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Gonzalez v. Peterson

United States District Court, D. Montana, Billings Division

June 16, 2017

HECTOR GUILLERMO SMITH MAC DONALD GONZALEZ, Plaintiff,
v.
WHITNEY MERLYNN PETERSON, Defendant.

          ORDER

          SUSAN P. WATTERS United States District Judge

         Before the Court is nonparties Tim and Connie Peterson's Motion to Quash subpoenas issued by Hector Gonzalez, or in the alternative, for a protective order. (Doc. 25). For the following reasons, the Court grants in part and denies in part the motion.

         I. Facts

         On March 14, 2017, Gonzalez filed a Petition for Return of Child to Petitioner pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 42U.S.C. §§ 11601-11610. (Doc. 1). Gonzalez's petition alleges Whitney Peterson, his wife, wrongfully removed the couple's two children from their habitual residence in Mexico City, Mexico. (Doc. 1 at 5). At the time of filing, it was Gonzalez's belief that Whitney was holding the children at her parent's home in Livingston, Montana. (Doc. 1 at 7).

         Gonzalez has been unable to locate Whitney to serve her with the Petition. Gonzalez moved the Court for leave to conduct discovery for the limited purpose of locating Whitney so that she may be served. (Doc. 21). The Court determined good cause existed to conduct limited discovery and granted Gonzalez's motion. (Doc. 23). Gonzalez subpoenaed Whitney's parents, Tim and Connie Peterson (the Petersons), to attend depositions and produce documents and communications concerning the Petersons' interactions with Whitney over the past year. (Docs. 25-7 and 25-8). Gonzalez scheduled the depositions to take place in Livingston, where Tim and Connie Peterson live. (Doc. 25-8 at 1). Gonzalez made twelve specific requests for documents. (Doc. 25-8 at 3-4). Document request numbers 1 and 2 contained the limitation "related to [Whitney's] present whereabouts and her whereabouts over the course of the previous year." (Doc. 25-8 at 3). Document request numbers 3, 4, and 5, did not contain the limitation. (Doc. 25-8 at 3-4).

         The Petersons contacted Gonzalez and stated they have no information regarding the whereabouts of Whitney and the children. (Doc. 25-7). Gonzalez responded that he would accept sworn affidavits in lieu of depositions. (Doc. 25-7). Gonzalez provided the Petersons with prepared affidavits and agreed to delay the depositions pending the Petersons' response. (Doc. 25-7).

         The Petersons did not sign Gonzalez's prepared affidavits. Instead, the Petersons filed a motion to quash the subpoenas and submitted sworn declarations stating, among other things, the following:

23. I do not have any reason to believe that Whitney has traveled or intends to travel to Montana.
24. Whitney has not revealed her location (or that of the children) to myself.
25. I do not know Whitney or the children's location or where they intend to reside now or in the future.

(Doc. 25-3 at 5-6; Doc. 25-2 at 4-5).

         II. Law

         Broad discretion is vested in the trial court to permit or deny discovery. Kobold v. Good Samaritan Regional Medical Center, 832 F.3d 1024, 1047 (9th Cir. 2016).

         On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(d)(3)(A)(i-iv). Any person from ...


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