ed.) (“The clerk of superior court is responsible for all
clerical and record-keeping functions of the superior court and the
district court . . . . Each clerk has a number of assistants and
deputies.”) (available at www.nccourts.org).
Accordingly, the
Office of the Randolph County Clerk of Superior Court arguably
could have returned the subpoena at issue as undeliverable.
Instead, said Office took the more responsible approach of
directing the subpoena at issue to an assistant clerk knowledgeable
about criminal cases in Randolph County, who then acted upon the
subpoena at issue by filing the instant Motion. At that point,
Plaintiff, rather than acknowledging that he erroneously addressed
the subpoena at issue to a non-existent position and considering
himself fortunate that no one tried to gain a tactical advantage
from his error, attempted to turn to his own tactical advantage the
responsible conduct of the Office of the Randolph County Clerk of
Superior Court.
(See Docket Entry 67 at 3 (“The subpoena was
issued to and served upon the Court Clerk. Therefore, only the
Court Clerk, not one of her assistants, had standing to object to
the subpoena. If Randolph County District Court does not have a
separate Court Clerk from the Randolph County Superior Court, then
the subpoena was properly served upon Pam Hill, the Randolph County
Superior Court Clerk, not her assistant.
As Ms. Hill did not
object to the subpoena, the [instant] Motion is moot and Ms. Hill
must be ordered to comply with the subpoena.”).) The Court rejects
(and indeed takes a very dim view of) this ill-conceived attempt at
gamesmanship by Plaintiff and will proceed to analyze the instant
Motion over his “lack-of-standing”/mootness objection(s). As the
Court has cautioned Plaintiff concerning another of his filings
(see Text Order dated Apr. 23, 2014), employing overly aggressive
litigation tactics ill-serves his cause.
3

actual notice of the instant Motion and the entire contents thereof
no later than April 23, 2014, because, on that date, the Court
directed “the Office of the Clerk [of this Court to] contact
Plaintiff at the telephone number he ha[d] provided . . . [to]
inquire if he ha[d] received [the instant Motion] and . . . [,] if
he ha[d] not received [it], [to] read it aloud.” (Text Order dated
Apr. 23, 2014; see also Telephone Notice dated Apr. 23, 2014
(reflecting that Deputy Clerk spoke with Plaintiff).) In addition,
when Plaintiff responded in opposition to the instant Motion, he
reported receiving from Assistant Clerk Haynes, on April 25, 2014,
a physical copy of the instant Motion, but did not identify the
manner of receipt.

(See Docket Entry 67 at 3.)
DISCUSSION

As an initial matter, Plaintiff contends the Court should deny
the instant Motion as untimely.

(See id. at 2-3.)

Specifically,

Plaintiff asserts as follows:
Rule 45 bars the Court from granting a Motion to Quash if
it was not served on the Party requesting the subpoena in
a timely manner. Rule 45 defines timely as it relates to
the filing of a Motion to Quash as having it served upon
the Party that requested it within 14 days from the date
of service. Therefore, the Court is barred from granting
a Motion to Quash unless it was served on the Party that
requested the subpoena within 14 days of the date of
service regardless of the objections raised in the Motion
or the counter-arguments of the Party that requested the
subpoena. In this case, the Motion was not served in a
timely manner as defined in Rule 45. [Plaintiff’s wife]
served the subpoena . . . on April 7, 2014. The [instant
Motion] was not filed with the Court until April 22, 2014
and was not served on [] Plaintiff until April 25, 2014.
Regardless of whether the Court uses the filing date of
the [instant Motion] or the service date of the [instant
Motion], the [instant] Motion is not timely.

4

(Id. at 2 (emphasis added).) In fact, however, the cited rule does
not operate as Plaintiff suggests.
The 14-day requirement referenced by Plaintiff appears in the
portion of said rule that addresses objections to subpoenas, one
mechanism for “[p]rotecting a [p]erson [s]ubject to a [s]ubpoena.”
Fed. R. Civ. P. 45(d)(2)(B) (“Objections.

A person commanded to

produce documents or tangible things or to permit inspection may
serve on the party or attorney designated in the subpoena a written
objection to inspecting, copying, testing, or sampling any or all
of the materials or to inspecting the premises –- or to producing
electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time
specified for compliance or 14 days after the subpoena is served.”
(emphasis added)).

Separately (but still within the paragraph

entitled “Protecting a Person Subject to a Subpoena; Enforcement”),
said rule also provides that:
On timely motion, the court for the district where
compliance is required must quash or modify a subpoena
that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical
limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other
protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A) (emphasis added).
This language thus mandates, inter alia, that “[a] court must
quash [or modify] a subpoena, ‘on timely motion,’ when the subpoena
5

. . . subjects a person to an undue burden.

Th[e] examination [of

the timeliness of a motion to quash] is slightly different than
asking whether [a subpoena recipient] objected to the subpoena in
a timely fashion.”

Bell Inc. v. GE Lighting, LLC, No. 6:14CV12,

2014 WL 1630754, at *9 (W.D. Va. Apr. 23, 2014) (unpublished)
(internal citation omitted) (emphasis in original). In particular,
“[u]nlike with objections, Rule 45 does not specify what ‘timely’
means for filing motions to quash subpoenas.”

Id.; see also WM

High Yield v. O’Hanlon, 460 F. Supp. 2d 891, 894 (S.D. Ind. 2006)
(observing that Federal Rule of Civil Procedure 45 “is silent as to
what constitutes a ‘timely’ motion” and “does not require a person
served with an objectionable subpoena to follow its directives
[regarding objections] in lieu of filing a motion to quash”).
Moreover, “[i]n the 1991 amendments to the Federal Rules, the
word ‘timely’ replaced the phrase, ‘promptly and in any event at or
before

the

time

therewith.’”

specified

in

the

subpoena

for

compliance

Nova Biomed. Corp. v. i-STAT Corp., 182 F.R.D. 419,

422 (S.D.N.Y. 1998).

“The 1991 amendment states that the new

revision is to ‘clarify and enlarge the protections afforded
persons who are required to assist the court by giving information
or evidence.’”

Id. (quoting Fed. R. Civ. P. 45, 1991 amend.,

advisory comm. nn.) (emphasis added); see also WM High Yield, 460
F. Supp. 2d at 894 (“[T]he 1991 amendments to Rule 45 . . . were
designed to afford greater protections to those served with a
subpoena

than

were

available

prior

to

amendment

.

.

.

.”).

“Because this language indicates that the revised rule takes no
6

rights away from the party subpoenaed, and in fact is to enlarge
that party’s protections, . . . the subpoenaed party has at least
as much time to move to quash as it previously did.

Thus, . . .

service [of a motion to quash] anytime before [a] subpoena[’s]
return date should be considered timely.” Nova Biomed., 182 F.R.D.
at 422; accord, e.g., Wells Fargo Bank, N.A. v. MPC Investors, LLC,
No. 09CV11249, 2010 WL 3259371, at *2 (E.D. Mich. Aug. 2, 2010)
(unpublished), recommendation adopted, 2010 WL 3259369 (E.D. Mich.
Aug. 18, 2010) (unpublished); Flagstar Bank, FSB v. Freestar Bank,
N.A., No. 09C1941, 2009 WL 2706965, at *3 (N.D. Ill. Aug. 25, 2009)
(unpublished); WM High Yield, 460 F. Supp. 2d at 894-95.

In this

case, as documented in the preceding section, Assistant Clerk
Haynes filed the instant Motion two weeks before the return date of
the subpoena at issue, making the instant Motion timely.3

3

Even if the 14-day period in Federal Rule of Civil Procedure
45(d)(2)(B) applied to the instant Motion, Plaintiff’s untimeliness
challenge likely would fail. First, if (as it appears) Plaintiff’s
wife served the subpoena at issue by placing it in the mail on
April 7, 2014, the recipient would have received an additional
three days to serve any objections. See Fed. R. Civ. P. 6(d).
Further, as documented in the Background section, Plaintiff
admitted receiving a copy of the instant Motion on April 25, 2014,
and, if (as seems plausible) counsel for Assistant Clerk Haynes
placed that copy in the mail on or before April 24, 2014, service
occurred within 17 days. See Fed. R. Civ. P. 5(b)(2)(C). In any
event, because (as shown in the preceding section) the Court gave
Plaintiff actual notice of the instant Motion and its contents on
April 23, 2014, within 17 days of service by mail of the subpoena
at issue, the Court likely would find good cause to excuse any noncompliance by Assistant Clerk Haynes with the deadline in Federal
Rule of Civil Procedure 45(d)(2)(B). See generally Ace Hardware
Corp. v. Celebration Ace Hardware, LLC, No. 09CV66, 2009 WL
3242561, at *2 (D. Del. Oct. 8, 2009) (unpublished) (“Courts have
exercised their discretion to consider motions to quash that were
not ‘timely’ filed within the meaning of Rule 45.”).
7

Turning to the merits of the instant Motion, as noted above,
the Court “must quash or modify a subpoena . . . that subjects a
person to an undue burden.” Fed. R. Civ. P. 45(d)(3)(A). “Whether
a subpoena imposes upon a witness an undue burden depends upon such
factors as relevance, the need of the party for the documents, the
breadth of the document request, the time period covered by it, the
particularity with which the documents are described and the burden
imposed.

Moreover, [the movant’s] status as a non-party entitles

him to consideration regarding expense and inconvenience.”

Nova

Biomed., 182 F.R.D. at 422-23 (internal citations and quotation
marks omitted). The subpoena at issue demands production of “[a]ll
documents, records, Court Files, Orders, transcripts, recordings,
communications, e-mails, voicemails, or text messages related to
Case 12CR53047 and/or a hearing scheduled and/or held in Randolph
County District Court in July 2012 in Case 12CR53047.”

(Docket

Entry 63-1 at 2.) According to the instant Motion, Assistant Clerk
Haynes’s “memorandum with attached notes from the District Court
file . . . proves that [P]laintiff has received everything that
exists in the file.”

(Docket Entry 63 at 2.)

As a result,

Assistant Clerk Haynes asks the Court to quash the subpoena at
issue on the grounds that it qualifies as “unreasonable and
oppressive,” as well as “an attempt to harass” (id.), i.e., that
the subpoena at issue imposes an undue burden.
In relevant part, the “memorandum” from Assistant Clerk Haynes
appended to (and referenced in) the instant Motion states:

8

[Plaintiff’s] case was not heard in any court in Randolph
County in July of 2012, the only action in his case was
the Grand Jury meeting on July 09, 2012 to consider
indictments. This office is not in possession of any
records or items of the Grand Jury except for the
indictments signed by the foreperson at the conclusion of
the Grand Jury meeting. [Plaintiff’s] case does include
an Indictment in file number 12CR53047 on the charge of
Larceny by Employee signed by the Grand Jury Foreperson
on 07/09/2012.
Recordings, transcripts, etc. for
anything concerning the Grand Jury meeting on 07/09/2012
do not exist in the file or any records held by the
Clerk’s Office.
[Plaintiff] was subsequently re-indicted by the Grand
Jury on 07/08/2013 on a superseding indictment on the
charges of 2 counts of Obtaining Property by False
Pretenses, also properly signed by the Grand Jury
Foreperson. Again, the Clerk’s Office does not have any
records of that meeting except the Indictment.
[Plaintiff] mentioned to Judge Stone in Superior Court on
09/09/2013 that he never received copies of his
Indictments. Judge Stone ordered the courtroom clerk to
provide certified copies of both indictments to
[Plaintiff], free of charge, and instructed [Plaintiff]
to go to the Clerk’s Office and get his copies.
The
courtroom clerk called me in my office and told me these
instructions.
I personally prepared the copies and
waited for [Plaintiff], who never came to the Clerk’s
Office.
By the close of business on 09/11/2013
[Plaintiff] still never appeared in the Clerk’s Office to
retrieve his copies, so I mailed the certified copies by
first class mail with the proper postage affixed to
[Plaintiff’s] address of 148 Renola Drive, Archdale, NC
27263. There is nothing further that anyone in this
office can provide [Plaintiff] concerning any time in
July, 2012 that he does not already possess.
(Docket Entry 63-2 at 1.) The “notes from the District Court file”
referenced in the instant Motion similarly indicate that, on
September 9, 2013, Assistant Clerk Haynes mailed certified copies
of

the

original

and

superseding

indictments

in

case

number

12CR53047 to Plaintiff’s address. (See id. at 2.) These materials
do not warrant quashing the subpoena at issue in its entirety.

9

First, the Court cannot conclude from the above-discussed
memorandum and related notes that Assistant Clerk Haynes previously
mailed Plaintiff a copy of “everything that exists in the file” for
case number 12CR53047.

Said materials indicate that Assistant

Clerk Haynes mailed Plaintiff certified copies of the original and
superseding indictments in said file, that said file does not
contain transcripts, recordings, or other records of the grand jury
proceedings that resulted in the return of those two indictments,
and that said file does not contain any items (other than the
original indictment) “concerning any time in July, 2012.”
1-2.)4

(Id. at

However, nothing in said materials establishes that the

court file for case number 12CR53047 consists only of the original
and superseding indictments, copies of which Assistant Clerk Haynes
has represented he previously mailed to Plaintiff.

(See id.)

Further, Plaintiff may contend that he never received the copies of
the two indictments Assistant Clerk Haynes has reported mailing to
Plaintiff’s address (see Docket Entry 67 at 5) and Plaintiff does
report a desire to obtain copies of court file material from an
identifiable custodian in the event he needs to present such
material as evidence at trial (see id. at 6).

Finally, the North

Carolina Administrative Office of the Courts recently acknowledged
that “individual criminal [court] records of the clerks of court
are public records and that the clerks are the custodians of those

4

The fact that Assistant Clerk Haynes emphasized the last
point may suggest a lack of recognition that the subpoena at issue
seeks documents related to case number 12CR53047 generally and not
just as to proceedings in July 2012. (See Docket Entry 63-1 at 2.)
10

records.” Lexisnexis Risk Data Mgmt. Inc. v. North Carolina Admin.
Office of the Courts, ___ N.C. App. ___, ___, 754 S.E.2d 223, 227
(2014). Given all of these considerations, the Court does not deem
it unduly burdensome to require the production of a copy of the
contents of the state court file for case number 12CR53047 (a
public record of recent vintage which one would expect to remain
readily-accessible to Assistant Clerk Haynes).
The subpoena at issue, however, demands more than just the
contents of the state court file for case number 12CR53047 (or
items one would expect to find in a court file, such as orders and
transcripts).

In

particular,

it

seeks

production

of

“[a]ll

documents, records, . . . communications, e-mails, voicemails, or
text messages related to Case 12CR53047 . . . .”
1 at 2 (emphasis added).)

(Docket Entry 63-

“[Document] requests must ‘place the

respondents on reasonable notice of what is called for and what is
not.’”

Preferred Carolinas Realty, Inc. v. American Home Realty

Network, Inc., No. 1:13CV181, 2014 WL 1320133, at *3 (M.D.N.C. Mar.
28, 2014) (unpublished) (quoting Parsons v. Jefferson-Pilot Corp.,
141 F.R.D. 408, 412 (M.D.N.C. 1992)).

Moreover, as another court

well-explained nearly two decades ago:
Requests which are worded too broadly or are too all
inclusive of a general topic function like a giant broom,
sweeping everything in their path, useful or not. They
require the respondent either to guess or move through
mental gymnastics which are unreasonably time-consuming
and burdensome to determine which of many pieces of paper
may conceivably contain some detail, either obvious or
hidden, within the scope of the request. The court does
not find that reasonable discovery contemplates that kind
of wasteful effort.

11

Audiotext Commc’ns Connections USA, Inc. v. U.S. Telecom, Inc., No.
CIV. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995)
(unpublished);

see

also

Nova

Biomed.,

182

F.R.D.

at

422-23

(“Whether a subpoena imposes upon a witness an undue burden depends
upon such factors as . . . the breadth of the document request
[and]

.

.

.

the

particularity

with

which

the

documents

are

described.” (internal quotation marks omitted)).
Further, and of direct application to the subpoena at issue,
“[a] request for all documents ‘relating to’ a subject is usually
subject to criticism as overbroad since . . . all documents
‘relate’ to all others in some remote fashion. Such a request thus
unfairly places the onus of non-production on the recipient of the
request and not where it belongs -- upon the person who drafted
such a sloppy request.”

Massachusetts v. United States Dep’t of

Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989); see
also In re NCAA Student-Athlete Name & Likeness Licensing Litig.,
Nos. C09-1967 CW (NC), MC 11-80300 CW (NC), MC 12-80020 CW (NC),
2012 WL 629225, at *5 (N.D. Cal. Feb. 27, 2012) (unpublished) (“The
Big Ten Conference objects to producing any documents that ‘relate
to’ the consent forms or to policies concerning the consent forms,
as searching for these documents would be unduly burdensome given
the current wording of the document requests. . . .

The portions

of the document requests that call for material other than the
exemplar consent forms themselves are overly broad . . . because
they contain no meaningful limitations to reduce the burden on the
nonparties of producing responsive documents.”), aff’d, 2013 WL
12

1285588 (N.D. Cal. Mar. 28, 2013) (unpublished).

In sum, the

subpoena at issue “use[s] the term[] ‘relate[d] to’ . . . in a way
that makes [it] overbroad, vague, and ambiguous.

Because [such]

terms are broad, they might well encompass irrelevant information.
Nor can [the respondent] be certain exactly what information the
[subpoena at issue] cover[s] and therefore what information is
responsive.”

Great Lakes Transp. Holding LLC v. Yellow Cab Serv.

Corp. of Fla., Inc., No. 10-80241-CIV, 2010 WL 5093746, at *6 (S.D.
Fla. Dec. 8, 2010) (unpublished).

As a result, the Court will

modify the subpoena at issue to require production only of the
contents of the state court file for case number 12CR53047.
CONCLUSION
Although aspects of the subpoena at issue sweep too broadly,
production of a single state court file would not unduly burden
Assistant Clerk Haynes.
IT

IS

THEREFORE

ORDERED

that

Assistant

Objection to Subpoena and Motion to Quash

Clerk

Haynes’s

(Docket Entry 63) is

GRANTED IN PART AND DENIED IN PART in that the subpoena at issue is
modified to require production only of a copy of the contents of
the state court file for case number 12CR53047.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 2, 2014

13