Trial Subpoena Served on a Party Must Be Limited to Documents and Things Previously Disclosed, and Cannot Be Used to End Run Discovery Deadlines Set by Court

From Hatcher v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010):

This matter is before the court for consideration of the motion of defendant Precoat Metals to quash a subpoena purportedly served in accord with the provisions of Rule 45, Federal Rules of Civil Procedure.... The subpoena seeks documents which, by their nature, are otherwise discoverable under Rule 34.... The defendant argues that the scheduling order required that discovery be commenced in order to be completed by December 31, 2010.... The defendant contends that the subpoena as filed requires the production of documents and in effect precludes the timely assertion of objections to the requests. The defendant avers that plaintiff has had six and one-half months in order to obtain the same information under Rule 34 or other provisions within the ambit of Rule 26 discovery and has not done so. The defendant asserts that the Rule 45 subpoena is an attempt to circumvent the requirements of Rule 34.

In general, a Rule 45 subpoena is a discovery vehicle to be used against non-parties to, among other things, obtain documents relevant to a pending lawsuit. F.R.Civ.P. 34(c). Rule 45 must be read in conjunction with Federal Rule of Civil Procedure 26 because the latter rule "clearly defines the scope of discovery for all discovery devices." 9 Wright & Miller, Federal Practice and Procedure; Civil 3rd § 2452 (3rd ed. 2008). A party may use a Rule 45 subpoena to obtain "discovery regarding any non-privilege matter that is relevant to any party's claim or defense." F.R.Civ.P. 26(b)(1). A non-party subject to a subpoena has 14 days from service to raise any objections. F.R.Civ.P. 45(c)(2)(B).

Parties are permitted to issue trial subpoena duces tecum to another party but only for the purposes of securing materials for memory refreshment, trial preparation or to ensure the availability at trial of original records previously disclosed in discovery. Puritan Investment Corporation v. ASLL Corp., 1997 U.S. Dist. LEXIS 19559, 1997 WL 793569 at 1 (E.D. Pa. 1997). See also Rice v. United States, 164 F.R.D. 556, 558 n.1 (N.D. Okla. 1995) (Rule 45 subpoena duces tecum cannot be used as a form of discovery to circumvent deadlines; however, a Rule 45 subpoena duces tecum may be employed to secure the production at trial of original documents previously disclosed by discovery.); see also Dees v. Hyundai Motor Manufacturing Alabama, LLC, 2008 U.S. Dist. LEXIS 23710, 2008 WL 821061 (M.D. Ala. 2008) (Subpoena seeking employment records properly considered as a discovery device and as such was untimely because it was served after the discovery deadline).

Editorial note: This limitation makes sense only when, as in Hatcher, the subpoenaing party was, or should have been, aware of the existence of the subpoenaed documents or things before the discovery cutoff date expired and issued the subpoena thereafter See Malmberg v. United States, 2010 U.S. Dist. LEXIS 28784 (N.D.N.Y Mar. 24, 2010).

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