United States District Court, D. Montana, Helena Division
ELLEN MARTEN, as Guardian and Conservator of Glen Marten, Plaintiff,
GENE HAIRE, STATE OF MONTANA, and DOES 1-10, Defendants,
CHARLES C. LOVELL, SENIOR UNITED STATES DISTRICT JUDGE
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
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
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).
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).
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.
OF PARTIES' ARGUMENTS
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
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 ...