Soto v. County of Sacramento ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SILVIA SOTO, an individual, LATANYA No. 2:19-cv-0910 TLN DB ANDREWS, an individual, M.M.S., a 12 minor, and M.M.S., a minor, by and through their guardian ad litem, SILVIA 13 SOTO, in each case both individually and ORDER as successors-in-interest to the ESTATE 14 OF MARSHALLMILES, Deceased, 15 Plaintiffs, 16 v. 17 COUNTY OF SACRAMENTO, BLAKE GRINDER, KENNETH LLOYD, JOHN 18 HIGLEY, ANDREW GARSIDE, GREG WHITE, KELLEY BUNN, GREGORY 19 JOHNSON, CHARLES GAILEY, SCOTT JONES, PATRICIA ROBINSON-HARD 20 and Does 1 through 100, et al, 21 Defendants. 22 23 On February 18, 2021, defendants filed a motion to quash a subpoena served by plaintiffs 24 pursuant to Rule 45 of the Federal Rules of Civil Procedure and noticed the motion for hearing 25 before the undersigned on March 12, 2021, pursuant to Local Rule 302(c)(1). (ECF No. 57.) On 26 March 5, 2021, the parties filed a Joint Statement re Discovery Disagreement. (ECF No. 59.) 27 Non-expert discovery in this action, however, must have been completed by February 5, 28 2021. (ECF No. 54.) As explained in the scheduling order issued by the assigned District Judge 1 on May 21, 2019, “‘completed’ means that all discovery shall have been conducted so that all 2 depositions have been taken and any disputes relative to discovery shall have been resolved by 3 appropriate order if necessary and, where discovery has been ordered, the order has been 4 complied with.” (Id.) In this regard, the parties’ discovery dispute is untimely. See Rodriguez v. 5 Beard, No. 2:14-cv-1049 MCE KJN P, 2016 WL 6393755, at *2 (E.D. Cal. Oct. 28, 2016) (“the 6 undersigned finds that Federal Rule of Civil Procedure 45 subpoenas constitute pretrial discovery 7 that must be served within the specified discovery period”); Dreyer v. GACS Inc., 204 F.R.D. 8 120, 122 (N.D. Ind. 2001) (“Most courts hold that a subpoena seeking documents from a third- 9 party under Rule 45(a)(1)(C) is a discovery device and therefore subject to a scheduling order’s 10 general discovery deadlines.”); Alper v. U.S., 190 F.R.D. 281, 283 (D. Mass. 2000) (“Even were 11 the court to assume that Rule 45 applies to Dr. Becker, the subpoena at issue clearly constitutes 12 ‘discovery’ within the meaning of Rules 26 and 34 and, as a result, comes up against the court’s 13 discovery schedule.”); Rice v. U.S., 164 F.R.D. 556, 557 (N.D. Okl. 1995) (“inclusion of 14 references to Rule 45 within Rules 26 and 34 is a clear indication that procuring documents from 15 non-parties can constitute discovery”). 16 Accordingly, IT IS HEREBY ORDERED that defendants’ February 18, 2021 motion to 17 quash (ECF No. 57) is denied without prejudice and the March 12, 2021 hearing is vacated. 18 DATED: March 8, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 DLB:6 DB\orders\orders.civil\Soto0910.disc.untimely.ord 28