United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion to Compel (R. Doc. 61)
filed on November 17, 2017. Plaintiff seeks an order
requiring the Louisiana Department of Education
(“Department”) to comply with a subpoena.
Defendant has filed an opposition. (R. Doc. 72).
Johnson (“Plaintiff”) is proceeding pro
se and in forma pauperis. (R. Doc. 3).
Plaintiff brings this employment discrimination against
Plaintiff's former employer, East Baton Rouge School
System (“Defendant”), pursuant to the Americans
with Disabilities Act, Title VII of the Civil Rights Act of
1964, and various Louisiana state statutes. (R. Docs 1, 40).
November 2, 2017, Plaintiff served a subpoena on the
Department seeking the production of “All SPED Glasgow
Middle School files (2008-2015), ” as well as all
communications concerning these files and Plaintiff. (R. Doc.
61-1 at 44-45).
November 7, 2017, the Department produced certain
“CallTrack Request Forms” and ten emails between
Plaintiff and the Department. (R. Doc. 61-1 at 43; R. Doc.
61-1 at 46-75).
represents that on November 15, 2017, she served an
“amended” subpoena on the Department. (R. Doc. 61
at 3). Through this subpoena, Plaintiff sought student
folders with missing files, communications between the
Department and parents of students regarding the missing
files, and communications between the Department and
Defendant concerning missing files. (R. Doc. 61-1 at 76). The
Department responded on November 16, 2017, asserting that it
did not have any responsive documents. (R. Doc. 61-1 at 77).
now seeks an order compelling the Department to produce the
documents sought in response to the “amended”
provides that “[a]t any time, on notice to the
commanded person, the serving party may move the court
for the district where compliance is required for an order
compelling production or inspection.” Fed.R.Civ.P.
45(d)(2)(B)(i) (emphasis added). A court may not order
compliance with a subpoena under Rule 45 unless the
subpoenaed party and the parties to the action have first
been provided notice of the motion to compel. See,
e.g., Shaw Grp., Inc. v. Zurich Am. Ins.
Co., No. 12-257, 2014 WL 68604, at *1 (M.D. La. Jan. 8,
2014), reconsideration denied, 2014 WL 204244 (M.D.
La. Jan. 17, 2014). Here, the record does not indicate that
the non-party Louisiana Department of Education has been
served with a copy of Plaintiff's Motion to Compel. This
Court will deny any future motion should the motion not
indicate that notice was served on the non-party.
addition, Rule 45(a)(4) provides that “[i]f the
subpoena commands the production of documents . . ., then
before it is served on the person to whom it is directed, a
notice and a copy of the subpoena must be served on each
party.” Fed.R.Civ.P. 45(a)(4). The “purpose of
such notice is to afford other parties an opportunity to
object to the production or inspection.”
Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp.
Inc., No. 97-3012, 1998 WL 186705, at *7 (E.D. La. April
17, 1998) (citing prior version at Fed.R.Civ.P. 45(b)(1)).
Failure to serve a copy of a subpoena upon an opposing party
or to give notice of its content deprives that party of any
meaningful right to object or to otherwise protect its
represents that Plaintiff did not provide “a notice and
a copy of the subpoena” prior to its service on the
Department of the November 2, 2017 subpoena, and merely sent
to defense counsel “a picture of the first page of the
subpoena that she served on November 15, 2017.” (R.
Doc. 72 at 2 n.2). It is unclear from the foregoing
representation whether Plaintiff provided a copy of the
“amended” subpoena prior to service of the
subpoena on the Department. Any motion seeking relief
regarding a third party subpoena must demonstrate that the
requirements of Rule 45(a)(4) have been satisfied. See
Hall v. Louisiana, No. 12-657, 2014 WL 1652791, at *12
(M.D. La. Apr. 23, 2014) (“A party's failure to
serve a copy of a subpoena on his opponent, as required by
Rule 45(a)(4) has been held to substantiate a decision to
quash the subpoena.”) (punctuation and citations
to the extent the instant motion seeks any specific relief
from the Defendant, that request is likewise inappropriate.
Plaintiff's subpoena was served on a non-party and there
is no legal basis for compelling the Defendant to respond to
a subpoena issued to the Department, a separate entity that
is not a party to this suit.
on the foregoing, IT IS ORDERED that the
Plaintiff's Motion to Compel (R. Doc. 61) is