Opinion
CIVIL ACTION No. 09-3178-JWL-GLR.
June 28, 2010
ORDER
This is a civil action filed by a pro se prisoner in federal custody. He alleges claims that arose during his incarceration in the Leavenworth, Kansas, Detention Facility, operated by the Corrections Corporation of America ("CCA"). Pending before the Court is Plaintiff's Motion for Subpoena of Witnesses (doc. 14). Plaintiff requests that twelve individuals employed or formerly employed at CCA be subpoenaed for testimony. Two of the individuals listed in the motion are named as defendants. The remaining ten individuals are not parties in this action.
Federal Rule of Civil Procedure 45(a)(3) provides that "[t]he clerk must issue an subpoena, signed but otherwise in blank, to a party who requests it." The requesting party must then complete the subpoena and effectuate its service. The Court therefore grants Plaintiff's Motion for Issuance of Subpoenas. The form Subpoena to Testify at a Deposition in a Civil Action is attached to this Order.
Fed.R.Civ.P. 45(a)(3). See also Leo v. Garmin Int'l, Inc., No. 09-2139-KHV, 2009 WL 3458292, at *1 (D. Kan. Oct. 26, 2009) (granting pro se plaintiff's motion for the issuance of subpoenas).
Plaintiff is reminded that he must comply with Federal Rule of Civil Procedure 45, which sets forth specific requirements for issuing subpoenas. One of the requirements under Fed.R.Civ.P. 45(b)(1), is that subpoenas requiring the attendance of a witness for deposition must be served with "fees for 1 day's attendance and the mileage allowed by law" to the witness.
In addition, Plaintiff is reminded that Fed.R.Civ.P. 30(a)(2)(A)(i) limits the number of depositions a party can take to a maximum of ten. Plaintiff must therefore obtain leave in order to take more than ten depositions, unless the parties have stipulated to the depositions.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Subpoena of Witnesses (doc. 14) is granted, as set forth herein.
Plaintiff Defendant
UNITED STATES DISTRICT COURT for the District of Kansas ________________________________ ) ) Civil Action No. v. ) ) (If the action is pending in another district, state where: ________________________________ ) ) )SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
To:[] Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a deposition to be taken in this civil action. If you are an organization that is not a party in this case, you must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set forth in an attachment:
Place: United States Courthouse Date and Time: 500 State Ave Kansas City KS 66101-2431 The deposition will be recorded by this method: ______________________________________________
[] Production: You, or your representatives, must also bring with you to the deposition the following documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material:
The provisions of Fed.R.Civ.P. 45(c), relating to your protection as a person subject to a subpoena, and Rule 45(d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are attached. TIMOTHY M. O'BRIEN CLERK OF COURT Signature of Clerk or Deputy Clerk Attorney's signature
Date: ______________ OR _______________________________________ _______________________________________ The name, address, e-mail, and telephone number of the attorney representing (name of party), _________________ ________________________________________________________________, who issues or requests this subpoena, are:PROOF OF SERVICE (This section should not be filed with the court unless required by Fed.R.Civ.P. 45.)
This subpoena for (name of individual and title, if any) _______________________________________________ was received by me on (date) ______________________
[] I served the subpoena by delivering a copy to the named individual as follows: ________________________________ ______________________________________________________ ______________________________________________ on (date); ________________; or
[] I returned the subpoena unexecuted because: _______________________________________________ _____________________________________________________.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of $ __________________.
My fees are $ _____________________ for travel and $ _____________________ for services, for a total of $ _____________________.
I declare under penalty of perjury that this information is true. Server's signature Printed name and title Server's address
Date: _______________________ _________________________________________________________ _________________________________________________________ _________________________________________________________ Additional information regarding attempted service, etc:Federal Rule of Civil Procedure 45(c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:
(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person responding 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 for a protective order, the person responding must show that the information 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) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a subpoena 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; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).