Jones v. National American University

Filing 85

ORDER denying 68 Motion to Compel. Signed by Chief Judge Karen E. Schreier on 10/16/2008. (KC)

UNITED STATES DISTRICT COURT D IS TR IC T OF SOUTH DAKOTA W E S TE R N DIVISION K A TH Y D. JONES, ) ) Plaintiff, ) ) vs. ) ) N A TI O N A L AMERICAN UNIVERSITY, a ) d iv is io n of Dlorah, Inc., ) ) Defendant. ) C I V . 06-5075-KES

O R D E R DENYING PLAINTIFF'S M O TI O N TO COMPEL P R O D U C TI O N AND/OR IN S P E C TIO N

P la in t iff moves to compel production and/or inspection of documentation re la te d to wage information of Angela Beck and any other person holding the D ire c to r of Admissions position at National American University (NAU) from A u g u s t 2004 to present pursuant to Federal Rule of Civil Procedure 45(B)(i). Defendant opposes the motion. The motion is denied. F A C T U A L BACKGROUND T h is matter has been pending since September 2006. The discovery d e a d lin e was October 19, 2007. Summary judgment was denied on May 5, 2 0 0 8 . Trial is scheduled to commence on November 4, 2008. On July 11, 2008, plaintiff sent a letter to NAU requesting Angela Beck's wage information and records along with an explanation of any pay changes. Docket 71-2, Exhibit C, at p. 12. On July 21, 2008, NAU responded with a le tte r, stating that the discovery deadline had passed and, as a result, it was not o b lig a te d to provide the requested information. Docket 71-2, Exhibit D, at p.

1 4 . On August 13, 2008, plaintiff served a subpoena on NAU, demanding p ro d u c tio n and inspection of "[w]age information and records from August 2004 to present for Angela Beck and any other person holding the Director of E n r o llm e n t Management or Director of Admissions position or other similar title s from August 2004 to present." Docket 71-2, Exhibit E, at p. 16. On A u g u s t 19, 2008, NAU served objections to plaintiff's subpoena. Docket 71-2, E x h ib it F, at p. 19, 21. Subsequently, on September 4, 2008, plaintiff filed this m o tio n to compel production. Docket 68. D IS C U S S IO N I. P r o d u c t io n of Documents A. F e d e r a l Rules of Civil Procedure 34 and 45

F e d e ra l Rules of Civil Procedure 34 and 45 govern the production of d o c u m e n ts and tangible things in civil discovery. Rule 34(a) permits a party to s e rv e on any other party a request for the production of documents or things w ith in that party's possession, custody, or control, while Rule 34(c) provides th a t a person not a party to the action may be compelled to produce documents a n d things or to submit to an inspection as provided in Rule 45. Because Rule 3 4 specifically references a procedure for obtaining documents from a party and s p e c ific a lly states that documents can be obtained from non-parties pursuant to R u le 45, the court finds that the language of Rule 34 indicates that it applies to d o c u m e n ts requested from parties and Rule 45 applies to documents requested fro m non-parties.

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Th is conclusion is further supported by the advisory committee notes to R u le 45. The advisory committee notes recognize that one of the purposes of R u le 45 is "to facilitate access outside the deposition procedure provided by R u le 30 to documents and other information in the possession of persons who a re not parties." Fed. R. Civ. P. 45, advisory committee notes. Additionally, the a d v is o r y notes indicate that under Rule 45, "[t]he non-party witness is subject to the same scope of discovery under this rule as that person would be as a p a rty to whom a request is addressed pursuant to Rule 34." Id. See also 9A W rig h t and Miller, Federal Practice & Procedure, § 2425 (stating that Rule 45 "s u b je c t[s ] a nonparty witness to the same scope of discovery as that person w o u ld be as a party to whom a request for documents and other materials is a d d re s s e d pursuant to Rule 34"). These comments presume that Rule 45 a p p lie s to individuals who are not parties to the lawsuit. Moreover, cases interpreting Rule 34 and Rule 45 demonstrate that Rule 3 4 applies to documents requested from parties and Rule 45 applies to d o c u m e n ts requested from non-parties. While some courts have stated that a s u b p o e n a duces tecum under Rule 45 applies to both parties and non-parties, th o s e courts have made such statements in dicta because the cases involved the is s u a n c e of subpoenas duces tecum to non-parties. See Badman v. Stark, 139 F .R .D . 601, 603 (M.D. Pa. 1991) (stating that a subpoena under Rule 45 may be s e rv e d upon both party and non-party witnesses but determining that because

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th e individuals that plaintiff sought discovery from were not parties to the la w s u it, production for documents could be compelled only by a subpoena d u c e s tecum issued under Rule 45) and Cont'l Coatings Corp. v. Metco, Inc., 50 F .R .D . 382, 384 (N.D. Ill. 1970) (stating that a subpoena under Rule 45 may be s e rv e d upon both party and non-party witness but finding that Rule 45 applied to the request for documents because the individuals were not parties to the a c tio n ). But courts considering subpoenas duces tecum issued to parties have c o n c lu d e d that Rule 45 does not apply to parties. Hasbro, Inc. v. Serafino, 168 F .R .D . 99, 100 (D. Mass. 1996) (stating "Rule 45, to the extent it concerns d is c o v e r y , is still directed at non-parties and . . . Rule 34 governs the discovery o f documents in the possession or control of the parties themselves") and C o n ta rd o v. Merrill Lynch, Pierce, Fenner, & Smith, 119 F.R.D. 622, 624 (D. M a s s . 1988) (stating that "[d]iscovery of documents from a party is not a c c o m p lis h e d pursuant to Rule 45(b) [because] [t]hat rule governs discovery of d o c u m e n ts in the possession, custody and/or control of non-parties [while] [d ]is c o v e ry of documents from parties is governed by Rule 34") (emphasis in the o r i g i n a l ). Based upon the plain meaning of the rules, the committee notes of the ru le s , and case law interpreting the rules, the court finds that Rule 34 governs th e discovery of documents in the possession or control of the parties th e m s e lv e s and Rule 45 concerns obtaining discovery from non-parties.

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A c c o rd in g ly , because plaintiff requested documents from the defendant, NAU, R u le 34 governs. Plaintiff improperly served a subpoena on NAU pursuant to R u le 45 rather than seeking the production of the documents pursuant to R u le 34. Accordingly, plaintiff's motion should have been made pursuant to R u le 34 and is untimely because it was made more than ten months after the d is c o v e ry deadline. Therefore, plaintiff's motion to compel is denied. B. T im e lin e s s of Motion

E v e n if Rule 45 does apply to obtaining documents from parties, the court fin d s that plaintiff's motion is untimely. "Rule 45 Subpoenas, which are in t e n d e d to secure the pretrial production of documents and things, are e n c o m p a s s e d within the definition of `discovery,' as enunciated in Rule 26(a)(5) a n d , therefore, are subject to the same time constraints that apply to all of the o th e r methods of formal discovery." Marvin Lumber & Cedar Co. v. PPG Indus., I n c ., 177 F.R.D. 443 (D. Minn. 1997). See also McNerney v. Archer Daniels M id la n d Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) (stating that "when a plaintiff . . . is aware of the existence of documents before the discovery cutoff date and is s u e s discovery requests including subpoenas after the discovery deadline has p a s s e d , then the subpoenas and discovery requests should be denied") and Rice v . United States, 164 F.R.D. 556, 557, 558 (N.D. Okla. 1995) (stating that "Rule 4 5 subpoenas duces tecum . . . constitute discovery [and that] [d]efendant was n o t free . . . to issue subpoenas duces tecum after the discovery deadline").

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H e re , the discovery deadline set by the court was October 19, 2007. Docket 36. Plaintiff served a subpoena duces tecum on NAU to produce d o c u m e n ts relating to wages on August 13, 2008, almost ten months after the d is c o v e ry deadline. Docket 71-2, Exhibit E. Because a subpoena duces tecum is considered a discovery mechanism, it should have been served before the d is c o v e ry deadline. Therefore, plaintiff's request for documents was untimely. Significantly, plaintiff did not move to extend the discovery deadline, and she h a s offered no reason as to why she served the subpoena duces tecum over ten m o n th s after the discovery deadline. Further, plaintiff will not be prejudiced by d en ia l of this motion because plaintiff has indicated in her pretrial submissions th a t she plans to call at trial the NAU custodian of records for pay information re g a rd in g the Director of Admissions position. Docket 74, at p. 1. II. Expenses F e d e ra l Rule of Civil Procedure 37(a)(5)(B) provides that if a motion to c o m p e l is denied, the court "must, after giving an opportunity to be heard, re q u ire the movant, the attorney filing the motion, or both to pay the party . . . w h o opposed the motion its reasonable expenses incurred in opposing the m o tio n , including attorney's fees," unless "the motion was substantially justified o r other circumstances make an award of expenses unjust." A motion is "substantially justified" if it raises an issue about which "th e re is a `genuine dispute,' or `if reasonable people could differ as to the

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a p p ro p ria te n e s s of the contested action.' " Pierce v. Underwood, 487 U.S. 552, 5 6 5 , 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988) (citations omitted). The court fin d s that plaintiff was reasonable in her view that she could obtain documents fro m NAU through a subpoena duces tecum because there is no controlling a u t h o r ity in this circuit addressing this issue and few cases, in general, that d ire c tly address this issue. Further, despite the fact that plaintiff cannot obtain th e requested documents through this motion, the contents of such documents c a n properly be admitted into evidence during trial through testimony. Therefore, the court finds that plaintiff was substantially justified in filing her m o tio n to compel and, as a result, defendant is not entitled to an award of its expenses. B a se d on the foregoing, it is hereby O R D E R E D that plaintiff's motion to compel production and/or inspection (D o c k e t 68) is denied. I T IS FURTHER ORDERED that defendant's request for expenses is d e n ie d . D a te d October 16, 2008. B Y THE COURT:

/s/

Karen E. Schreier

K A R E N E. SCHREIER C H I E F JUDGE

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