(PC) Daniels v. Arnold ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TED DARNELL DANIELS, No. 2:16-cv-0551 MCE AC P 11 Plaintiff, 12 v. ORDER 13 ERIC ARNOLD, 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 17 action. By order filed April 22, 2020, and at plaintiff’s request, the deadlines were extended in 18 this case for a period of ninety days. ECF No. 49. The discovery deadline was extended from 19 May 1, 2020 to July 31, 2020, and the dispositive motion was extended from July 31, 2020 to 20 October 30, 2020. Id. Prior to the filing of that order, plaintiff prepared and filed two discovery 21 related motions. The first is a general request for the issuance of three blank subpoena forms. 22 ECF No. 50. The second is a motion to compel discovery from sole defendant Lotersztain. ECF 23 No. 51. 24 In light of the extended deadlines in this case, plaintiff’s motion to compel discovery will 25 be denied without prejudice to its later renewal if necessary. The court grants plaintiff’s request 26 for issuance of the three requested blank subpoena forms, and informs plaintiff of the showing he 27 must make when he returns the completed forms to the court in order to obtain the assistance of 28 the United States Marshal in serving the subpoenas. 1 A subpoena duces tecum, served pursuant to Federal Rule of Civil Procedure 45(a)(2), 2 directs a nonparty to an action to produce documents or other tangible objects for inspection. 3 Because plaintiff is proceeding in forma pauperis, he is entitled to obtain personal service of an 4 authorized subpoena duces tecum by the United States Marshal. See 28 U.S.C. § 1915(d). A 5 subpoena must be personally served or it is null and void. Fed. R. Civ. P. 45(c); Gillam v. A. 6 Shyman, Inc., 22 F.R.D. 475 (D. Alaska 1958). 7 This court must consider the following matters before approving service of a proposed 8 subpoena duces tecum. A subpoena must comply with the relevance standards set forth in 9 Federal Rule of Civil Procedure 26(b)(1) (“[p]arties may obtain discovery regarding any 10 nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs 11 of the case”), and considerations of burden and expense set forth in Federal Rules of Civil 12 Procedure 26(b)(2)(C) and 45(d). The “Federal Rules of Civil Procedure were not intended to 13 burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with a 14 subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (requiring 15 indigent plaintiff to demonstrate that he had “made provision for the costs of such discovery”) 16 (citing Cantaline v. Raymark Industries, Inc., 103 F.R.D. 447, 450 (S.D. Fla. 1984)); see also 17 United States v. Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir. 1982) (court may 18 award costs of compliance with subpoena to non-party). Non-parties are “entitled to have the 19 benefit of this Court’s vigilance” in considering these factors. Badman, 139 F.R.D. at 605. 20 Additionally, courts in this district require that a motion requesting service of a subpoena 21 duces tecum be supported by: (1) clear identification of the documents sought and from whom, 22 and (2) a showing that the records are obtainable only through the identified third party. See e.g. 23 Davis v. Ramen, 2010 WL 1948560, *1 2010 U.S. Dist. LEXIS 115432 (E.D. Cal. 2010) (Oberto, 24 M.J.); Williams v. Adams, 2010 WL 148703, *1 2010 U.S. Dist. LEXIS 10248 (E.D. Cal. 2010) 25 (Snyder, M.J.). 26 The person to whom the subpoena is directed must be clearly and readily identifiable, with 27 an accurate physical address to enable personal service of the subpoena. See Fed. R. Civ. P. 28 45(a)(1)(A)(iii). 6wAIS 6 LY VEY SING □□□ ENN RUT VP Oe PAY OM 1 Finally, pursuant to Rule 45(c)(2), a subpoena duces tecum commands the recipient to 2 | “produce” documents. Plaintiff is advised that he may be provided access to review documents 3 || but that if he wishes to have copies of the documents, he may be required to arrange they be 4 || photocopied at his own expense. 5 Subject to these considerations, the Clerk of Court will send plaintiff three blank subpoena 6 || forms for his completion and submission to the court. To obtain service of the subpoenas by the 7 | United States Marshal, plaintiff must complete the forms and submit them to the court with a 8 || motion demonstrating entitlement to such service. The motion should address the factors 9 || identified above. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s request for the issuance of three blank subpoena forms, ECF No. 50, is 12 | granted. 13 2. The Clerk of Court is directed to send plaintiff, together with a copy of this order, three 14 || subpoena duces tecum forms, signed but otherwise blank, pursuant to Rule 45, Federal Rules of 15 | Civil Procedure. 16 3. Within thirty (30) days after the filing date of this order, plaintiff shall complete the 17 || proposed subpoena duces tecum forms, and return these documents to the court with the attached 18 || Notice of Submission, together with a motion requesting service of the proposed subpoenas by 19 || the United States Marshal. 20 4. Plaintiff’s motion to compel discovery, ECF No. 51, is denied without prejudice. 21 || DATED: April 29, 2020 ~ 22 Chthien—Chare ALLISON CLAIRE 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TED DARNELL DANIELS, No. 2:16-cv-0551 MCE AC P 12 Plaintiff, 13 v. NOTICE OF SUBMISSION 14 ERIC ARNOLD, 15 Defendants. 16 17 18 Plaintiff submits the following documents in compliance with the court’s order filed 19 _____________________: 20 21 ____ Completed subpoena duces tecum summons forms (proposed) 22 ____ Support motion requesting service of subpoenas by United States Marshal 23 24 25 ____________________________________ ____________________________________ 26 Date Plaintiff 27 28