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Monclova-Chavez v. McEachern

United States District Court, E.D. California
Dec 9, 2010
CASE NO. 1:08-cv-00076-AWI-SKO PC (E.D. Cal. Dec. 9, 2010)

Opinion

CASE NO. 1:08-cv-00076-AWI-SKO PC.

December 9, 2010


ORDER GRANTING DEFENDANT MILLER AND DEFENDANT WHITE'S MOTIONS FOR A SUBPOENA DUCES TECUM (Docs. 67, 69)


Plaintiff Maximilian Monclova-Chavez ("Plaintiff") is a federal prisoner in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for civil rights violations committed by federal actors. Plaintiff claims the defendants in this action violated Plaintiff's rights under the Eighth Amendment by using excessive force against Plaintiff.

On September 27, 2010, Defendant Timothy Miller and Defendant Kenneth White filed separate motions requesting a subpoena duces tecum commanding the Regional Counsel at the Western Regional Office for the Federal Bureau of Prisons to produce:

the SIS report along with the findings of the investigation, conducted by the SIA/OIG in the Maximilian Monclova investigation, along with the 583 and 586 incident reports (completed on April 7, 2007 in the Maximilian Monclova incident). This should include all pictures, videos, along with all medical reports and findings conducted by Mercy Hospital in Merced, CA.

(Request for Subpoena of Documents 1, ECF No. 67.)

The request is difficult to comprehend because it is unclear which investigation is at issue. Accordingly, the Court will narrow the request to encompass only the reports related to the use of excessive force incident described in Plaintiff's complaint. To the extent that Defendant Miller or Defendant White is seeking a report related to a different incident or investigation, the defendant must explain how the report is relevant to Plaintiff's claims or Defendants' defenses.

The issued subpoena will command the Regional Counsel to produce the requested documents within thirty (30) days of the date of service of the subpoena, but will otherwise be issued as a blank form. It is Defendant Miller and Defendant White's responsibility to complete the subpoena to indicate where the requested documents should be produced. It is also Defendant Miller and Defendant White's responsibility to serve the subpoena in accordance with Federal Rule of Civil Procedure 45(b).

Accordingly, it is HEREBY ORDERED that:

1. The Clerk of the Court is directed to:
a. Issue a completed subpoena duces tecum commanding the Regional Counsel at the Western Regional Office for the Federal Bureau of Prisons to produce the "SIS report," the "findings of the investigation conducted by the SIA/OIG," and the "583 and 586 incident reports" completed on April 7, 2007. The requested documents include all pictures and videos and all medical reports and findings conducted by Mercy Hospital in Merced, California. The subpoena shall command the Regional Counsel to produce the requested documents within thirty (30) days of the date of service of the subpoena; and
b. Serve a copy of this order and a copy of the issued subpoena on all parties to this action; and
2. Defendant Miller and Defendant White shall serve the subpoena duces tecum on the Regional Counsel at the Western Regional Office for the Federal Bureau of Prisons in accordance with Federal Rule of Civil Procedure 45(b).

IT IS SO ORDERED.

Dated: December 7, 2010 Issued by the Eastern California SUBPOENA IN A CIVIL CASE

If action is pending in district other than district of issuance, state district under case number.

UNITED STATES DISTRICT COURT ___________________ DISTRICT OF ______________________ MAXIMILIAN MONCLOVA-CHAVEZ V. ERIC MCEACHERN, et al., Case Number: 1:08-cv-00076 AWI SKO PC TO: Regional Counsel at the Western Regional Office for the Federal Bureau of Prisons [] YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below to testify in the above case. PLACE OF TESTIMONY COURTROOM DATE AND TIME [] YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. PLACE OF DEPOSITION DATE AND TIME [X] YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): "SIS Report", the "Findings of the investigation conducted by the SIA/OIG, and the "583 and 586 incident reports" completed on April 7, 2007. The requested documents include all pictures and videos and all medical reports and findings conducted by Mercy Hospital in Merced, California. PLACE DATE AND TIME [] YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. PREMISES DATE AND TIME Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6). 45 ISSUING OFFICER'S SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT DATE S. Martin Operations Specialist 12/9/10 ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER S. MARTIN (See Rule , Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), on next page)

PROOF OF SERVICE

DATE PLACE SERVED SERVED ON (PRINT NAME) MANNER OF SERVICE SERVED BY (PRINT NAME) TITLE DECLARATION OF SERVER I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on _____________________ ____________________ DATE SIGNATURE OF SERVER ____________________ ADDRESS OF SERVER ____________________ Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December 1, 2006:

(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the parry or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.

(2)(A) A person commanded to produce and permit inspection, copying, testing, or sampling of desiguated electronically stored information, books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection, copying, testing, or sampliug may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to producing any or all of the designated materials or inspection of the premises — or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production, inspection, copying, testing, or sampling. Such an order to compel shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection, copying, testing, or sampling commanded.

(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the stale in which the trial is held;
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to undne burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) DUTIES IN RESPONDING TO SUBPOENA.

(1)(A) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.
(C) A person responding to a subpoena need not produce the same electronieally stored information in more than one form.
(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) (A) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(B) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving parry may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.

(c) CONTEMPT. Failure of any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).


Summaries of

Monclova-Chavez v. McEachern

United States District Court, E.D. California
Dec 9, 2010
CASE NO. 1:08-cv-00076-AWI-SKO PC (E.D. Cal. Dec. 9, 2010)
Case details for

Monclova-Chavez v. McEachern

Case Details

Full title:MAXIMILIAN MONCLOVA-CHAVEZ, Plaintiff, v. ERIC McEACHERN, et al.…

Court:United States District Court, E.D. California

Date published: Dec 9, 2010

Citations

CASE NO. 1:08-cv-00076-AWI-SKO PC (E.D. Cal. Dec. 9, 2010)