Tiscareno et al v. Frasier et al

Filing 302

MEMORANDUM DECISION and Order granting 268 Motion to Quash.IT IS FURTHER ORDERED that Plaintiffs request for sanctions related to their motion to quash is DENIED as described above and granting 281 Motion for Leave to File a Su rreply to Plaintiff's Motion to Quash the Subpoena Duces Tecum to Earl Xaiz in Order to Correct the Misrepresentation that Dr. Frasier's Counsel Failed to Meet-and-Confer and Memorandum in Support filed by Defendant Lori Frasier. See Order for details. Signed by Magistrate Judge Dustin B. Pead on 2/15/13. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

ABBY TISCARENO,
GUILLERMO TISCARENO,
Plaintiffs,

MEMORANDUM DECISION AND ORDER
Case No. 2:07-cv-00336-CW-DBP

v.

District Judge Clark Waddoups

LORI FRASIER, et al.

Magistrate Judge Dustin B. Pead

Defendants.

I.

INTRODUCTION

This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). Plaintiffs are Abby
and Guillermo Tiscareno. Defendant relevant to this decision is Defendant Dr. Lori Frasier.
District Judge Ted Stewart previously summarized the case. (Docket No. 61.) It stems from
Plaintiff Abby Tiscareno’s criminal prosecution for felony child abuse of a fourteen-month-old
child named N.M., and exculpatory evidence Defendant Frasier allegedly withheld. (Id.)
Specifically, the exculpatory evidence showed prior bleeding in N.M.’s head suggesting prior
injury. (Id.)
Before the Court is Plaintiffs’ motion to quash the second subpoena duces tecum Defendant
Frasier served on nonparty Earl Xaiz. (Dkt. No. 268). Xaiz acted as Abby Tiscareno’s defense
attorney during her first, criminal trial. The Court granted Xaiz’s third party motion for joinder
in Plaintiffs’ motion to quash. (Dkt. No. 298.) The Court also considers Defendant Frasier’s
motion for leave to file a surreply to Plaintiffs’ motion to quash. (Dkt. No. 281.)

Page 1 of 10

The Court GRANTS Plaintiffs’ motion to quash the second subpoena duces tecum because it
is unreasonably cumulative. (Dkt. No. 268.) As such, the Court will not address Plaintiffs’ other
arguments for quashing. 1 The Court DENIES Plaintiffs’ request for sanctions as described
below. (Dkt. No. 268.) The Court GRANTS Defendant Frasier’s motion for leave to file a
surreply as described below. (Dkt. No. 281.)
II.

PROCEDURAL HISTORY

On November 6, 2012, this Court granted Plaintiffs’ motion to quash the first subpoena duces
tecum (“SDT”) Defendant Frasier served on Xaiz. (Dkt. No. 254 at 3.) The Court quashed the
SDT because of its “defective service” on Plaintiffs, and its “overbroad content.” (Id. at 4.) It
sought a complete copy of Xaiz’s file relating to his criminal representation of Abby Tiscareno.
(Id.) The Court stated “Defendant Frasier [was] free to serve Xaiz a new subpoena as she [saw]
fit.” (Id.)
On December 10, 2012, Defendant Frasier served a second SDT on Xaiz. (Dkt. No. 268-1,
Ex. 2 at 8-10.) The SDT asked Xaiz to produce the following “selected file materials pertaining
to [his] representation of” Abby Tiscareno “with regard to her criminal prosecution”:
(a) Any available trial exhibits admitted to the court at the time of trial still in your
possession.
(b) All expert materials, including correspondence, reports, summaries, evaluations,
resumes, attorney notes, or other materials associated with any experts, both consulting
expert and retained experts, who were involved in this matter, whether for the plaintiff
or for the defense.
(c) All witness files or materials, including all correspondence, notes, attorney notes,
reports, evidence, or other writings associated with any witness.
1

Plaintiffs move to quash the second subpoena duces tecum (“SDT”) Defendant Frasier served
on Xaiz for the following reasons: (1) Defendant Frasier’s counsel failed to meet-and-confer
with Plaintiffs’ counsel prior to serving the SDT; (2) the SDT seeks information irrelevant to the
parties’ claims and defenses, but rather seeks information related to the subject matter of the case
without prior court order; and (3) the SDT violates this Court’s November 6, 2012 order because
it is overbroad, cumulative, harassing, and imposes an undue burden on Plaintiffs and Xaiz. (Dkt.
No. 268.)
Page 2 of 10

(d) To the extent they are not produced under subsection (a) above, any photographs,
video recordings, audio recordings, or any other taped, digital or electronic media or
materials related in any way to the subject prosecution and/or defense in the subject
case, including all witness interviews, police or other interviews.
(Dkt. No. 268-1, Ex. 2 at 10.)
III.

STANDARD OF REVIEW FOR MOTION TO QUASH SUBPOENA DUE TO
CUMULATIVE NATURE

Plaintiffs ask the Court to quash Defendant Frasier’s second SDT, in part, because it is
unreasonably cumulative. (Dkt. No. 268 at 10-11.) Under Fed. R. Civ. P. 26(b)(2)(C)(i) “the
court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that
. . . the discovery sought is unreasonably cumulative or duplicative . . . .” See Hall v. UNUM
Life Ins. Co of America, 300 F.3d 1197, 1203 (10th Cir. 2002) (“Cumulative or repetitive
evidence . . . should not be admitted.”)
Discovery against nonparties is obtained by subpoena. Fed. R. Civ. P. 45. However, “[a]ll
discovery, including that sought through a subpoena, is subject to [Fed. R. Civ. P. 26(b)(2)(C)’s]
limits.” Hunsaker v. Proctor & Gamble Mfg. Co., No. 09-26666-KHV, 2010 WL 5463244, at *4
(D. Kan. Dec. 29, 2010). See also Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 59192 (D. Kan. 2003) (acknowledging that Fed. R. Civ. P. 45 “does not include relevance as an
enumerated reason for quashing a subpoena,” but still quashing a subpoena that sought irrelevant
documents because “[i]t is well settled . . . that the scope of discovery under a subpoena is the
same as the scope of discovery under Rule 26(b) . . . .”).
Relevant here, several courts have quashed subpoenas viewed as unreasonably cumulative or
duplicative. See Haber v. ASN 50th St., LLC, 272 F.R.D. 377, 382 (S.D.N.Y. 2011) (quashing a
subpoena that was duplicative of already answered document requests); Int’l Coal Grp., Inc. v.
Tetra Fin. Grp., LLC, No. 2:09-cv-115-CW-PMW, 2010 WL 2079675, at *2 (D. Utah May 24,

Page 3 of 10

2010) (citing Fed. R. Civ. P. 26(b)(2)(C)(i)’s limitation on unreasonably cumulative and
duplicative discovery to quash a duplicative subpoena that sought documents “likely” already
produced).
IV.

ANALYSIS OF PLAINTIFFS’ MOTION TO QUASH SECOND SUBPOENA
DUCES TECUM

The Court recognizes Defendant Frasier’s argument that her second SDT seeks documents
relevant to defending against Plaintiffs’ Brady claim. (Dkt. No. 274 at 3.) That is, Defendant
Frasier seeks documents that show Xaiz knew about N.M.’s prior-bleeding during Abby
Tiscareno’s first, criminal trial. (Id.) 2 However, given the particular circumstances of this case,
the Court agrees with Plaintiffs that the second SDT is unreasonably cumulative.
Plaintiffs state the parties already produced documents from Prosecutor Brickey’s file, 3
Xaiz’s file, as well as the entire correspondence between Prosecutor Brickey and Xaiz. (Dkt.
No. 268 at 10-11.) Plaintiffs assert these documents “conclusively establish[] that the
exculpatory pathology reports regarding N.M. were never produced to” Prosecutor Brickey, or
Xaiz. (Dkt. No. 280 at 9.) Moreover, a Salt Lake City Tribune article previously submitted into
evidence quotes Prosecutor Brickey, and Xaiz, as never receiving the pathology analysis during
Abby Tiscareno’s first trial. (Dkt. No. 268-1, Ex. 9.) Xaiz even submitted a declaration
confirming he never received exculpatory pathology evidence prior to the first trial. (Id., Ex.
10.)
Based on this, it appears the parties already turned over all of Xaiz’s documents potentially
relevant to the issue of prior-bleeding. In the Court’s opinion, these documents strongly suggest
2

Under U.S. v. Erickson, a Brady violation requires criminal defendants lack knowledge of
exculpatory evidence. 561 F.3d 1150, 1163 (10th Cir. 2009) (“[A] defendant is not denied due
process by the government’s nondisclosure of evidence if the defendant knew of the evidence
anyway.”).
3
Prosecutor Brickey prosecuted Abby Tiscareno in her first, criminal trial.
Page 4 of 10

that Xaiz’s knowledge of prior-bleeding, if any, is not contained in his criminal file. Indeed,
Defendant Frasier’s only reason to speculate to the contrary stems from: (1) a medical expert’s
(Dr. Walker’s) testimony that N.M’s pathology analysis showed some old blood; and (2) Xaiz’s
reference to this testimony in his closing argument. (Dkt. Nos. 274 at 7-8; 276-6; 276-7.) See
Tiscareno v. Frasier, No. 2:07-CV-336 TS, 2008 WL 4527340, at *3 (D. Utah Sept. 29, 2008)
(“Dr. Walker’s trial testimony about the pathology examination was the first time he had
mentioned the fact of the pathology examination . . . in the presence of the prosecution team.”)
(emphasis added).
In light of the above, the Court concludes that Defendant Frasier failed to provide adequate
reasons to believe that Xaiz’s file contains documents evidencing his knowledge of prior
bleeding. Without more, the Court holds Defendant Frasier’s second SDT is cumulative of
documents already produced. See Koch v. Koch Indus., Inc., No. 85-1636-C, 1992 WL 223816,
at *12 (D. Kan. Aug. 24, 1992) (“Cumulative discovery requests may be denied when they lack
any real potential for producing previously undiscovered material.”). Therefore, the Court
GRANTS Plaintiffs’ motion to quash the second SDT Defendant Frasier served on Xaiz. (Dkt.
No. 268.) 4
V.

SANCTIONS

Plaintiffs seek sanctions against Defendant Frasier’s counsel, Andrew Morse, for the
following reasons: (1) failing to meet-and-confer regarding Plaintiffs’ objections to the second
SDT; (2) failing to obtain a court order allowing for subject matter discovery; and (3) allegedly

4

If Defendant Frasier wishes to subpoena Xaiz, rather than his criminal file (Dkt. No. 274 at 14),
then she must follow Fed. R. Civ. P. 45, and serve an appropriate subpoena on him, rather than a
subpoena duces tecum.
Page 5 of 10

violating this Court’s November 6, 2012 order by serving an overbroad SDT. (Dkt. No. 268 at
12.)
Conversely, Defendant Frasier argues sanctions are not warranted. (Docket No. 274 at 14.)
She argues Morse provided Collard detailed letters explaining why the documents requested met
the discovery standard. (Id.) For the reasons below, the Court agrees with Defendant Frasier.
Accordingly, the Court DENIES Plaintiffs’ request for sanctions. (Dkt. No. 268.)
A. Failure to Meet-and-Confer as Sanction Ground
i.

Correspondence History

On November 13, 2012, Collard sent Morse a written objection to the second SDT. (Dkt.
No. 268-1, Ex. 3 at 12-15.) Collard asked Morse to “explain how each category of requested
documents [was] relevant to any of the claims or defenses of the parties in this action.” (Id. at
13.)
On December 4, 2012, Morse wrote to Collard to address her objections. (Id., Ex. 6 at 2324.) Morse opined the documents sought were reasonably calculated to lead to admissible
evidence. (Id. at 23.) Morse believed Xaiz’s file contained exculpatory evidence related to
Plaintiffs’ Brady violation claim. (Id.) Morse also believed Xaiz’s file contained admissions of
probable cause related to Plaintiffs’ malicious prosecution claim. (Id.) He asked Collard to
“[p]lease consider this [letter] our attempt to meet and confer to resolve this discovery dispute.”
(Id. at 24.)
On December 6, 2012, Collard wrote Morse. (Dkt. No. 268-1, Ex. 7.) She opined that
Morse had not sufficiently explained the relevance of the documents sought. (Id.) In their
subsequent motion to quash, Plaintiffs claim that, on December 10, 2012, Morse served the

Page 6 of 10

second SDT on Xaiz, without responding to Plaintiffs’ December 6, 2012 letter. (Dkt. No. 268
at 8.)
In direct contradiction to Plaintiffs’ accusation, in her opposition, Defendant Frasier states
that, on December 7, 2012, Morse responded to Collard’s December 6, 2012 letter. (Dkt. No.
274 at 5.) Defendant Frasier neglected to attach the response letter to her opposition. However,
she claims the letter addressed Plaintiffs’ concerns that the second SDT was identical to the first,
and provided a side-by-side analysis of the two subpoenas. (Id.) The letter also explained, in
detail, why Defendant Frasier believed each category of evidence sought was relevant to show
Xaiz’s knowledge of prior bleeding. (Id. at 6.)
Despite Defendant Frasier’s reference to the December 7, 2012 letter in her opposition, in
Plaintiffs’ reply, they assert Morse “does not dispute Plaintiffs’ facts showing that he served the
second subpoena duces tecum . . . without responding to the letter from Plaintiffs’ counsel dated
December 6, 2012, requesting an opportunity to meet and confer.” (Dkt. No. 280 at 2.)
ii.

Defendant Frasier’s Motion for Leave to File Surreply

Defendant Frasier filed a motion for leave to file a surreply. (Dkt. No. 281.) She wants to
“correct[ ] Plaintiffs’ counsel’s misrepresentation in her reply memorandum that” Morse served
the second SDT without responding to Plaintiffs’ December 6, 2012 letter. (Id. at 1-2.) As
support, Defendant Frasier attached Morse’s December 7, 2012 letter to Collard. (Dkt. No. 2812, Ex. B.) The letter includes a detailed, four-page explanation about the legal basis for the SDT,
and asks Collard to consider the letter a final attempt to meet-and-confer. (Id.)
Plaintiffs oppose Defendant Frasier’s motion for leave to file a surreply. (Dkt. No. 283.)
They claim “the Court can determine, without the aid of Defendant Frasier’s proposed surreply,

Page 7 of 10

whether or not Plaintiffs’ counsel was correct in representing in Plaintiffs’ Reply memorandum”
that Morse failed to respond to Collard’s December 6, 2012 letter. (Id. at 3.)
Because Plaintiffs’ allegation of a failure to meet-and-confer regarding the December 6, 2012
letter is serious, and because Defendant Frasier’s December 7, 2012 meet-and-confer letter is
only attached to her motion for leave to file a surreply, the Court GRANTS the motion. (Dkt.
No. 281.) The Court believes a full analysis of Morse’s attempt to meet-and-confer cannot occur
without considering the December 7, 2012 letter as evidence.
iii.

Court’s Conclusion on Meet-and-Confer as Sanction Ground

The Court considered all the parties’ correspondence about the second SDT, including
Morse’s December 7, 2012 letter. The Court concludes that, as it relates to sanctions, Morse
satisfied the meet-and-confer requirement prior to serving the second SDT on Xaiz. Morse sent
Collard two, detailed letters, specifically addressing Collard’s relevance concerns. He asked
Collard to consider the letters as satisfying the meet-and-confer requirement. The
correspondence demonstrates the parties’ irreconcilable viewpoints about the relevance of the
documents sought. Given this, it is unclear what any further attempt to meet-and-confer would
have accomplished. Accordingly, the Court DENIES Plaintiffs’ request for sanctions on the
meet-and-confer ground. (Dkt. No. 268.)
B. Failure to Obtain a Court Order Allowing for Subject Matter Discovery as Sanction
Ground
Plaintiffs argue “the only documents relevant to the parties’ claims and defenses[] are the
exculpatory pathology reports and slides and other medical records indicating . . . prior bleeding
in N.M.’s brain.” (Id. at 8.) Because Defendant Frasier’s SDT “seeks other broad categories of
irrelevant documents,” Plaintiffs assert Defendant Frasier should have obtained a court order

Page 8 of 10

allowing for subject matter discovery. (Id. at 9.) Where Defendant Frasier failed to do so,
Plaintiffs claim the Court should award sanctions. (Id. at 12.)
The Court agrees with Defendant Frasier, in that she did not require a court order to serve her
second SDT just because Plaintiffs subjectively believe it relates to irrelevant subject matter.
(Dkt. No. 274 at 7.) In Re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188-89 (10th Cir. 2009)
(“[W]hen a party objects that discovery goes beyond that relevant to the claims or defenses, the
court would become involved to determine whether the discovery is relevant to the claims or
defenses, and if not, whether good cause exists for authorizing it so long as it is relevant to the
subject matter of the action.”) (emphasis added). Therefore, the Court DENIES Plaintiffs’
request for sanctions on this ground. (Dkt. No. 268.)
C. Violating Previous Court Order as Sanction Ground
Plaintiffs claim sanctions are warranted because Defendant Frasier violated this Court’s
November 6, 2012 order by serving an overbroad SDT. (Id. at 12.) However, this Court’s
November 6, 2012 order permitted Defendant Frasier to serve another subpoena as she saw fit.
(Dkt. No. 254 at 4.) The second SDT’s alleged overbroadness does not violate this Court’s
previous order. Rather, it constitutes an argument for quashing the SDT. Accordingly, the Court
DENIES Plaintiffs’ request for sanctions on this ground. (Dkt. No. 268.)
VI.

ORDERS

Based on the analysis above, the Court issues the following orders:
IT IS ORDERED that Plaintiffs’ motion to quash the second subpoena duces tecum
Defendant Frasier served on Earl Xaiz is GRANTED as described above, and the Court does so
QUASH it. (Dkt. No. 268.)

Page 9 of 10

IT IS FURTHER ORDERED that Plaintiffs’ request for sanctions related to their motion to
quash is DENIED as described above. (Dkt. No. 268.)
IT IS FURTHER ORDERED that Defendant Frasier’s motion for leave to file a surreply to
Plaintiffs’ motion to quash is GRANTED as described above. (Dkt. No. 281.)
Dated this 15th day of February, 2013.

Dustin B. Pead
United States Magistrate Judge

Page 10 of 10