Opinion
Case No. 2:11-cv-00250-GMN-CWH
01-09-2013
NELSON LLAVATA, Plaintiff, v. COLE MORROW, et al., Defendants.
ORDER
This matter is before the Court on Plaintiff's Motion for Subpoena Duces Tecum (#80), filed November 14, 2012.
Plaintiff requests that the Court authorize issuance of a Rule 45 subpoena duces tecum for purposes of obtaining his medical records. Plaintiff is proceeding in forma pauperis. The authorization of a subpoena duces tecum requested by an in forma pauperis plaintiff is subject to limitations. Alexander v. California Dep't of Corrections, 2010 WL 5114931 (E.D. Cal). Because personal service of a subpoena duces tecum is required under Rule 45(b), "[d]irecting the Marshal's Office to expend its resources personally serving a subpoena is not taken lightly by the court." See Frazier v. Redding Police Dep't, 2012 WL 5868573 (E.D. Cal.) (citing Austin v. Winett, 2008 WL 5213414 (E.D. Cal.)). "Limitations include the relevance of the information sought as well as the burden and expense to the non-party in providing the requested information." Id. (citations omitted). Normally, a motion for issuance of subpoena duces tecum should clearly identify the documents sought and show that the records are only obtainable through the identified third-party. Id. Non-parties are "entitled to have the benefit of [the] Court's vigilance" in ensuring the non-party does not suffer excessive or unusual expenses in complying with a subpoena duces tecum. Id. (citing Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991)).
Shortly after Plaintiff filed his motion, Defendants filed a motion for summary judgment. See Defs' Mot. (#83). Defendants also filed a motion for leave to file Plaintiff's medical records under seal as an exhibit to the summary judgment motion in order to ensure confidentiality and prevent the entry of Plaintiff's medical records into the public record. (#84). Defendants also represented that they would send a copy of the records to the facility where Plaintiff is in custody "with instructions to maintain the records in a safe and secure place outside of Plaintiff's immediate possession and to permit Plaintiff to review the exhibit by appointment pursuant to applicable administrative procedures." Id. at 2:5-7. Consequently, it appears that Plaintiff's request for a Rule 45 subpoena is moot as his medical records are available for his review at the facility where he is currently housed. Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for Subpoena Duces Tecum (#80) is denied as moot.
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C.W. Hoffman, Jr.
United States Magistrate Judge