Opinion
05 Civ. 2897 (RWS).
August 8, 2007
MEMORANDUM OPINION AND ORDER
By letter dated April 26, 2007, Defendants Brian Fischer, et al. (the "State Defendants") have requested that the Court quash the subpoena served on non-party Robert Dennison, Chairman, New York State Division of Parole ("Dennison") which sought "[r]ecords, notice(s), memorandums [sic] or other documentations [sic] related to the Plaintiff Kenneth Smith['s] . . . violations of parole rules/conditions. . . ." The Court treated the letter as a motion returnable on May 9, 2007. The Court received the response of pro se Plaintiff Kenneth Smith (the "Plaintiff" or "Smith") on May 8, 2007, though there is no indication that such response was served upon the State Defendants.
The State Defendants have maintained that the subpoena should be quashed for the following reasons: (1) Plaintiff failed to serve the State Defendants with a copy of the subpoena and provide them with notice as required under Fed.R.Civ.P. 45(b)(1); (2) the subpoena seeks documents that are irrelevant to the remaining claims in Plaintiff's lawsuit; (3) the subpoena was served upon Dennison seven days after the return date of the subpoena; (4) Dennison was no longer employed as the Division of Parole at the time of service; and (5) the subpoena is unduly burdensome because it is ambiguous and incomprehensible.
Plaintiff has acknowledged that he failed to serve notice upon State Defendants of the subpoena directed at Dennison, but has asserted that no such notice is required "where the subpoena is directed exclusively to a non-party, as here." Pl. Letter of May 2, 2007, at 2. Plaintiff is mistaken. "A party issuing a subpoena to a non-party for the production of documents during discovery must provide prior notice to all parties to the litigation."Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 411 (S.D.N.Y. 2000) (citing Fed.R.Civ.P. 45(b)(1)). For this reason alone, the subpoena must be quashed. See id.
In addition, the subpoena does not appear to be "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Plaintiff contends that he was denied reasonable accommodations for his alleged hearing impairment in violation of the consent decree entered into in Clarkson v. Couglin, No. 91 Civ. 1792 (RWS); the Americans with Disabilities Act, 42 U.S.C. § 12132; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983. None of the alleged violations documented in the Complaint or accompanying papers — which are detailed in this Court's prior opinion in this action reported at 2006 U.S. Dist. LEXIS 70868, at *7-*13 — bear any discernable relationship to the documents requested in the subpoena. Plaintiff has argued that the documents may demonstrate that the calculations concerning his parole eligibility were incorrect. See Pl. Letter of May 2, 2007, at 4-7. However, Plaintiff's lawsuit has nothing to do with parole determinations, and the subpoena at issue consequently must be quashed.
The Court finds no need to address the State Defendants' additional arguments for quashal.
For the reasons stated above, the State Defendants' motion to quash the subpoena issued to Robert Dennison, Chairman, New York State Division of Parole shall be granted.
It is so ordered.