The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge
Before the Court is the defendant's motion, made pursuant to Rule 45 of the Federal Rules of Civil Procedure, seeking "an order of contempt, or alternatively, an order scheduling a contempt hearing as a result of Steven Schneider's ["Schneider"] failure to comply with the terms of the trial subpoena served upon him by [the defendant] on May 11, 2011." The plaintiffs oppose the motion.
On May 11, 2011, the defendant served Schneider, a non-party to this action, with a subpoena to appear and testify at the trial of this action and to bring with him the following documents, electronically stored information, or objects:
1) Your complete original file relating to your work and/or investigation of the relieving platform located at 1000 Zerega Avenue, (including the collapse thereof), as well as any buildings or structures thereon, or adjacent thereto, and any damage sustained by any such buildings or structures;
2) All original records maintained, kept, examined and/or prepared, at any time, by you, with respect to your investigation and/or work performed in relation to the relieving platform located at 1000 Zerega Avenue, including, the collapse thereof, as well as any buildings or structures thereon or adjacent thereto and any damage sustained by any such building or structure;
3) All original drawings, sketches, diagrams, models, exemplars and/or other physical representations, computer files or diagrams relating to the relieving platform located as 1000 Zerega Avenue, including, the collapse thereof, as well as any buildings or structures thereon or adjacent thereto and any damage sustained by any such buildings or structure[.]
The defendant contends that Schneider did not object to the May 11, 2011 subpoena. On May 18, 2011, Schneider appeared to testify at the trial. He stated that, except for his 2005 report, which was received in evidence in this action previously, he had no documents in response to the subpoena. During the trial, the defendant inquired of Schneider:
Q. You didn't take out a chart to determine the width of the creek in the area where the allision allegedly occurred, is that correct?
A. I looked at the chart, yes.
Q. You just said - -A. I didn't measure the width of the creek because it's kind of irrelevant, excuse me.
Q. Did you take out a chart and plot the distance of the width of the creek in the area where the ...