Behne et al v. Halstead et al

Filing 114

MEMORANDUM re MOTION to Quash Defendants' Subpoena 106 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 09/18/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD G. BEHNE, JR. and
BARRY KELLER,
Plaintiffs
v.
TAMI HALSTEAD; LORRIE
NULTON; JASON EHRHART;
JAMES PRESCOTT; THOMAS
FITZPATRICK; and the
BOROUGH OF NEWPORT,
Defendants

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CIVIL No. 1:13-CV-0056

Judge Sylvia H. Rambo

MEMORANDUM
Presently before the court is Plaintiffs’ motion to quash a subpoena
(Doc. 106) that had been noticed by Defendants and directed to Fort Indiantown
Gap, a former employer of Plaintiff Behne. Defendants sought the subpoena in
connection with a civil jury trial in the captioned action currently scheduled to
commence on October 15, 2014. For the reasons that follow, the court will quash the
subpoena on the grounds that it violates the court’s March 13, 2013 case
management order. (See Doc. 9.)
I.

Procedural Background
On March 13, 2013, the court entered a case management order (Doc.

9), wherein it set forth a fact discovery deadline of July 1, 2013.1 On May 12, 2014,
the court set trial for July 22, 2014, at 8:30 a.m. in Courtroom Number 3. (Doc. 81.)
On September 17, 2013, the court stayed the remaining case management deadlines
pending disposition of two pending motions for summary judgment. (Doc. 65.) However, the order had
no impact on the discovery deadline as it had already passed.
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On July 10, 2014, Defendants served a subpoena upon the custodian of
records for Fort Indiantown Gap, a non-party, to appear and testify at the trial in this
civil matter on July 22, 2014, and to produce at that time any employment records
concerning the employment of Plaintiff Behne. (Doc. 107-2.) Plaintiffs’ counsel
was simultaneously served with a copy of the subpoena. (See Doc. 107, p. 1 of 3.)
On July 18, 2014, the trial was rescheduled for October 15, 2014. (Doc. 103.) On
August 8, 2014, Fort Indiantown Gap advised Plaintiff Behne that it was going to
forward copies of his personnel file to defense counsel unless he took immediate
action to quash the subpoena. (Doc. 107, p. 2 of 3.)
On August 11, 2014, Plaintiffs filed a motion to quash the subpoena
(Doc. 106) on the ground that it was not issued in accordance with the procedure
governing this litigation. On August 22, 2014, Plaintiffs filed a brief in support of
their motion (Doc. 107), arguing that the subpoena does not provide for the records
to be sent to defense counsel’s office, that the continuance of trial rendered the
subpoena moot, and that the records are not relevant to Plaintiff Behne’s claims.2
(Id. at p. 2 of 3.) Plaintiffs’ motion also indicated that Plaintiffs object to the
subpoena on the basis that the discovery deadlines in this case have closed. (Id.)
In their memorandum in support of the motion to quash the subpoena, Plaintiffs state that
they advised Defendants that they are not seeking lost wages or travel expenses “after [Plaintiff
Behne’s] last day of work at Fort Indiantown Gap. Since his employment ended on June 16, 2014,
whatever happened beyond that date is not relevant to his damage claims.” (Doc. 107, p. 2 of 3.)
However, in an email dated July 16, 2014, and attached as an exhibit to Plaintiffs’ response to
Defendants’ opposition (Doc. 113-1, p. 1 of 3), Plaintiffs’ counsel states that “This will also confirm that
we will not be seeking a wage claim for Officer Behne beyond the date that he returned to employment”
(id.). Plaintiffs state the same in their responsive brief. (See Doc. 113, p. 2 of 2 (“Plaintiff has
previously advised that he was not seeking any wage claim beyond the date when he returned to
employment at Fort Indiantown Gap.”.) Thus, the court will assume that Plaintiff’s statements to the
contrary in his memorandum in support of the motion to quash (Doc. 107, p. 2 of 3) were written in
error and will disregard them. While the issue is not relevant to resolution of the instant motion, the
court recognizes that the issue may be significant in the future.
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Defendants opposed the motion to quash on September 2, 2014 (Doc. 112),
contending that: (1) Plaintiffs’ motion to quash was untimely filed; (2) that Plaintiffs
lacked standing to move to quash the subpoena; (3) the records are relevant to
Plaintiff Behne’s damages and the Borough of Newport’s defense in this case; and,
(4) although the subpoena sought information that had not been disclosed during
discovery, the information related to events which occurred after the close of
discovery.
II.

Legal Standard
Federal Rule of Civil Procedure 45(d)(3)(A) sets forth the

circumstances under which the court must quash a subpoena. In relevant part, Rule
45 provides that, on timely motion, the issuing court must quash a subpoena if it
subjects a person to undue burden, or if it requires disclosure of protected matter.
Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). “The party seeking to quash the subpoena bears
the burden of demonstrating that the requirements of [Rule 45] are satisfied, and that
burden is a heavy one. Malibu Media, LLC v. John Does 1-18, Civ. No. 12-7789,
2014 WL 229295, *6 (D.N.J. Jan. 21, 2014).
“A Rule 45 subpoena served in conjunction with discovery must fall
within the proper scope of discovery under [Federal Rule of Civil Procedure]
26(b)(1).” Schmulovich v. 1161 RT. 9, LLC, Civ. No. 07-597, 2007 WL 2362598, *2
(D.N.J. Aug. 15, 2007) (emphasis added). If a subpoena falls outside the scope of
permissible discovery, the court may quash or modify it upon motion by the party
served. Id. Significantly, a subpoena is subject to the same scheduling order
deadlines as other forms of discovery. Joseph v. Linehaul Logistics, Inc., Civ. No.
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11-114-M-JCL, 2012 WL 3779202, *4 (citing Marvin Lumbar & Cedar Co. v. PPG
Industries, Inc., 177 F.R.D. 443, 444 (D. Minn. 1997)).
III.

Discussion
A.

Timeliness

Under Rule 45, “[e]very subpoena must: . . . command each person to
whom it is directed to do the following at a specified time and place: attend and
testify; produce designated documents, electronically stored information, or tangible
things in that person’s possession, custody, or control; or permit the inspection of
premises . . . .” Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). A motion to
quash a subpoena must be filed within the specified compliance period or within
fourteen days after the subpoena is served, whichever is earlier. Fed. R. Civ. P.
45(d)(B).
Here, the subpoena was issued on July 10, 2014, and directed the
custodian of records of Fort Indiantown Gap to appear at the courthouse on July 22,
2014, at 8:30 a.m., and to produce at that time Plaintiff Behne’s employment records.
On July 18, 2014, the trial was continued to October 15, 2014. On August 11, 2014,
Plaintiffs filed the instant motion to quash.
In their motion, Plaintiffs argue that the subpoena was discharged by the
continuance of the trial date. Defendants contend, on the other hand, that the
subpoena is still valid for purposes of obtaining the employment records, a fair
reading of which demonstrates their position that the trial continuance effectively
postponed the July 22, 2014 return date set forth in the subpoena to October 15,
2014, and that, because Plaintiffs failed to object within fourteen days of the issuance
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of the subpoena, the motion to quash is untimely. In response, Plaintiffs argue that,
because they were under the assumption that the subpoena was moot, they had no
reason to object to its issuance until they were advised by Fort Indiantown Gap on
August 8, 2014, that it intended to forward the employment records to defense
counsel. Thus, this dispute raises the preliminary issue of whether a continuance of
trial extends the return date of a trial subpoena.
The court need not reach this issue, however, because it determines that
the subject of discovery, i.e., Plaintiff Behne’s personal employment records, which
Plaintiff Behne has an interest in, see infra part III B, is being requested to be
produced ahead of trial and outside the time period for discovery. Such a request is
improper and, for the reasons explained below, in violation of the court’s scheduling
order, namely, the discovery deadline.
B.

Standing

Generally, a motion to quash or modify a subpoena directed to a nonparty must be brought by the non-party itself. See Thomas v. Marina Assocs., 202
F.R.D. 433, 434-35 (E.D. Pa. 2001). However, “[a] party has standing to bring a
motion to quash or modify a subpoena upon a non-party when the party claims a
personal privilege in the production sought.” Schmulovich, 2007 WL 2362598 at *2.
For example, a party has sufficient standing to challenge a subpoena issued to a bank
that seeks disclosure of that party’s financial records. Id. This court is satisfied that
Plaintiffs have standing to bring this motion because the subpoena seeks disclosure
of Plaintiff Behne’s personal employment records.

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C.

Merits

Despite the parties’ various contentions regarding the relevancy of the
subpoena, the ultimate issue in the matter sub judice arises from the requirements of
scheduling orders and adherence to their deadlines. Rule 16 of the Federal Rules of
Civil Procedure requires a court to enter pretrial orders setting deadlines for, among
other things, the completion of discovery. Fed. R. Civ. P. 16(b). A court may only
modify a scheduling order upon a showing of good cause. Id. at 16(b)(4). This
authority extends to requests to reopen discovery. In re Chocolate Confectionary
Antitrust Litig., MDL 1935, Civ. No. 1:08-MDL-1935, 2013 WL 3873225, *2 (M.D.
Pa. July 25, 2013).
The March 13, 2013 case management order in this case established a
discovery deadline of August 1, 2013. (Doc. 9) Obviously, the subpoena
Defendants served upon Fort Indiantown Gap on July 10, 2014 falls beyond this
deadline. To argue that the court should allow the subpoena to be converted into a
pretrial discovery mechanism to obtain documents rather than a trial subpoena would
be effectively ignoring the purposes of the scheduling order which is “at the heart of
case management.” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1996).
The careful scheme of reasonable framing and enforcement of scheduling orders
would be nullified if a party could simply propound discovery on the eve of trial –
long after the discovery deadline has expired – without any showing of good cause.
Accordingly, because Defendants did not file a motion to reopen
discovery pursuant to Federal Rule of Procedure 16(b) to seek the additional
discovery from Fort Indiantown Gap, the motion to quash the subpoena will be

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granted to the extent it seeks to prevent Fort Indiantown Gap from producing the
records ahead of trial.
IV.

Conclusion
For the reasons set forth above, the court finds that the subpoena

violates the court’s March 13, 2013 case management order, and will therefore grant
Plaintiffs’ motion to quash the subpoena to the extent it seeks to prevent Fort
Indiantown Gap from producing the records ahead of trial.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: September 18, 2014.

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