Morris v. Bland et al

Filing 73

ORDER denying #71 Motion to Quash. Signed by Magistrate Judge Kaymani D West on 8/6/2013.(mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
NANCY MORRIS, as personal representative
of the estate of DAVID ALLAN WOODS,

Civil Action No.: 5:12-3177-RMG-KDW

Plaintiff,
ORDER

v.
THE HOPE CLINIC, LLC, officially and
individually; TEMISAN ETIKERENTSE,
M.D., officially and individually; SUE
BRABHAM, R.N., officially and
individually; Berkeley County Sheriff H.
WAYNE DEWITT, officially and
individually; ANDREW J. BLAND, PFC,
officially and individually; RICHARD T.
BURKHOLDER, SGT, officially and
individually; JAMES M. BROPHY, PFC,
officially and individually; LEEMON E.
CARNER, PFC, officially and individually;
PATRICIA D. COLLINS, SGT, officially and
individually; CHARLES A DESANTO, CPL,
officially and individually, KENDRA B.
HABERSHAM, Staff SGT, officially and
individually, ASHLEY A. HARBER, PFC,
officially and individually, PRISCILLA
SCHEETZ, SGT, officially and individually;
JERRY SPEISSEGGER, JR, PFC, officially
and individually; PFC DAAF, officially and
individually; JOHN DOE(S), officially and
individually; CLIFFORD L. MCELVOGUE,
Director, officially and individually,
Defendants.

This matter is before the court on the Motion to Quash filed by Defendants Hope Clinic,
LLC; Temisan Etikerentse, M.D. (“Dr. Etikerentse”), and Sue Brabham, R.N., officially and
individually, (collectively, “Hope Defendants”), ECF No. 71. The Motion to Quash concerns a

subpoena served on Defendant Dr. Etikerentse regarding his deposition noticed for August 9,
2013.1 Plaintiff filed opposition to the Motion, ECF No. 72.
Counsel for the Hope Defendants, including Dr. Etikerentse, seek to quash the subpoena
because it “fails to allow reasonable time to comply.” Mot. 2, ECF No. 71. Counsel filing the
Motion notes that she was recently retained to represent the Hope Defendants and filed a Notice
of Appearance on July 26, 2013. Id. Counsel submits that her recent involvement in the case,
combined with the fact the subpoena was issued July 30, 2013, “less than 10 days before” the
scheduled deposition, require the subpoena to be quashed because it does not provide
“reasonable time to comply.” Id. (citing Fed. R. Civ. P. 45(c)(3)(A)(i)).
In response, Plaintiff submits the subpoena should not be quashed because Defendant Dr.
Etikerentse has been permitted reasonable time for compliance. Pl.’s Resp., ECF No. 72.
Plaintiff notes that the subpoena did provide ten days’ notice. Id. at 2.2 In addition, Plaintiff
informs the court that Dr. Etikerentse’s deposition has been scheduled since mid-July 2013.
Plaintiff notes that, prior to the July 2013 appearance by additional counsel, the Hope Defendants
have been represented by Jeremy Canipe, Esquire, who remains co-counsel for the Hope
Defendants. Id. As evidenced in emails between a legal assistant for Plaintiff’s counsel and a
paralegal for Mr. Canipe, the August 9, 2013 date for Dr. Etikerentse’s deposition was set on
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Defendants’ Motion does not include a copy of the subpoena it seeks to quash. Because the
grounds of the Motion do not specifically call into question the details of the subpoena itself, the
court finds it is unnecessary to review the subpoena itself prior to ruling on the Motion.
2
The Hope Defendants argue one of the reasons the subpoena should be quashed is because it
was issued fewer than ten days before the scheduled deposition. The court notes, however, that
Rule 45(c)(3) of the Federal Rules of Civil Procedure includes no notice requirement of a
specific number of days. Cf. Fed. R. Civ. P. 45(c)(3)(A)(i) (requiring a subpoena that “fails to
provide a reasonable time to comply” be quashed or modified). Although Rule 30(b)(1) of the
South Carolina Rules of Civil Procedure requires a ten-day written notice of a deposition,
Federal Rule of Civil Procedure 30 contains no such requirement. Compare Rule 30(b)(1),
SCRCP with Fed. R. Civ. P. 30.
2

July 10, 2013, and confirmed on July 12, 2013. See ECF No. 72-1 (emails regarding scheduling).
In a July 10, 2013 email, the legal assistant for Dr. Etikerentse’s then-sole counsel, Mr. Canipe,
proposed August 9, 2013 as the date for the deposition of Dr. Etikerentse. ECF No. 72-1 at 1
(“Dr. Etikerentse is available on August 9th from 7-9 a.m.”). Several minutes later, the paralegal
for Plaintiff’s counsel confirmed that date and time. Id. On July 12, 2013, the assistant for the
Hope Defendants’ counsel reconfirmed August 9, 2013 as the date for Dr. Etikerentse’s
deposition. Id.
Having considered the filings of the parties, the court finds Plaintiff provided ample
notice of the deposition of Dr. Etikerentse. The information before the court indicates counsel
worked together to schedule numerous depositions, including that of Dr. Etikerentse. Although
the Hope Defendants, including Dr. Etikerentse, recently retained additional counsel, Mr. Canipe
has been representing Dr. Etikerentse at least since November 2, 2012—the date he signed the
Joint Notice of Removal to this court, ECF No. 1. Mr. Canipe’s office suggested August 9, 2013
as the date of Dr. Etikerentse’s deposition.
For the foregoing reasons, the Hope Defendants’ Motion to Quash, ECF No. 71, is
denied. The deposition of Dr. Etikerentse is to go forward as scheduled.
IT IS SO ORDERED.

August 6, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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