United States District Court, E.D. Louisiana
SANTOS HERNANDEZ GOMEZ AND MARIA FELIX LOPEZ ESPINOSA ON BEHALF OF THEIR MINOR SON “YHL”
SHERIFF NEWELL NORMAND, ET AL
ORDER AND REASONS
WELLS ROBY UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Quash Subpoena Duces Tecum
(R. Doc. 15) filed by the Defendant Sheriff Newell Normand
(“Defendant”) seeking on order of the Court
quashing a subpoena issued to the Defendant by the
Plaintiffs. The motion is not opposed. The motion was
submitted on July 5, 2017 and heard without oral argument.
For the following reasons, the motion to quash is GRANTED.
action was filed in the District Court on December 12, 2016
asserting claims under 42 U.S.C. §§ 1983, 1988 by
Plaintiffs Santos Hernandez Gomez and Maria Felix Lopez
Espinosa (“Plaintiffs”) on behalf of their minor
son “YHL.” The Plaintiffs have asserted a number
of claims against the Defendant and Defendant Sergeant Julio
Alvarado arising from the alleged excessive force used
against YHL on December 10, 2015 when YHL and a friend were
stopped after pulling into a parking lot behind a home on
Veterans Memorial Boulevard in Metairie, Louisiana.
time, the Defendant has filed a motion to quash a subpoena
duces tecum issued to him. R. Doc. 15. The Defendant
argues that a subpoena issued pursuant to Federal Rule of
Civil Procedure 45 is an improper discovery tactic that seeks
to circumvent proper discovery between parities conducted
pursuant Federal Rule of Civil Procedure 34.
Standard of Review
Rule of Civil Procedure 45(d)(3) governs the quashing or
modifying of subpoenas. The Court 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). The
Court may also modify or quash a subpoena that requires the
disclosure of a trade secret or an unretained expert's
opinion that does not describe specific occurrences in
dispute and results from that expert's study that was not
requested by a party. Fed.R.Civ.P. 45(d)(3)(B).
time, the Defendant has filed a motion to quash the subpoena
duces tecum issued to him because it is an improper
method to obtain discovery from a party to a litigation. R.
Doc. 15. The Defendant argues that the Plaintiffs cannot use
Rule 45 as a means to circumvent the response times allowed
under Federal Rule of Civil Procedure 34 or other procedural
protections. R. Doc. 15-1, p. 3.
under the wording of Federal Rule of Civil Procedure 45,
subpoenas may be served upon both party and non-parties.
Petit v. Heebe, No. 15-3084, 2016 WL 1089351, at *2
(E.D. La. Mar. 21, 2016). And, in some instances, the use of
a Rule 45 subpoena may be appropriate in commanding the
performance of a party, such as commanding a party to appear
for a trial, hearing, or deposition. Fed.R.Civ.P.
45(c)(1)(B)(i). However, the Court in this District and
others in this Circuit have disallowed the improper use of a
Rule 45 subpoena to obtain information or documents more
properly discovered under Federal Rule of Civil Procedure 33
or 34. See Trotta v. Cajun Conti LLC, No. 15-1186,
2016 WL 6473239, at *1 (E.D. La. Nov. 2, 2016) (collecting
authorities) (“As I and others have previously held,
plaintiff's use of a Rule 45 subpoena duces
tecum instead of Rule 34 requests for production must be
viewed as an attempt to circumvent the time requirements - 30
days to respond - and other orderly procedures, both for
objections to such requests and for production of materials,
between parties contemplated by Fed.R.Civ.P. 34.”);
Front-Line Promotions & Mktg., Inc. v. Mayweather
Promotions, No. 08-3208, 2009 WL 928568, at *5 (E.D. La.
Apr. 2, 2009) (“[P]ursuant to Federal Rule of Civil
Procedure 45, a subpoena is an improper mechanism for seeking
discovery from a party to the litigation.”);
Hamilton v. Ochsner Health Sys., No. 12-1398, 2012
WL 6725609, at *3 (E.D. La. Dec. 27, 2012) (Brown, J.);
Powell v. United States, No. 09-1873, 2009 WL
5184338, at *1 (E.D. La. Dec. 22, 2009) (Vance, J.);
Thomas v. IEM, Inc., Civ. A. No. 06-886, 2008 WL
695230, at *2 (M.D. La. Mar. 12, 2008) (“Rule 45
subpoenas, although not technically precluded by the language
of Rule 45 from being served upon parties to litigation, are
generally used to obtain documents from non-parties and are
‘clearly not meant to provide an end-run around the
regular discovery process under Rules 26 and
there is a certain logic to enforcing this distinction.
First, the references in Rule 34 to parties and Rule 45 to
non-parties appears to suggest that Rule 34 is the proper
tool for discovery between parities. See Hasbro, Inc. v.
Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996)
(“Rule 45, as well as the advisory committee notes, are
replete with references to non-parties. In fact, the notes to
the 1991 amendments presume the Rule's exclusive
applicability to non-parties with respect to discovery.
Indeed, Rule 34, which unquestionably applies only to
parties, illuminates the scope of Rule 45 when it directs
that ‘[a] person not a party to the action may be
compelled to produce documents and things or to submit to an
inspection as provided in Rule 45.' Fed.R.Civ.P.
34(c).”). Second, the discovery rules under Rule 34
provides more expansive time periods to respond to or object
to discovery request. Fed.R.Civ.P. 34(a)(2)(A). Finally, the
discovery procedures have certain safeguards to ensuring
proper discovery not found under Rule 45, including
specificity of objections under Federal Rule of Civil
Procedure 34(a)(2)(C) and an obligation to confer about
discovery responses prior to the filing of a motion to compel
under Rule 37(a).
for the above reasons, the Court grants the motion to quash.
Nonetheless, the Court notes that upon reviewing the request
discovery that it has some concerns. When the Plaintiffs
convert the current discovery requested into a Rule 34
request, the Plaintiffs should review their request to be
sure that it does not seek information that may be protected
or require an in camera inspection by the Court as
well as ensure that its requests are not overly broad.