Opinion
CV-16-366
04-05-2018
PHU LE and TUANH NGUYEN, Plaintiffs v. AVERILL CONSTRUCTION LLC, a/k/a JEFF AVERILL, and JEFF AVERILL, a/k/a JJ AVERILL CONSTRUCTION, Defendants
ORDER
NANCY MILLS JUSTICE
Before the court is plaintiffs' motion to quash a subpoena served on March 23, 2018. For the following reasons, the motion is granted. Background
The complaint was filed on September 21, 2016. Defendants were served on September 26, 2016. A response was filed on November 4, 2016, Pursuant to the scheduling order, the discovery deadline was September 6, 2017. Defendants were sanctioned on August 10, 2017 because they failed to respond to discovery requests. Plaintiffs' ex-parte motion for attachment was granted on August 24, 2017.
Defendants' attorney entered his appearance on October 20, 2017. His request to continue the trial from the November-December trial list was granted on November 11, 2017. No motion to extend the discovery deadline was filed.
Defendants' exhibit lists were filed on February 23, 2018 and March 5, 2018. The listed exhibits include ail documents exchanged in discovery; all documents attached to the pleadings; all contract documents between the parties; all documents identified on plaintiffs' exhibit list; codes, ordinances, receipts, photographs, and invoices; and occupancy permits.
A trial management conference was held on March 15, 2018. The attorneys agreed and the court ordered that discovery was complete. The court ordered that defendants were precluded from offering evidence that was the subject of unanswered discovery requests. Defendants' attorney's intention to subpoena the Town of Falmouth's witness and his entire file was noted in the order. Plaintiffs' attorney did not object to that intended action. Defendants' attorney did not inform plaintiffs' attorney or the court that he intended to serve a subpoena duces tecum on plaintiffs. In the trial management conference order, trial was scheduled for April 9, 2018. No party objected to the trial management order. (Order filed Mar. 16, 2018.)
Plaintiffs' attorney accepted service of defendants' subpoena on March 31, 2018, which commanded plaintiffs to produce for inspection and copying by April 2, 2018 the following: all documents and records associated with the construction project at 80 Route One, Falmouth, Maine, the subject of the lawsuit, including but not limited to, all contracts, agreements, estimates, receipts, photographs, recordings, charts, graphs, checks, cancelled checks, statement, and any and all documents pertaining to the project. (Ex. A attached to Subpoena dated March 23, 2018.)
Discussion
"There is a relationship between Rule 26 and rule 45." Williamson v. Horizon Lines LLC, 248 F.R.D. 79, 83 (D. Me. 2008) (discussing Fed.R.Civ.P. 26 & 45). The use of subpoenas constitutes discovery and is governed by time deadlines in scheduling orders. See id.; see also Mortg. Info. Servs. v. Kitchens. 210 F.R.D. 562, 566-67 (W.D. N.C. 2002) (discovery of documents from a party is not accomplished pursuant to rule 45); Alper v. United States. 190 F.R.D. 281, 283 (D. Mass. 2000) (same).
The entry is
Plaintiffs' Motion to Quash Subpoena is GRANTED.