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Sines v. Kessler

United States District Court, E.D. Louisiana

May 16, 2018

ELIZABETH SINES ET AL.
v.
JASON KESSLER ET AL.

         SECTION “I” (2)

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         This matter arises from a civil action pending in the United States District Court for the Western District of Virginia concerning the violent, racially and ethnically charged disturbances that occurred in Charlottesville, Virginia, during the summer of 2017. Plaintiffs are individuals who allege that their constitutional rights were violated and that they were physically and/or emotionally injured when defendants and others engaged in a conspiracy and then conducted a planned and coordinated series of violent and threatening demonstrations in Charlottesville, financed by solicitations and/or donations and resulting in numerous injuries and three deaths. Defendants are a collection of individuals and organizations, all of whom allegedly espouse and act upon white nationalist/supremacist, Neo-Nazi and racist views.

         Seven causes of action are asserted. Two are federal claims, including conspiracy to violate plaintiffs' constitutional rights in violation of 42 U.S.C. § 1982 and failure to prevent those violations by informing lawful authorities in violation of 42 U.S.C. §1986. The remaining causes of action are Virginia state law and statutory claims, including civil conspiracy; negligence per se through acts of terrorism and violence; racial, religious or ethnic harassment; assault and battery; and intentional infliction of emotional distress. Record Doc. No. 175 (First Amended Complaint at ¶¶ 336-70).

         On January 24, 2018, the clerk of the United States District Court for the Western District of Virginia issued a subpoena duces tecum, which was served upon David Duke, a resident of Mandeville, Louisiana, on January 26, 2018. Compliance through document and ESI (“electronically stored information”) production was required to occur in this judicial district on February 26, 2018. Record Doc. No. 12-3 at p. 2 (Affidavit of Service); Record Doc. No. 1-2 at p. 6 (Subpoena). Although Duke is not a named defendant in the Western Virginia case, he is specifically identified in plaintiffs' first amended complaint as a co-conspirator with the named defendants who allegedly participated himself in the coordination, planning, fund-raising for and execution of defendants' activities in Charlottesville that are the basis of the lawsuit. See, e.g., Record Doc. No. 175 (First Amended Complaint at ¶¶ 66, 128, 187, 317).

         On February 23, 2018, 28 days after he was served with the subpoena and three days before the compliance date, Record Doc. No. 1-2 at p. 43 (Certificate of Service of Movant's Objections), Record Doc. No. 238 in No. 17-72 (W.D. Va.) (Certificate of Service of W.D. Va. Motion to Quash), Duke served[1] on plaintiff's counsel both objections to the subpoena under Fed.R.Civ.P. 45(d)(2)(B) and a motion to quash under Fed.R.Civ.P. 45(d)(3), which were physically filed in the Western District of Virginia record on the compliance date, February 26, 2018. Record Doc. Nos. 235, 237 in No. 17-72 (W.D. Va.). The court in Virginia denied the motion to quash, but only on grounds that it had been filed in the wrong court. The denial was without prejudice to re-filing the motion to quash here. Record Doc. No. 297 in No. 17-72 (W.D. Va.).

         In light of that ruling and 12 days after it issued, on April 18, 2018, Duke filed the instant motion to quash the subpoena in this court. Record Doc. No. 1. Plaintiffs filed a timely opposition memorandum. Record Doc. No. 12. Considering the motion papers, the public record of the case pending in the Western District of Virginia and the applicable law outlined below, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows.

         ANALYSIS

         (1) General Legal Standards

         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 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”); 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 Cnty., 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). Thus, both Fed.R.Civ.P. 45 and 26(b) apply to the instant motion.

         Fed. R. Civ. P. 45(d)(1) requires that the party issuing a subpoena to a non-party “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply . . . or (iv) subjects a person to undue burden.”

         A person - like Duke - who receives a subpoena and moves to quash or modify it “has the burden of proof to demonstrate that compliance would impose undue burden or expense. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (emphasis added). Proof actually establishing the extent of the alleged undue burden is required to obtain relief, not mere unsupported generalizations, conclusory statements or assertions. “Generally, modification of a subpoena is preferable to quashing it outright.” Id. In determining whether a particular subpoena presents an undue burden, the court must consider “(1) relevance of the information requested; (2) the need of the party for the [subpoenaed materials]; (3) the breadth of the . . . request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested [materials]; and (6) the burden imposed. Further, if the person to whom the . . . request is made is a non-party, the court may also consider the expense and inconvenience to the non-party.” Id.

         As to Rule 26, the scope of permissible discovery is established in Fed.R.Civ.P. 26(b)(1) and extends only to that which is both relevant to claims and defenses in th case and within the Rule's proportionality limits. Relevance focuses on the claims and defenses in the case, not its general subject matter. Proportionality analysis involves consideration of various factors, including the importance of the issues at stake, the amount in controversy, the parties' relative access to information, the parties' resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit. In addition, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules . . . if it determines that (i) the discovery sought is unreasonably cumulative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; [or] (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) (emphasis added).

         (2) Timeliness of ...


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