Manning v. Herman et al
MEMORANDUM (Order to follow as separate docket entry) re 190 MOTION for Protective Order filed by Mills, Jr., Staley, Michael Morrow. Signed by Magistrate Judge Karoline Mehalchick on 3/10/2017. (cw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EUGENE DOUGLAS MANNING,
CIVIL ACTION NO. 1:13-CV-01426
DOUGLAS HERMAN, et al.,
Before the Court is a motion for a protective order filed by Defendants Morrow, Mills,
and Staley. (Doc. 190). The Defendants previously moved for entry of a protective order in
response to “voluminous” discovery requests received from pro se Plaintiff Eugene Douglas
Manning, which was granted on October 17, 2016. (Doc. 167; Doc. 173). In response, Manning
requested nine court-issued subpoenas to obtain medical records from third-party medical
providers, clarification on the admissibility of already obtained medical records, and six
subpoenas intended for discovery to be served upon the Defendants and related third parties.
(Doc. 168). The Court granted the subpoenas for third party medical providers but denied
issuance of subpoenas intended for the Defendants and Franklin County prison. (Doc. 174;
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense . . . . Information within this scope of discovery need not be admissible
in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1). “Rule 26(c) authorizes a court to issue
a protective order where justice so requires and upon good cause shown. The party seeking a
protective order bears the burden of demonstrating the ‘good cause’ required to support such an
order.” Trans Pacific Ins. Co. v. Trans-Pacific Ins. Co., 136 F.R.D. 385, 391 (E.D. Pa. 1991).
“Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do
not satisfy the Rule 26(c) test.” Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
The decision of whether or not to grant a protective order pursuant to Rule 26(c) rests in the
sound discretion of the trial court. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.
On November 9, 2016, Manning moved to serve written discovery on the Defendants in
order to obtain the legal names of the remaining Defendants. (Doc. 180). The Court granted his
motion and ordered the Defendants to provide him with their legal names. (Doc. 187). In their
instant motion, the Defendants assert that following compliance with this Order, Manning
resubmitted discovery requests previously answered in a manner Manning deemed inadequate.
(Doc. 191). Additionally, they stated that Manning served a subpoena on the Franklin County
jail, seeking information already provided and various other requests. (Doc. 191-12).
The Court’s Order granting Manning’s motion to serve written discovery related ONLY
to the legal names of the Defendants and did NOT authorize the resubmission of previously
offered discovery requests. As stated in the October 17, 2016 entry of a protective order,
Manning must seek leave of court before service of discovery on the Defendants. (Doc. 173).
While Manning did file a motion to serve written discovery, the Court’s Order granting
Manning’s motion was not an open invitation to refile old discovery requests, but provided only
for submission of discovery tailored to obtaining the names of the Defendants which was the
entirety of Manning’s supporting argument.
In the October 21, 2016 Memorandum explaining the denial of Manning’s motion for
subpoenas, the Court explained that “to the extent [Manning] believes Defendants provided
evasive discovery answers, he must in good faith attempt to resolve these issues without Court
intervention, and, only upon a showing thereof, may file a motion to compel.” (Doc. 174, a 56). This remains the case. The Court has no reason to doubt Manning’s efforts to resolve the
discovery dispute prior to seeking Court intervention. However, at no point has he filed a
motion to compel or a motion with similar effect. The prior orders of the Court did not
authorize resending hundreds of pages of discovery requests already answered, even if Manning
is dissatisfied with the response provided, as a means of obtaining information he seeks.
The specific instances of evasive answers identified by Manning related exclusively to
the legal names of the Defendants. (Doc. 180, at 13-14, 16). Nowhere in Manning’s motion to
serve written discovery is a statement notifying the Court of his desire to file a request for
admissions, request for production of documents, or interrogatories deviating from that specific
deficiency. Accordingly, the Court finds the service of further written discovery outside of the
scope provided to be improper, and a protective order warranted. Thus, the Defendants’ motion
is GRANTED. The Defendants are not obligated to respond to the discovery requests
submitted outside the scope of this Court’s prior Order on the matter. To the extent Manning
seeks to serve additional discovery, he MUST seek Court leave, which includes providing the
discovery request to be sent for review so as to avoid further confusion, litigation, and burden
on both parties.
Defendants also request that this Court declare future subpoenas issued to the
Defendants, the Franklin County jail and/or Franklin County and/or its employees, agents or
servants, “invalid” and without requiring response. (Doc. 195, at 7). This comes as a result of a
draft subpoena provided by Manning (Doc. 190-12), which upon briefing has been identified as
unserved. (Doc. 195, at 7). Originally, the Defendants requested that the Court quash
Manning’s subpoena for “blatant disregard of this Court’s Order.” (Doc. 190, at 5-6). While a
moot point at this juncture, in order to reduce future litigation, the Court reiterates the
requirements of Rule 45.
Under Rule 45 of the Federal Rules of Civil Procedure, “the court for the district where
compliance [with a subpoena] is required must quash or modify a subpoena” upon presentation
of any one of four grounds. FED. R. CIV. P. 45(d)(3). Factual assertions raised in briefings
identify two of these as relevant. The court must quash or modify a subpoena that requires
disclosure of “privileged or other protected matter, if no exception or waiver applies; or,
subjects a person to undue burden.” FED. R. CIV. P. 45(d)(3)(iii)-(iv). However, it is the nonparty recipient that is entitled to raise these objections, not the Defendants. See Behne v. Halstead,
No. 1:13-CV-0056, 2014 WL 4672486, at *3 (M.D. Pa. Sep. 18, 2014) (citing Thomas v. Marina
Assocs., 202 F.R.D. 433, 434-35 (E.D. Pa. 2001)). As noted by the Defendants in their brief in
support, should Manning issue a subpoena like the one in question, notice must be provided to
the opposing party prior to service of the subpoena in order to provide notice and time to object.
See Fed. R. Civ. P. 45(a)(4); see generally CedarCrestone, Inc., v. Affiliated Computer Serv’s., LLC.,
No. 1:14-MC-0298, 2014 WL 3055355, at *6 (M.D. Pa. July 3, 2014). Because of the
hypothetical nature of the Defendants’ concerns, the Court declines to declare all subpoenas
invalid. All parties are to keep in mind the preceding procedural restrictions regarding issuance
Lastly, the Defendants assert Manning has attempted to use discovery to obtain copies
of the deposition transcripts at no cost. (Doc. 190, at 5). Manning denies this attempt to
circumvent the rules of discovery, and states that he has offered to pay both the court reporter
and Defendants the costs associated with providing the transcripts. (Doc. 194, at 9-10).
Manning has helpfully attached letters he sent to both regarding the transcripts. (Doc. 194, at
66-72). Manning plainly has offered to pay the court reporter, however a review of his letter to
the Defendants does not contain similar language. The Defendants are correct that the rules of
discovery should not be used to shift the costs of production to one party. The Court at this time
advises that the Defendants are not obligated to provide the deposition transcripts at no cost.
Given Manning’s indicated willingness to pay for the service, the parties are encouraged to
attempt amicable resolution, should Manning’s attempts to pay the court reporter for their
services fail to rectify the issue.
An appropriate Order follows.
s/ Karoline Mehalchick
Dated: March 10, 2017
United States Magistrate Judge
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