United States District Court, E.D. Louisiana
DANIEL E. BECNEL, JR. ET AL.
CAMILO K. SALAS, III ET AL.
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
a discovery dispute between Louisiana lawyers in a case
involving a real estate development in Alys Beach, Florida.
Plaintiffs (hereinafter collectively “Becnel”)
issued subpoenas duces tecum under the authority of the
United States District Court for the Northern District of
Florida, Pensacola Division (hereinafter “the Florida
court”), to defendants' attorney Camilo K. Salas,
III, and his law firm, Salas & Co. LC (hereinafter
collectively “Salas”). Compliance with the
subpoenas' demands for document production and deposition
testimony was to occur in the Eastern District of Louisiana,
where all parties reside. Neither the document production nor
the deposition occurred. The subpoenas and this motion to
compel nonparty document production and a deposition
appearance, E.D. La. Record Doc. No. 3, seek discovery in
connection with underlying litigation in the Florida court
entitled “EBSCO Gulf Coast Development, Inc. v. Camilo
K. Salas, III, as Trustee etc. et al., ” No.
3:15cv586/MCR/EMT (hereinafter “the Florida
initial matter, I note that both the motion itself and the
discovery it seeks to compel appear to be untimely under the
Florida court's scheduling and case management orders. A
discovery deadline of December 30, 2017, is currently in
place. N.D. Fla. Record Doc. No. 110. This discovery deadline
has been extended from earlier deadlines previously set.
Becnel recently filed a motion to extend the discovery
deadline yet again, N.D. Fla. Record Doc. No. 140, but it is
opposed by Salas, N.D. Fla. Record Doc. No. 142, and no
ruling on the motion has been issued as of this writing. In
addition, counsel advised at oral argument that dispositive
motions have already been filed and are pending and that a
motion to extend the deadline to file other dispositive
motions has just been filed. N.D. Fla. Record Doc. No.153.
complicate matters, it appears that the motion to compel
filed in this court may not have been timely in compliance
with the Florida court's case management orders, which
required that “no motions to compel discovery may be
filed after the close of discovery.” N.D. Fla. Record
Doc. No. 37 at p. 8. The motion to compel was submitted to
the clerk of this court on December 29, 2017, the day before
the deadline date set by the presiding Florida district
judge. E.D. La. Record Doc. No. 1. However, the clerk of this
court rejected it as “filed in error” because the
required filing fee was not paid and the motion was not
accompanied by a notice of submission as required by this
court's Local Rule 7.2. Becnel paid the filing fee six
(6) days later on January 4, 2018, and then refiled the
motion to compel with the required notice another four days
later on January 8, 2018, E.D. La. Record Doc. No. 3, nine
(9) days after the Florida court's deadline. Whether this
kind of motion was timely filed under these odd circumstances
in compliance with the Florida court's case management
orders is a matter appropriately determined by the Florida
timeliness questions alone justify denying the motion. They
have made the temptation great to transfer this motion to the
Florida court pursuant to Fed.R.Civ.P. 45(f), because the
interests of the Florida court in the maintenance and
enforcement of its own extensive case management orders and
authority appear to outweigh the interests of the parties in
local resolution of this motion. See Judicial Watch, Inc.
v. Valle Del Sol, Inc., 307 F.R.D. 30, 34 (D.D.C. 2014))
(citing Fed. Home Loan Mortgage Corp. v. Deloitte &
Touche LLP, 309 F.R.D. 41, 44 (D.D.C. 2015) (finding
exceptional circumstances where transfer would avoid
interference with a “time-sensitive discovery
schedule” set in underlying action); In re Caesars
Entm't Operating Co., 558 B.R. 156, 159 (W.D. Pa.
2016) (court transferred motion to compel in the interest of
efficiency, uniformity and orderliness of the discovery
process and deadlines already established by the issuing
court). However, I also find that the motion should be denied
because the discovery that is the subject of the motion is
prohibited under the applicable Rules.
the oral deposition that is part of the subject discovery,
subpoenas duces tecum “‘are discovery devices
which, although governed in the first instance by Rule 45,
are also subject to the parameters established by Rule
26.'” Garvin v. S. States Ins. Exchg. Co.,
No. 1:04cv73, 2007 WL 2463282, at *5 n.3 (N.D. W.Va. Aug. 28,
2007) (quoting In re Application of Time, Inc., 1999
WL 804090, at *7 (E.D. La. Oct. 6, 1999), aff'd,
209 F.3d 719, 2000 WL 283199 (5th Cir. 2000)); see also
Williamson v. Horizon Lines LLC, 248 F.R.D. 79, 83 (D.
Me. 2008) (“‘parties should not be allowed to
employ a subpoena after a discovery deadline to obtain
materials from third parties that could have been produced
before discovery'”) (quoting 9A C. Wright, A.
Miller, M. Kane, R. Marcus, A. Spencer, A. Steinmann,
Federal Practice and Procedure § 2452 (3d ed.
2018) (available on Westlaw) (hereinafter “Wright &
Miller”)); Nicholas v. Wyndham Int'l,
Inc., No. 2001/147-M/R, 2003 WL 23198847, at *1-2
(D.V.I. Oct. 1, 2003) (the “clear majority position
[is] that use of Rule 45 subpoenas constitutes discovery and
is thus governed by the temporal restraints of the previous
case Scheduling Orders”); Mortg. Info. Servs. v.
Kitchens, 210 F.R.D. 562, 566-67 (W.D. N.C. 2002)
(“a Rule 45 subpoena does in fact constitute
discovery”); accord Martin v. Oakland County,
No. 2:06-CV-12602, 2008 WL 4647863, at *1 (E.D. Mich. Oct.
21, 2008); Fabery v. Mid-S. Ob-GYN, No. 06-2136,
2000 WL 35641544, at *1 (W.D. Tenn. May 15, 2000).
on discovery include those set out in Fed.R.Civ.P.
26(b)(2)(C) and 30(a). Fed.R.Civ.P. 26(b)(2)(C) states in
pertinent part that the court must limit the frequency or
extent of discovery otherwise allowed by the Rules if it
determines that “(i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information
by discovery in the action.” Fed.R.Civ.P.
26(b)(2)(C)(i) and (ii). Fed.R.Civ.P. 30(a)(2)(A)(ii)
requires that a party must obtain leave of court to take a
deposition if the parties have not stipulated to the
deposition and “the deponent has already been deposed
in the case.” Leave to redepose a witness must be
granted only “to the extent consistent with Rule
26(b)(1) and (2).” Fed.R.Civ.P. 30(a)(2).
the oral deposition that is the subject of Becnel's
motion, Salas has already been deposed once. Becnel's
complaint about the deposition appears to be that Salas was
deposed only in his capacity as trustee of his children's
trust. In my view, Salas is Salas no matter what hat he is
wearing. If Salas was so imprudent as to refuse to answer
deposition questions based on the narrow view that he was
testifying only in his capacity as trustee and not as
himself, that should have been brought to the attention of
the Florida court by motion to compel an answer to a
deposition question. Without leave of the Florida court under
Fed.R.Civ.P. 30(a)(2)(A)(ii), Salas should not be redeposed,
especially when “ample opportunity” to depose him
was already provided in the Florida lawsuit and doing so
again would be “unreasonably cumulative or
duplicative.” Fed.R.Civ.P. 26(b)(2)(C)(i) and (ii).
the subpoena duces tecum to Salas individually and to his law
firm, Becnel's complaint again appears to be that
responses to similar Rule 34 requests for production in the
Florida lawsuit were that “Salas did not have this
information, at least in his capacity as Trustee.” E.D.
La. Record Doc. No. 3-1 at p. 3. Salas's obligation in
the Florida lawsuit is to produce all non-privileged
responsive materials that are within his possession, custody
or control. Fed. R. Civ. P 34(a)(1). “[A] party cannot
be required to permit inspection of documents or things that
it does not have . . . . A document or thing is not in the
possession, custody, or control of a party if it does not
exist. Production cannot be required of a document no longer
in existence nor of one yet to be prepared.” 8B Wright
& Miller § 2210 and cases cited at nn. 16, 26 and
27, including Soetaert v. Kansas City Coca Cola Bottling
Co., 16 F.R.D. 1, 2 (W.D. Mo. 1954) (“Rule 34
cannot be used to require the adverse party to prepare, or
cause to be prepared, a writing to be produced for
inspection, but can be used only to require the production of
things in existence.”).
“‘control' . . . [extends to materials which]
the party to whom the request is made has the legal right
to obtain . . ., even though in fact it has no
copy.” 8B Wright & Miller § 2210 (citing
U.S. Int'l Trade Comm'n v. ASAT, Inc., 411
F.3d 245 (D.C. Cir. 2005); Searock v. Stripling, 736
F.2d 650, 653 (11th Cir. 1984); Costa v. Kerzner
Int'l Resorts, Inc., 277 F.R.D. 468 (S.D. Fla.
2011); Colon v. Blades, 268 F.R.D. 129 (D.P.R.
2010); In re NTL, Inc. Secs. Litig., 244 F.R.D. 179
(S.D.N.Y. 2007); Mt. Hawley Ins. Co. v. Felman Prod.,
Inc., 269 F.R.D. 609 (S.D. W.Va. 2010)) (emphasis
added). “Control” includes the legal right to
obtain the materials on demand, with “focus on
practical ability to obtain them.” Id. text at
nn. 4-8, 12 and cases cited therein.
Civ. P. 34(a)(1) has been construed to include materials in
possession, custody or control of the party's agent, such
as an attorney.
34's definition of possession, custody, or control,
includes more than actual possession or control of
[documents]; it also contemplates a party's legal right
or practical ability to obtain [documents] from a [non-party]
to the action. Moreover, [a] party must make a reasonable
search of all sources reasonably likely to contain responsive
documents. The term “all sources” includes
plaintiff's attorney, expert, insurance company,
accountant, spouse, agent, etc. Typically, what must be shown
to establish control over documents in the possession of a
non-party is that there is a relationship, either because of
some affiliation, employment or statute, such that a party is
able to command release of certain documents by the non-party
person or entity in actual possession.
v. St. Paul Fire & Marine Ins. Co., No.
EP-14-CV-305-KC, 2015 WL 7709433, at *5 (W.D. Tex. Sept. 25,
2015) (quotations omitted) (citing S. Filter Media, LLC
v. Halter, No. 13-116-JJB-RLB, 2014 WL 4278788, at *5
(M.D. La. Aug. 29, 2014); Luv N' Care Ltd. v. Groupo
Rimar, No. 14-2491, 2015 WL 3756308, at *2 (W.D. La.
June 15, 2015); White v. State Farm Mut. ...