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United States District Court, S.D. New York

January 20, 2004.

THOMAS A. REVANDER, Plaintiff, -against- GENE DENMAN, et al., Defendants

The opinion of the court was delivered by: RICHARD J. HOLWELL, District Judge

Memorandum Opinion and Order

The following Memorandum Opinion and Order addresses defendant Gene Denman's ("Defendant") request for the Court to "So Order" the Subpoenas Duces Tecum drafted by Defendant. Plaintiff Thomas Revander ("Plaintiff") opposes the request. For the following reasons, Defendant's request is denied.


  All discovery in this case was closed on November 28, 2003. On December 15, 2003, the parties filed proposed voir dire questions, jury instructions, and a joint pre-trial order. Trial is set to begin on January 21, 2004.

  By letter dated December 30, 2003, Defendant requested that this Court "So Order" three subpoenas duces tecum "so that they may be utilized for cross-examination purposes." The subpoenas were directed to three correctional facilities where plaintiff had been, or is presently, incarcerated. The subpoenas sought "any and all records regarding the incarceration of the Plaintiff.

  On January 5, 2004, Plaintiff faxed a letter to chambers opposing Defendant's request on the ground that discovery had been completed. Defendant then responded Page 2 with a letter arguing that the subpoenas were trial subpoenas, not discovery subpoenas, and thus should be allowed.

  The Court held a telephone conference on this matter on January 8, 2004. All parties were present as represented by counsel. After hearing argument, the Court gave the parties 24 hours to make additional submissions. Both parties made submissions within the 24-hour period.


  Trial subpoenas are appropriate in certain circumstances, such as securing an original document previously disclosed during discovery, or for purposes of memory recollection or trial preparation. See Bufkin v. Norfolk S. Corp., No. 1:00-CV-424, 2002 WL 32144317, at* 1 (N.D. Ind. Mar. 20, 2002). "However, when a [party] is aware of the existence of documents before the discovery cutoff date and issues discovery requests including subpoenas after the discovery deadline has passed, then the subpoenas and discovery requests should be denied." McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995).

  Defendant argues that (a) none of the reasons for quashing a subpoena pursuant to Fed.R.Civ.P. 45 are present here; (b) Plaintiff does not have standing to oppose the subpoenas; and (c) the subpoenas are offered for trial purposes, specfically cross examination, not for discovery.

  Plaintiff argues that (a) Defendant's request should be examined not only in the context of Rule 45, but also of Fed.R.Civ.P. 26 and 34; (b) the Court has discretion to deny a subpoena; and (c) Defendant's request is too broad to be a proper trial subpoena.

  The Court finds that Plaintiff has the better of the arguments. Although a party generally does not have standing to challenge a subpoena issued to a third-party witness Page 3 unless a personal privacy right or privilege is implicated, the Court, in the exercise of its discretion, may deny a subpoena request when it finds that there is no reason why the subpoena could not have been brought during the discovery period. See McNerney, 164 F.R.D. at 587.

  Moreover, Defendant's argument that the subpoenas are trial, as opposed to discovery, subpoenas is belied by their broad scope. Subpoenas calling for "any and all records" are exactly the kind of "shotgun" subpoenas that should not be issued on the eve of trial. See, e.g. Pitter v. Am Express Co., No 82 CIV 7451-CSH, 1984 WL 1272, at *6 (S.D.N.Y. Nov. 27, 1984) Indeed, "the court's policy of requiring parties to submit a pretrial order detailing those documents which it may use at trial is rendered nugatory if a trial subpoena may issue demanding documents not previously produced or identified " BASF Corp v. Old World Trading Co., No 86 C 5602, 1992 WL 24076, at *2 (N.D.Ill. Feb. 4, 1992)


  For the foregoing reasons, Defendant's request that the Court "So Order" the Subpoenas Duces Tecum is DENIED. Page 1


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