Wetzel

Filing 54

ORDER by Magistrate Judge Charles S. Miller, Jr. granting 53 Motion (Amended Request for Subpoenas) by Joel H. Wetzel. (BG) Distributed to Joel Wetzel on 11/5/2012 with 6 blank subpoena forms. (rs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Joel H. Wetzel,
Plaintiff,
vs.
Daniel Brown, Brian Koskovich,
Jeremy Moser, and Corey Lee,
Defendant.

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ORDER GRANTING PLAINTIFF’S
AMENDED REQUEST FOR SUBPOENAS

Case No. 1:09-cv-053

On October 19, 2012, plaintiff contacted the Clerk to request, inter alia, six blank subpoenas
“to gather evidence.” The court denied plaintiff’s request without prejudice. In so doing, it
expressed the following concerns:
The first is the very real potential for prisoners abusing the court’s subpoena power.
The second is one of practicality and whether the subpoenas are a viable tool for
evidence collection for prisoners, given their incarcerated status. Consequently,
before the court provides plaintiff with any subpoenas, the court will require some
showing from plaintiff regarding the following points, as relevant: (1) the name and
address of the person or entity to whom each subpoena will be directed; (2) the
purpose for each subpoena; (3) plaintiff’s wherewithal to conduct any proceeding for
which the subpoenas might be issued given his incarcerated status; (4) plaintiff’s
ability to tender any witness and other fees that may be required for the subpoenas;
and (5) if other means of discovery are available, the other means are not practical
or are unlikely to result in the production of the needed information.
(Docket No. 52). It also reminded plaintiff that he had other means at his disposal for obtaining
discovery.
On October 29, 2012, plaintiff filed an “Amended Request for Subpoenas.” He renews his
request for six subpoenas. To assuage the court’s concerns, he agrees to provide the names and
addresses of those he wishes to subpoena, identify the purpose for each subpoena, and pay any fees

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that may be imposed. He further states that he is seeking medical records “to establish the amount
of injuries and the extent in severity, and the treatment ongoing to determine the liability and
damages.” (Docket No. 53). Finally, he advises that he has retained an assistant to gather evidence
and conduct interviews.
The concerns previously expressed by the court remain because it is still unclear what
plaintiff intends to use the subpoenas for. For example, he state he has retained an assistant to gather
evidence and conduct interviews. There is nothing that prohibits plaintiff’s assistant from doing this
now to the extent that third parties are voluntarily willing to cooperate in providing the information
or being interviewed.

However, there is nothing in the Federal Rules of Civil Procedure that

authorizes use of a subpoena to compel persons to submit to an interview if that is part of the reason
that plaintiff wants subpoenas. Rather, if the goal is to obtain the testimony of a third party, the
subpoena must be for attendance at a deposition or a court proceeding under Fed. R. Civ. P. 45. And
for a deposition, certain formalities must be adhered to as set forth in Fed. R. Civ. P. 30.
That being said, an appropriate use of a subpoena would be to obtain records, particularly
when the person or entity from whom the records are sought is not a party. And here, plaintiff states
that one of the reasons that he wants the subpoenas is to obtain medical records. Consequently, the
court will order the clerk to provide blank subpoena forms for this purpose. If plaintiff wants
subpoenas for other purposes, he will have to provide the information required in the court’s earlier
order demonstrating that he has the capacity to the subpoenas for an authorized purpose.
Based on the foregoing, it is hereby ORDERED that Plaintiff’s “Amended Request for
Subpoenas” (Docket No. 53) is GRANTED, as follows: The Clerk shall forward to plaintiff six
blank subpoena forms for production of documents. Plaintiff can then complete the forms by

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inserting the information required. Before plaintiff can use the forms, he must submit them to the
Clerk for signing. If the forms are properly completed and otherwise appear to be in order, the Clerk
may then sign the subpoena forms return them to plaintiff who shall be responsible for the proper
service of the subpoenas.
Dated this 5th day of November, 2012.

/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr.
United States Magistrate Judge

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