Frasier v. Twentieth Century Fox Film Corp., D.C.D.Neb. L.D. 1954, 119 F. Supp. 495; Newmark v. Abeel, D.C.S.D.N.Y. 1952, 106 F. Supp. 758; Quemos Theatre Co. v. Warner Bros. Pictures, D.C.D.N.J. 1940, 35 F. Supp. 949; Canuso v. City of Niagara Falls, D.C.W.D.N.Y. 1945, 7 F.R.D. 162; Stewart-Warner Corporation v. Staley, D.C.W.D.Pa. 1945, 4 F.R.D. 333; Isrel v. Shapiro, D.C.S.D.N.Y. 1942, 3 F.R.D. 175. The only difference between the instant case and the Ocean Accident case is that judgment has not yet been obtained and may not be against Eckrich, whereas it had already been entered against the Inter Insurance Exchange's insured.
Finally, the Court notes that district courts retain "inherent power . . . to protect anyone from oppressive use of process." See Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 606 (D.D.C 1969); see also Newmark v. Abeel, 106 F. Supp. 758, 759 (S.D.N.Y. 1952) (explaining that district court "has inherent power to take appropriate steps to protect against" misuse of subpoena process). 3.
It can only be used to order a non-party to answer written and oral questions under Rules 30 and 31." Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975); cf. Newmark v. Abeel, 106 F. Supp. 758, 759 (S.D.N.Y. 1952) ("There is no authority for the service of a subpoena duces tecum on a person not a party for purposes of discovery, in the absence of the taking of a deposition") (quoted in Jones v. Cont'l Cas. Co., 512 F. Supp. 1205, 1207 (E.D. Va. 1981)).
This text was consistently read to limit the power of federal courts to order pre-trial discovery from non-parties. See Newmark v. Abeel, 106 F.Supp. 758, 759 (S.D.N.Y. 1952) ("There is not authority for the service of a subpoena duces tecum on a person not a party for the purposes of discovery."). In fact, "[t] he accepted view was that nothing in Rule 45 gave the court the power to issue documents-only subpoenas to non-parties."
Some courts have held that there is no authority for the service of a subpoena duces tecum on a non-party if the party requesting the subpoena does not intend to actually depose the third party. SeeF.T.C. v. Gibson Products of San Antonio, Inc., 569 F.2d 900, 905 n. 14 (5th Cir.1978); Jones v. Continental Casualty Co., 512 F.Supp. 1205, 1206 (D.Nev.1981); Newmark v. Abeel, 106 F.Supp. 758, 759 (D.C.N.Y.1952); C. Wright and A. Miller, Federal Practice and Procedure § 2455 (text at n. 35); 28 Fed.Proc.L.Ed. § 65.149. Such a rule would have required the party serving the subpoena duces tecum in this case to also serve a deposition subpoena on the third party (which requires notice of the deposition to all parties) indicating his or her intent to depose the third party.
While the rule is certainly not as clear as it could be, all of the recently reported cases discovered by the Court's research support Hopkins' interpretation of the rule. Turner v. Parsons, 596 F.Supp. 185 (E.D.Pa.1984); Ghandi v. Police Dept. of City of Detroit, 74 F.R.D. 115 (E.D.Mich.1977); U.S. v. International Business Machines Corp., 71 F.R.D. 88 (S.D.N.Y.1976); McLean v. Prudential S.S. Co., 36 F.R.D. 421 (E.D.Va.1965); Newmark v. Abeel, 106 F.Supp. 758 (S.D.N.Y.1952). These cases stand for the proposition that a subpoena duces tecum is limited to use in conjunction with a deposition and trial.
In Taylor v. Litton Medical Products, Inc., 19 Fed.R.Serv.2d 1190, 1193 (D.Mass. 1975), the court held: "that the defendant cannot subpoena documents for the purpose of inspection and investigation with the view to eventually subpoenaing them to a trial or deposition or other legal proceeding." In Newmark v. Abeel, 106 F. Supp. 758, 759 (S.D.N.Y. 1952). The court held: "There is no authority for the service of a subpoena duces tecum on a person not a party for purposes of discovery, in the absence of the taking of a deposition, and therefore these subpoenas duces tecum are irregular and must be quashed."
In McLean v. Prudential Steamship Co., 36 F.R.D. 421, 425-426 (E.D.Va. 1965) Judge Hoffman of this Court noted that parties to litigation improperly use a subpoena duces tecum when they seek to employ it for a purpose other than "to aid in the actual trial, i.e., in the giving of depositions or the taking of testimony as far as a civil case is concerned." To support his conclusion, Judge Hoffman relied upon the following holding in Newmark v. Abeel, 106 F.Supp. 758, 759 (S.D.N.Y. 1952): There is no authority for the service of a subpoena duces tecum on a person not a party for purposes of discovery, in the absence of the taking of a deposition, and therefore these subpoenas duces tecum are irregular and must be quashed.
Rule 45 may not be invoked to obtain documentary evidence from non-parties prior to trial if the party invoking the rule has no intention of taking the deposition of the person to whom the subpoena is directed. McLean v. Prudential S. S. Co., 36 F.R.D. 421 (D.Va.1965); Newmark v. Abeel, 106 F.Supp. 758 (S.D.N.Y.1952). This subpoena is clearly improper.
IBM's alternate suggestion that since all of the issues which would be presented in a motion for an order for inspection are now before the court that the court should simply proceed to consider the motion on its merits appears to overlook the fact that were the court to consider the instant papers as relating to such a motion the burden of proof would be on IBM rather than on Mr. Brueck. Newmark v. Abeel, 106 F.Supp. 758 (S.D.N.Y.1952); McLean v. Prudential Steamship Co., 36 F.R.D. 421 (E.D.Va.1965); 5A J. Moore, Federal Practice 45-78 (2d ed. 1975). (2) Whether Mr. Brueck has control of the documents .