Norwood v. Hubbard

Full title: Kenneth Wilson Norwood, Plaintiff, v. Suzanne Hubbard, et al., Defendants

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

Date published: Nov 9, 2010

No. 1:07-CV-00889-SMM (E.D. Cal. Nov. 9, 2010)

Opinion

No. 1:07-CV-00889-SMM.

November 9, 2010

ORDER

STEPHEN McNAMEE, District Judge

Before the Court is Plaintiff Kenneth Norwood's ("Norwood") Request that the Court subpoena medical records from Community Regional Medical Center in Fresno, California (Doc. 84).

The issuance of subpoenas in civil cases is governed by Federal Rule of Civil Procedure 45. Rule 45(a)(3) requires that "[t]he clerk must issue a subpoena, signed but otherwise blank, to a party who requests it. That party must complete it before service." Rule 45(b) then requires that the subpoena be served by "delivering a copy to the named person."

In this case, Norward is proceeding in forma pauperis (See Doc. 8). The in forma pauperis statute, 28 U.S.C. § 1915, authorizes the Court to pay for service of process on behalf of an indigent litigant. Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989). However, the statute does not authorize the waiver of the document production fees to be tendered with the subpoena. Id. Therefore, Norwood must pay or make arrangements with the hospital regarding the charges to obtain copies of medical records discussed in the "Information About Accessing Your Medical Records" document (Doc. 84, Ex. B).

The Clerk of Court is HEREBY ORDERED to issue a subpoena in blank and a Form USM-285 to Norwood. Norwood is directed to complete the subpoena in accordance with Rule 45 and return it to the Court with a copy of this Order. Norwood is further directed to return the Form USM-285 to the Court in order to assure service of the subpoena is accomplished in an expeditious manner.

IT IS FURTHER ORDERED that the United States Marshals Service shall serve the subpoena as requested.

DATED this 9^th day of November, 2010.

Issued by the EASTERN CALIFORNIA SUBPOENA IN A CIVIL CASE ¹

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

UNITED STATES DISTRICT COURT DISTRICT OF V. Case Number: TO: [] YOU ARE COMMANDED to appear in the United States District court at the place, date, and time specified below 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 [] 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): 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). ISSUING OFFICER'S SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER

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, Parts C D:

(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 party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attorney's fee.

(2)(A) Aperson commanded to produce and permit inspection and copying of designated 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 and copying may, within 14 days after service of 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 inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy 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. Such an order to comply production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying 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 state in which the trial is held, or

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iv) subjects a person to undue 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 who 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 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.

(2) 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.