Opinion
Case No. 1:00-cv-1898-DFH-TAB.
February 3, 2006
ENTRY ON MOTION TO QUASH SUBPOENA TO PROCLAIM AMERICA
Plaintiffs filed on January 10, 2006 a motion to quash the defendant's non-party subpoena directed to one plaintiff's subsequent employer, Proclaim America. The motion is denied for failure to comply with this court's Local Rule 37.1, which requires opposing counsel to meet and confer on discovery disputes before such disputes are presented to the court by way of motion.
The court has the discretion to overlook failures to comply, such as where it is obvious that such a conference would be futile. See, e.g., Knauf Fiber Glass GmbH v. CertainTeed Corp., No. 1:02-cv-1215, Entry on Motion to Compel, n. 1 (S.D. Ind. Feb. 2, 2006) (motion sought discovery of privileged documents on basis of crime-fraud exception to privilege); Kobelco Metal Powder of America, Inc. v. The Energy Cooperative, Inc., 2001 WL 1397311, *1-2 (S.D. Ind. Oct. 30, 2001) (sufficient communications between counsel showed that further discussion would be futile).
Here it is far from clear that further discussion would be futile. Plaintiffs' reply brief seeks to explain the failure to meet and confer on the ground that Proclaim America's counsel had already objected to the subpoena. In other words, the reply brief indicates there had been no direct communication on this topic between the opposing counsel. In addition, plaintiffs' original motion focused on one subpoena issued to one plaintiff's one subsequent employer. Plaintiffs' reply brief seeks to broaden the issue so as to quash subpoenas to "all Plaintiffs' subsequent employers after their employment ended with CIC." (Proposed order tendered with reply brief.) It would not be fair to address the issue on such a broad basis when that scope was first raised in the reply brief.
The denial is without prejudice to renewal if the parties are unable to reach agreement on the subject.
So ordered.