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Marten v. Haire

United States District Court, D. Montana, Helena Division

November 9, 2018

ELLEN MARTEN, as Guardian and Conservator of Glen Marten, Plaintiff,
v.
GENE HAIRE, STATE OF MONTANA, and DOES 1-10, Defendants,

          ORDER

          CHARLES C. LOVELL, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant State of Montana's "Motion to Quash Subpoena and for Protective Order" (Doc. No. 49) and Plaintiffs "Motion to Compel Discovery Pursuant to Fed.R.Civ.P. 37." (Doc. No. 54). The motions were argued on October 30, 2018. Natasha Prinzing Jones of Boone Karlberg P.C. argued for the State of Montana (the State). Sarah Clerget, Assistant Montana Attorney General, was also present. Plaintiff was represented by Terance Perry of Datsoupolis, McDonald & Lind, P.C. The Court has reviewed the parties' briefs and received argument and is prepared to rule.

         BACKGROUND

         On September 20, 2018, Plaintiff sent a subpoena to counsel for the State of Montana. The subpoena was directed to "Keeper of the Records, Montana Department of Justice, Division of Criminal Investigation" and directed the deponent to appear on October 5, 2018, and produce the following documents:

1. A signed, certified copy of the Closure Report Number F1141208 ("Closure Report") including all attachments thereto, dated June 26, 2015 regarding Glen Marten and the Montana Developmental Center (MDC) in Boulder, Montana. The certification shall conform with Fed.R.Evid. 902 which states: . ..
2. Copies of all audio recordings of taped interviews taken by DOJ Investigator Spencer as outlined on pages 1 and 2 of the Closure Report.
3. A signed, certified copy of the Analysis and Finding for the Closure Report dated June 26, 2015.

(Doc. No. 50-1).

         The State filed its motion on October 4, 2018, and the Court entered an order the next day staying the subpoena, expediting briefing, and setting a hearing for October 30, 2018. (Doc. No. 51). On October 17, 2018, Plaintiff filed a "Motion to Compel Discovery Pursuant to Fed.R.Civ.P. 37." Plaintiffs brief in support of her October 17, 2018, motion is captioned "Memorandum in Support of Motion to Compel and in Opposition to Motion to Quash Subpoena and for Protective Order." (Doc. No. 55). Plaintiff seeks to compel the State to produce essentially the same materials requested in its subpoena - the "Closure Report, all attachments to it, all audio recordings referenced by it, recordings of any percipient witness and a signed copy of the Analysis and Finding dated June 26, 2015." (Doc. 54 at 6).

         The State filed its reply on October 26, 2018, in accordance with the Court's expedited briefing schedule. (Doc. No. 57). The Court allowed Plaintiffs counsel to argue first at the hearing as Plaintiff had not had an opportunity to reply to the State's October 26, 2018, brief.[1]

         SUMMARY OF PARTIES' ARGUMENTS

         State of Montana

         The State argues that the subpoena which was issued under Rule 45 of the Federal Rules of Civil Procedure should be quashed because Rule 45 governs discovery of non-parties and should not be used to circumvent the rules that apply to discovery between parties - specifically Rule 34. The State acknowledges that there is conflicting authority amongst district courts as to whether a Rule 45 subpoena may ever be served on a non-party, and that no federal court of appeals has directly addressed this issue. The State asks the court to follow the reasoning of a district judge in Nevada who recently addressed this issue:

If a party has served discovery requests on the opposing party to which the latter has objected, then the requesting party should (1) attempt to resolve the discovery dispute through the meet and confer process required by Rule 37(a)(1) and Local Rule 26-7(c), and if that is unsuccessful, (2) timely file a motion to compel production of the requested documents or information. In general, it is not proper to avoid the opposing party's objections by requesting the same documents or information through another discovery device. It would be improper, for example, to serve duplicate requests for production of documents to which the opposing party has already objected, thereby forcing the party to once again object. Likewise, it is not proper to serve a subpoena duces tecum on the opposing party to produce documents that it has already objected to producing in its response to requests for production. Although most courts hold that a subpoena duces tecum may be served on another party, it cannot be used to circumvent Rule 34 or the other discovery rules.

McCall v. State Farm Mut. Auto. Ins, Co., 2017 U.S. Dist. LEXIS 117250, at * 16-17 (D. Nev. July 26, 2017)(internal citations omitted). The State argues that Plaintiff is doing exactly what the Nevada District Court warned against - serving a subpoena duces tecum on the opposing party seeking production of documents that the opposing party has already objected to producing, rather than attempting to ...


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