R.B. v. Hollibaugh et al

Filing 57

MEMORANDUM (Order to follow as separate docket entry) re 41 MOTION to Compel Production of Documents & Video Subpoenaed From SCI Smithfield filed by R.B., 37 MOTION to Compel Production of Subpoenaed Documents filed by R.B., 39 MOTION to Compel Production of Medical Records Subpoenaed from SCI Mahanoy filed by R.B. Signed by Magistrate Judge Karoline Mehalchick on 3/31/2017. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
R.B.,
Plaintiff,

CIVIL ACTION NO. 1:16-CV-01075

v.

( KANE, J.)
(MEHALCHICK, M.J.)

LISA HOLLIBAUGH, et al.,
Defendants.
MEMORANDUM
This is a civil rights action in which Plaintiff R.B., appearing through counsel, asserts
claims under 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act (“RA”), and state law against the Pennsylvania Department of Corrections
(“DOC”), several DOC employees at SCI-Smithfield and SCI-Waymart (collectively, the
“DOC Defendants”), and independent medical care providers at SCI-Smithfield. (Doc. 1). Now
pending before the Court are three motions to compel discovery against nonparties, filed by
Plaintiff in December of 2016. (Doc. 37; Doc. 39; Doc. 41). Plaintiff additionally requests
contempt sanctions in the form of costs and fees associated with the filing of these motions. In
the first motion, Plaintiff seeks the following materials from SCI-Waymart Superintendent Jack
Sommers: the duty rosters from the time of his alleged assault in September of 2014 at the
hands of several DOC Defendants; the incident report from that assault; and the DOC-issued
photo identification of Corrections Officer Toy. (Doc. 37, at 2). In the second motion, Plaintiff
seeks the DOC’s records of his medical and mental health from the records custodian at SCIMahanoy. (Doc. 39, at 1; Doc. 39-1, at 1). In the final motion, Plaintiff requests SCI-Smithfield
Superintendent Eric Tice to produce the duty rosters from the time of his alleged sexual assault

in June of 2014 and the reports produced as a result of the DOC’s investigation into the sexual
assault, including any surveillance video. 1 (Doc. 41, at 1; Doc. 41-1, at 1). Counsel for the DOC
assumed responsibility for the handling of the subpoenas and corresponding motions to compel
because all three subpoenas were served on DOC employees, and responded to the motions by
asserting several reasons why the DOC employees should not be ordered to produce the
materials requested by Plaintiff. (Doc. 43; Doc. 45; Doc. 46).The motions to compel have been
fully briefed and are now ripe for disposition. For the reasons that follow, the Court will grant
the motions in part and deny them in part.
I.

STANDARD OF REVIEW
The general scope of discovery is outlined by Federal Rule of Civil Procedure 26(b)(1):
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1).

Rule 26 establishes a liberal discovery policy. Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 300 F.R.D.
225, 226-27 (M.D. Pa. 2014); Great West Life Assurance Co. v. Levithan, 152 F.R.D. 494, 497
(E.D. Pa. 1994). Issues relating to the scope of discovery permitted under Rule 26 rest in the
sound discretion of the court. Wisniewski v. Johns–Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).

1

Plaintiff initially misidentified the Superintendent of SCI-Smithfield as Kevin
Kauffman, as opposed to Eric Tice, but later corrected that mistake. (Doc. 41-1, at 1; Doc. 49,
at 2 n.1, 9 n.3). The DOC did not object to the naming error, and thus the Court does not
consider it here. (Doc. 46; Doc. 49, at 9 n.3).

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Thus, a court's decisions regarding the conduct of discovery, and whether to compel disclosure
of certain information, will be disturbed only upon a showing of an abuse of discretion.
Marroquin–Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). “Although the scope of
relevance in discovery is far broader than that allowed for evidentiary purposes, it is not without
its limits.” Banks v. Beard, 2013 WL 3773837, at *2 (M.D. Pa. July 17, 2013) (citing Stabilus v.
Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 265 (E.D. Pa. 1992)). “Discovery
requests may be curtailed to protect a person from whom discovery is sought from ‘annoyance,
embarrassment, oppression, or undue burden or expense.’” In re Domestic Drywall Antitrust Litig.,
300 F.R.D. 234, 238 (E.D. Pa. 2014) (quoting Fed. R. Civ. P. 26(c)(1)).
Here, Plaintiff submits motions to compel discovery materials from nonparties pursuant
to Rule 45. Rule 45 sets forth the procedure that a party must follow to request the production
of “designated documents, electronically stored information, or tangible things in [the]
possession, custody, or control” of a nonparty. 2 Fed. R. Civ. P. 45(a)(1)(A)(iii). “After being
served with a subpoena duces tecum, a nonparty may object to producing any or all of the
requested information by serving a written objection on the party or person designated in the
subpoena

. . . within fourteen days after the subpoena is served . . . .” 3 In re Domestic Drywall

Antitrust Litig., 300 F.R.D. at 238 (citing Fed. R. Civ. P. 45(d)(2)(B)). As an alternative to

2

A party may also use a subpoena under Rule 45 to command a nonparty to attend a
deposition or permit the inspection of premises. Fed. R. Civ. P. 45(a)(1)(A)(iii). However,
Plaintiff’s requests in the motions now before the Court are limited to the production of
documents and other tangible items.
3

The objection need not be filed with the court. See In re Domestic Drywall Antitrust Litig.,
300 F.R.D. at 238.

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serving objections on the subpoenaing party, a nonparty may file a timely motion for a court to
quash the subpoena pursuant to Rule 45(d)(3).
“A non-party's failure to timely make objections to a Rule 45 subpoena duces tecum
generally requires the court to find that any objection . . . has been waived.” Wade v. City of
Fruitland, 287 F.R.D. 638, 641 (D. Idaho 2013) (citing In re DG Acquisition Corp., 151 F.3d 75,
81 (2d Cir. 1998); Wang v. Hsu, 919 F.2d 130, 131 (10th Cir. 1990)); see also Celanese Corp. v. E. I.
duPont de Nemours & Co., 58 F.R.D. 606, 609 (D. Del. 1973) (“[A] party who fails to abide by
the procedural rules governing litigation does so at his own risk and peril.”). However, a court
may consider untimely objections in unusual circumstances or upon a showing of good cause.
See Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996) (“In unusual
circumstances and for good cause, however, the failure to act timely will not bar consideration
of objections.”). Examples of situations where courts have found that unusual circumstances
warrant consideration of untimely objections include “where: (1) the subpoena is overbroad on
its face and exceeds the bounds of fair discovery; (2) the subpoenaed witness is a non-party
acting in good faith; and (3) counsel for the witness and counsel for the subpoenaing party were
in contact concerning the witness' compliance prior to the time the witness challenged the legal
basis for the subpoena.” Am. Elec. Power Co. v. United States, 191 F.R.D. 132, 136–37 (S.D. Ohio
1999).
II.

DISCUSSION
A. WAIVER OF OBJECTIONS
Here, none of the subpoenaed DOC officials filed a timely motion to quash.

Furthermore, Plaintiff alleges that the subpoenaed DOC officials each waived their right to
object to the subpoenas by failing to serve timely written objections. (Doc. 38, at 3; Doc. 40, at
3-4; Doc. 42, at 3-4). Indeed, the first subpoena was served on Superintendent Sommers on

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October 11, 2016, but counsel for the DOC did not object to the subpoena within fourteen days
or produce the requested materials within the thirty-day period specified in the subpoena. (Doc.
37-1, at 2; Doc. 38, at 3). Likewise, the second and third subpoenas were both served on
November 21, 2016, but again counsel for the DOC did not make any no objections or produce
any records within the respective allotted timeframes. (Doc. 39-1, at 2; Doc. 40, at 3-4; Doc. 411, at 2; Doc. 42, at 3-4). The Court therefore finds that the subpoenaed DOC officials failed to
comply with Rule 45’s procedural requirements.
Despite their failure to comply with Rule 45’s time requirements, the Court finds that
unusual circumstances warrant excusing the subpoenaed DOC officials’ untimeliness. Namely,
counsel for the DOC exchanged frequent correspondence with Plaintiff’s counsel from shortly
after the time the first subpoena was served in an effort to negotiate an agreement as to the
extent of the DOC officials’ compliance with the document requests. (Doc. 37-1, at 5-18; Doc.
40-1, at 5-54); see also Am. Elec. Power Co., 191 F.R.D. at 136–37 (noting that courts may find
unusual circumstances exist where counsel for the witness contacted counsel for the
subpoenaing party to discuss the witness’ compliance without formally submitting objections to
the subpoena). For example, counsel for the DOC provided Plaintiff’s counsel with
photographs of Corrections Officers Strasburger and Toy believing that they might be a
sufficient substitute for the documents requested in the first subpoena. (Doc. 37-1, at 8-18; Doc.
43, at 3-4). Additionally, the DOC officials aver that they are willing to produce the materials
requested in the second and third subpoenas, but they have been unable to agree with Plaintiff’s
counsel on a reasonable confidentiality stipulation. (Doc. 45, at 3-4; Doc. 46, at 3). In light of
these communications between counsel for the DOC and Plaintiff’s counsel, the Court finds
that the DOC officials have not waived their objections to Plaintiff’s subpoenas, and so the
Court will proceed to consider these objections on their merits. See, e.g., Celanese Corp. v. E. I.

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duPont de Nemours & Co., 58 F.R.D. 606, 610 (D. Del. 1973) (holding that nonparty’s decision to
negotiate response to a subpoena instead of serving timely objections was not the wisest course
of action but nonetheless should not bar consideration of the nonparty’s arguments); cf. Wade v.
City of Fruitland, 287 F.R.D. 638, 641 (D. Idaho 2013) (holding that court has discretion to
consider nonparty’s arguments under Rule 45 even where there is not good cause to excuse the
nonparty’s untimeliness).
B. OBJECTIONS ON THE MERITS
Counsel for the DOC presents three arguments as to why the subpoenaed DOC officials
should not be compelled to produce the materials requested in the three subpoenas: (1)
Plaintiff’s counsel agreed to postpone production of the documents named in the first subpoena
until Plaintiff had the opportunity to identify Corrections Officer “Stoney” from the two photos
the DOC provided, but then reneged on this agreement; (2) the DOC should not be compelled
to produce a duty roster and incident report until Plaintiff’s counsel agrees to sign a reasonable
confidentiality stipulation; and (3) the subpoenaed DOC officials have no obligation to produce
these documents until they are given a check for their witness fees and mileage. (Doc. 43, at 3-4;
Doc. 45, at 3-6; Doc. 46, at 3-5). The Court evaluates each of these arguments in turn.
1. Supposed agreement concerning the first subpoena
Counsel for the DOC first argues that it reached an agreement with Plaintiff’s counsel
that postponed Superintendent Sommers’ obligation to comply with the first subpoena. (Doc.
43, at 3-4). Specifically, the DOC provided Plaintiff’s counsel with photographs of Corrections
Officers Strasburger and Toy, in order to give Plaintiff the opportunity to determine which one
was Corrections Officer “Stoney.” (Doc. 37-1, at 8-11; Doc. 43, at 3). Plaintiff’s counsel
indicated to counsel for the DOC that “[t]here might be an easy solution,” and that “[i]f
[Plaintiff] agrees that Stra[sburger] is Stoney, and Toy was not involved, then [Plaintiff’s

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counsel] can cancel the request for documents.” (Doc. 37-1, at 8). Plaintiff ultimately picked out
one of the two corrections officers from the photos as “Stoney,” but Plaintiff’s counsel refuses to
divulge which photo her client chose. (Doc. 37-1, at 18; Doc. 43, at 3). Counsel for the DOC
now argues that it should not be compelled to comply with the subpoena until Plaintiff’s
counsel “uphold[s] her side of the agreement,” particularly because the stated purpose of this
discovery request—to determine whether Plaintiff needed to amend the caption of the
complaint to include Corrections Officer Toy as an additional Defendant—would be vitiated if
Corrections Officers “Stoney” and Strasburger were one and the same. (Doc. 43, at 3).
The Court is unpersuaded by counsel for the DOC’s argument that Superintendent
Sommers should not be required to produce the materials requested in the first subpoena until
Plaintiff’s counsel reveals what photo her client chose. Counsel for Plaintiff indicated that she
might be willing to cancel the document requests depending on the identification made by her
client, but no formal agreement to this effect was ever reached. Indeed, the email
communications between counsel for the DOC and Plaintiff’s counsel reveal that counsel for
the DOC explicitly asked whether Superintendent Sommers could disregard the rest of the
subpoena if it provided the two photos, to which Plaintiff’s counsel responded “no.” (Doc. 37-1,
at 9-10). Moreover, it remains unclear whether Plaintiff actually identified Strasburger as
“Stoney,” given that the two photos were unlabeled and Plaintiff’s counsel never revealed
which photo her client chose. Accordingly, the documents Plaintiff requested in the first
subpoena could yet prove to be important in determining whether Corrections Officer Toy was
involved in any of the alleged wrongdoing. For these reasons, Superintendent Sommers must
comply with the first subpoena.

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2. Confidentiality stipulation
Counsel for the DOC next argues that the DOC officials should not be required to
comply with the subpoenas because Plaintiff’s counsel refuses to sign a reasonable
confidentiality stipulation. (Doc. 43, at 4; Doc. 45, at 3-4; Doc. 46, at 3). Plaintiff’s counsel
contends that the confidentiality stipulation proposed by the DOC only pertains to Plaintiff’s
medical and mental health records, and thus has no application to Plaintiff’s first and third
subpoenas. (Doc. 44, at 6-7; Doc. 49, at 5-6). However, the plain language of the proposed
confidentiality stipulation indicates otherwise, as it contemplates review of “certain confidential
records in the possession of the D[OC], including inmate mental health records, counselor’s
notes, certain policies and/or procedures manuals, and investigative reports and summaries,
pursuant to discovery in the abovementioned litigation . . . .” (Doc 42-1, at 9). Furthermore, in
the email accompanying the proposed confidentiality stipulation, counsel for the DOC told
Plaintiff’s counsel that “[i]t is standard to require this Confidentiality Stipulation before
producing confidential Department procedures manuals and other documents.” (Doc 42-1, at
8). Accordingly, the Court finds that the proposed confidentiality stipulation was intended to
apply to the materials requested in all three subpoenas.
Plaintiff’s counsel also complains that it is unprecedented for the DOC to require her to
sign a confidentiality stipulation before producing subpoenaed materials. (Doc. 49, at 6 (noting
that Plaintiff’s counsel litigated other cases with the DOC where the production of similar
discovery materials was not preconditioned on signing a stipulation)). However, courts within
the Third Circuit routinely hold that institutional security and safety concerns permit
corrections officials to condition the production of documents on entry into a reasonable
confidentiality agreement. See, e.g., Johnson v. Wetzel, No. 1:16-CV-863, 2016 WL 4211719, at *1
(M.D. Pa. Aug. 10, 2016) (“[D]efendants' proposed confidentiality order strikes an appropriate

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balance between the need to produce uniquely probative discovery to counsel for Johnson while
mitigating institutional security and individual safety concerns attending broader
disclosure . . . .”); United States v. Con-Ui, No. 3:13-CR-123, 2016 WL 4140520, at *9 (M.D. Pa.
Aug. 4, 2016) (“The parties are to agree upon a confidentiality agreement/protective order
protecting the privacy of the BOP corrections officers and employees and present it to the court
for approval. Once approved, the evaluations are to be produced.”); Mincy v. Chmielewski, No.
CIVA 1:05CV0292, 2006 WL 3042968, at *2 (M.D. Pa. Oct. 25, 2006) (“Defendants will be
required to release the pertinent mental health records, provided the precondition of execution
of a confidentiality agreement is met.”). The Court finds that those same institutional security
and safety concerns are implicated here, and thus deems counsel for the DOC’s request that
Plaintiff’s counsel sign a reasonable confidentiality stipulation before receiving the requested
discovery materials to be appropriate. 4

4

Although Plaintiff argues that the “DOC cannot demand a confidentiality stipulation
from the [P]laintiff as a condition of giving him access to his medical records,” Plaintiff does
not cite any caselaw for the proposition that such a stipulation would violate Plaintiff’s rights
under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). (Doc. 48,
at 7). Moreover, courts within the Third Circuit routinely find that the DOC’s release of a
plaintiff’s own medical and mental health information may be conditioned on the execution of
a confidentiality agreement, given that the DOC has valid penological concerns that release of
these records to current or former inmates could expose treating staff to retaliation or otherwise
compromise the treatment process. See Victor v. Varano, No. 3:11-CV-891, 2012 WL 1514845, at
*8 (M.D. Pa. May 1, 2012); Williams v. Klem, No. CIV 3:07-1044, 2010 WL 3703801, at *2
(M.D. Pa. Sept. 15, 2010); Daniels v. Kelchner, No. CIV 1CV-05-1601, 2007 WL 2068631, at *4
(M.D. Pa. July 17, 2007); Mincy, 2006 WL 3042968, at *2. To the extent that Plaintiff’s counsel
objects to specific provisions in the authorization form and confidentiality stipulation proposed
by the DOC, however, she may certainly negotiate over the language employed. For instance,
Plaintiff’s counsel takes issue with the provision in the proposed authorization form that states
that Plaintiff must “explicitly waive any and all rights . . . to the confidential maintenance of
these records, including any such rights that exist under . . . federal statutory and/or
constitutional law . . . .” (Doc 42-1, at 2-3; Doc. 48, at 4). Counsel for Plaintiff’s objection to
this terminology may be well-founded, as the DOC’s proposed waiver appears to encompass
(footnote continued on next page)

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3. Witness fee and mileage
As a final argument, counsel for the DOC asserts that Plaintiff is not entitled to the
requested documents until each of the subpoenaed DOC officials are provided compensation
for their witness fees and mileage. (Doc. 43, at 4; Doc. 45, at 6; Doc. 46, at 4). As noted by
Plaintiff’s counsel, however, Rule 45 only provides for the payment of witness fees and mileage
“if the subpoena requires that person’s attendance . . . .” (Doc. 44, at 7 (quoting Fed. R. Civ. P.
45(b)(1))). None of the three subpoenas at issue here required DOC officials to attend and
testify at a deposition, as each subpoena was limited in scope to the production of documents
and other materials. (Doc. 37-1, at 1; Doc. 39-1, at 1; Doc. 41-1, at 1). Accordingly, counsel for
the DOC’s contention that Plaintiff failed to provide compensation for witness fees and mileage
is not a valid objection to the particular subpoenas served on the DOC officials. See generally
Jackson v. Brinker, No. IP 91-471-C, 1992 WL 404537, at *2 (S.D. Ind. Dec. 21, 1992) (“Because
a subpoena duces tecum does not command the attendance of the subpoenaed person, Rule
45(b)(1) does not require a tender of attendance or mileage fees in order to effect good service of
such a subpoena . . . .”).
C. SANCTIONS
In addition to seeking an order compelling the DOC to produce the materials requested
in the three subpoenas, Plaintiff also asks the Court to impose contempt sanctions on the
subpoenaed DOC officials in the form of compensation for the time and resources Plaintiff
expended in obtaining compliance with the subpoenas. (Doc. 38, at 6; Doc. 40, at 8-10; Doc.
42, at 8-9). At this time, the Court finds insufficient evidence to support contempt sanctions

the disclosure of Plaintiff’s medical and mental health records in any context and at any time,
without limiting the waiver of liability to this particular litigation.

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against the subpoenaed DOC officials. Rule 45(g) provides, in relevant part, that “[t]he
court . . . may hold in contempt a person who, having been served, fails without adequate excuse
to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g) (emphasis added). Thus,
sanctions are inappropriate where the subpoenaed nonparty has an adequate excuse for its
noncompliance. See Fed. R. Civ. P. 45(g). The comment to the 2013 Amendment to Rule 45
goes on to state that “[i]n civil litigation, it would be rare for a court to use contempt sanctions
without first ordering compliance with a subpoena, and the order might not require all the
compliance sought by the subpoena.” Fed. R. Civ. P. 45 Advisory Committee Note (2013).
Here, the Court finds that the DOC’s reasonable desire to execute a confidentiality stipulation
prior to turning over the requested materials based on security concerns—although not vitiating
the DOC’s need to comply with the subpoenas altogether—constitutes an adequate excuse for
its lack of timely compliance. Accordingly, this Court will refrain from granting sanctions until
the subpoenaed DOC officials have the opportunity to produce the requested materials after
negotiating a reasonable confidentiality stipulation. The Court therefore denies Plaintiff’s
motions for contempt sanctions without prejudice.
III.

CONCLUSION
For the foregoing reasons, the Court will GRANT IN PART and DENY IN PART

Plaintiff’s motions to compel production of subpoenaed documents and for contempt sanctions.
(Doc. 37; Doc. 39; Doc. 41).
An appropriate Order follows.

s/ Karoline Mehalchick

Dated: March 31, 2017

KAROLINE MEHALCHICK
United States Magistrate Judge

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