Opinion
CV-16-0313
06-06-2019
HEARTS WITH HAITI, INC, and MICHAEL GEILENFELD, Plaintiffs v. PAUL KENDRICK, Defendant
ORDER
Nancy Mills Justice, Superior Court
Before the court is plaintiffs' motion for protective order. For the following reasons, the motion is moot.
Procedural Background
On April 10, 2019, defendant's attorney filed an application for civil out-of-state subpoena. (Pls.' Mot. for Protective Order Ex. A.) On April 12, 2019, defendant's attorneys enclosed four third-party Maine subpoenas dated April 8, 2019 in an e-mail to plaintiffs' attorneys. (Pls.' Mot. for Protective Order Ex. E.) Defendants' attorneys stated that defendant intended to serve subpoenas to produce documents on, among other entities, Iowa State Bank by process in Iowa. (Pls.' Mot. for Protective Order Ex. E.) The date of the production was May 6, 2109. (Pls,' Mot. for Protective Order Ex. F.) Defendant's attorneys did not provide the court or docket number. (Pls.' Mot. for Protective Order Ex. E.)
On April 15, 2019, the subpoena was served on Iowa State Bank. (Def.'s Ex.B.) On April 16, 2019, defendant's attorney sent plaintiffs' attorney receipt of service, which included the docket number for the Iowa District Court, Kossuth County. (Def.'s Ex. B.) On April 17, 2019, Iowa State Bank produced the subpoenaed documents to defendant's attorneys. (Pls.' Reply Ex. I, ¶ 7.)
On May 6, 2019, plaintiffs filed a motion to quash non-party foreign subpoena issued to Iowa State Bank. (Pls.' Reply Ex. I.) On May 13, 2019, the Iowa District Court sustained plaintiff's Motion to Quash. (Pls.' Reply Ex. H.) The court ordered that "[a]ll materials and documents produce[d] to Defendant or Defendant's counsel in response to the subpoena referenced in Plaintiff's motion shall immediately be destroyed with any copies of such materials and documents to also be destroyed." (Pls.' Reply Ex. H.) The court also ordered that "Defendant and Defendant's counsel are barred from the use of any further subpoenas without first providing proper and timely notice to Plaintiffs attorney of record." (Pls.' Reply Ex. H.) On May 14, 2019, defendant moved to set aside the order quashing subpoena, (Pls.' Reply Ex. E) and on May 23, 2019, the Iowa District Court ordered defendant's motion overruled. (Attachment to Letter from Devin Deane, Esq, dated May 23, 2019.)
Discussion
Rule 45 provides that a subpoena for a commanded production of documents "shall be served on each party in the manner prescribed by Rule 5(b) at least 14 days prior to the response date set forth in the subpoena." M.R. Civ. P. 45(b) (2018). Rule 5 requires service "upon each of the parties no later than the date on which the paper is filed with the court." M.R. Civ. P. 5(a) (2018); see also Phillips v. Johnson. 2003 ME 127, ¶ 24, 834 A, 2d 938 ("technical noncompliance with M.R. Civ. P. 5(b), which requires service on a represented party's attorney, is harmless error when [a party] has timely actual notice and suffers no prejudice.").
The Iowa District Court ordered that all materials and documents and any copies produced to defendant or defendant's counsel in response to the subpoena must be immediately destroyed, This court will give full faith and credit to the order of the Iowa District Court. 14 M.R.S. §§ 8001-8008 (2018). The order may be enforced once the authenticated order is filed pursuant to the Uniform Enforcement of Foreign Judgments Act. 14 M.R.S. § 8003; see Reliable Copy Serv. v. Liberty. 2011 ME 127, ¶ 6, 32 A, 3d 1041. The record does not reflect an appeal or stay. 14 M.R.S, § 2005, Plaintiff's motion for protective order is moot.
The clerk is directed to incorporate this order into the docket by reference. M.R. Civ. P.79(a).