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
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
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
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.
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