Richardson v. Huber Heights City Schools Board of Education et al

Filing 138

ORDER granting 130 Defendants' Joint Motion to Enforce Subpoena to Aaron Leist; denying 130 Defendants' Alternative Motion to Exclude Aaron Leist as a Trial Witness for Plaintiff; Order requiring Defendants to take further steps; Order requiring the United States Marshal to serve Aaron Leist - within a reasonable time before the deposition date set forth in the subpoena - with a copy of the subpoena and a copy of this Decision and Order; and Placing Aaron Leist on Notice of Possible Sanctions. Signed by Chief Magistrate Judge Sharon L. Ovington on 2-12-15. (mcm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DONALD RICHARDSON, et al.,
Plaintiffs,

:
:
:

v.
BOARD OF EDUCATION OF
HUBER HEIGHTS CITY
SCHOOLS, et al.,
Defendants.

Case No. 3:12cv00342
District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:
:

DECISION AND ORDER

This matter is before the Court upon Defendants’ Joint Motion to Enforce
Subpoena to Aaron Leist and Alternative Motion to Exclude Aaron Leist as a Trial
Witness for Plaintiff (Doc. #130), Plaintiff’s Response (Doc. #132), Defendant Board of
Education of Huber Heights City Schools’ Reply (Doc. #135), and the record as a whole.
Each party to this case has identified Aaron Leist as a lay witness regarding his
personal knowledge of the incident or circumstances surrounding the incident that is the
subject of the Complaint. E.g., Doc. #67, PageID at 378, ¶17. Aaron Leist has reached
the age of majority. Defendant Board of Education issued a subpoena for Aaron Leist on
December 22, 2014, requiring him to attend his deposition on January 12, 2015. (Doc.

#129, Exhibit A). Service of subpoena was accepted by “a man stating he was Aaron
Leist’s father, Scott Leist ....” (Doc. #130, PageID 1352). Scott Leist “stated he would
get the subpoena to Aaron Leist.” Id. Before Aaron Leist’s deposition was scheduled to
occur, someone cashed the $56.00 check for witness and mileage fees that Defendant
Board of Education’s counsel had provided. (Doc. #129, PageID 1348-49). Despite this,
Aaron Leist failed to appear on January 12, 2015, and “[n]othing has been heard from Mr.
Leist ....” (Doc. #130, PageID 1352). Defendants stress, “Plaintiff has failed to provide
Defendants with contact information for Mr. Leist ....” Id. All parties have identified
Aaron Leist as a lay witness.
Because Aaron Leist witnessed the incident that is the main subject matter of this
case or has personal knowledge of the circumstances surrounding that incident, the
subpoena for his deposition seeks information that is relevant to Plaintiff’s claims or is
reasonably calculated to lead to the discovery of admissible evidence. See Fed. R. Civ. P.
26(b)(2). Consequently, Defendants (and for that matter Plaintiff) had sufficient reason
to depose him. See also CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002)
(“A party has a general right to compel any person to appear at a deposition, through
issuance of a subpoena if necessary.”).
It appears, moreover, that Defendant Board of Education’s counsel attempted to
properly issue the subpoena and, in fact, paid the required witness fees and mileage. See
2

Fed. R. Civ. P. 30(a), 45(b)(1). If so, Aaron Leist’s failure to appear at his deposition on
January 12, 2015 as mandated by the subpoena is sanctionable conduct that may result in
an Order holding him in civil contempt of Court. Fed. R. Civ. P. 30(d)(2), 45(g). There
is some doubt about this because a possibility remains that Aaron Leist’s father did not
inform Aaron Leist about the subpoena. The question thus remains: Did Aaron Leist
actually receive the subpoena? See Fed. R. Civ. P. 45(b)(1) (requiring delivery of a copy
of the subpoena “to the named person ....”).1 In addition, there is no present indication
that Defendants served, or reasonably attempted to serve, Aaron Leist with a copy of their
Joint Motion to Enforce Subpoena.
Yet, to be clear: Aaron Leist’s failure to appear at his January 12, 2015 deposition
as mandated by the subpoena subjects him to the possible, if not likely, outcome that the
Court will find him in civil contempt. Such a finding could result in a Court Order
requiring him to re-pay Defendant Board of Education’s counsel the $56.00 in witness
and mileage fees and to pay the amount of Defendants’ reasonable attorney fees and
expenses – a potentially very expensive sanction. See Fed. R. Civ. P. 30(d)(2) and Fed.
R. Civ. P. 45(g).
Assuming Aaron Leist attends his upcoming deposition – that must be re-

1

Other reasonable possibilities exist. For example, it is equally possible that Aaron Leist’s
father gave Aaron Leist the subpoena, which he then ignored.

3

scheduled to occur on or before February 23, 2015 – such future compliance with this
Order may constitute a valid reason to reduce or eliminate the amount of money he must
pay as a sanction for his civil contempt.
Accordingly, Defendants’ Joint Motion to Enforce Subpoena is well taken.
IT IS THEREFORE ORDERED THAT:
1.

Defendants’ Joint Motion to Enforce Subpoena to Aaron Leist (Doc. #130)
is GRANTED;

2.

Defendants shall prepare another subpoena to Aaron Leist and submit it to
the Office of the Clerk of Court; Defendants do not need to again pay
Aaron Leist mileage and witness fees; the subpoena shall mandate Aaron
Leist to attend his deposition on a specific date and time on or before
February 23, 2015; and the Clerk of Court shall forward a copy of the
subpoena to the United States Marshals Service;

3.

The United States Marshal shall forthwith serve Aaron Leist – within a
reasonable time before the deposition date set forth in the subpoena – with a
copy of the subpoena and a copy of this Decision and Order;

4.

Aaron Leist is ORDERED to attend his deposition at the date and time set
forth in the subpoena, and Aaron Leist is placed on NOTICE that his
failure to attend his deposition as required by the subpoena will result in an
ORDER finding him in civil contempt of Court and imposing money
sanctions upon him; and

5.

Defendants’ Alternative Motion to Exclude Aaron Leist as a Trial Witness
for Plaintiff (Doc. #130) is DENIED as moot.

February 12, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

4