Opinion
Civil Action No. 10-cv-00794-WYD-BNB.
September 2, 2011
ORDER
This matter arises on the following motions:
(1) Defendants' Motion for Protective Order [Doc. #127, filed 08/09/2011] (the "First Motion"), and
(2) Defendants' Third Motion for Protective Order [Doc. #135, filed 08//22/2011] (the "Second Motion").
The motions are GRANTED.
The plaintiff is currently incarcerated by the Colorado Department of Corrections ("DOC"). The defendants state that on July 28, 2011, the plaintiff mailed a request for production of documents to Tom Kolle, a DOC employee, First Motion, ¶¶ 3-4, and on August 15, 2011, the plaintiff mailed a discovery request to DOC employee Joann Shoemaker. Second Motion, ¶¶ 2-3. Mr. Kolle, Ms. Shoemaker, and the DOC are not defendants in this case.
The defendants correctly assert that the discovery requests are untimely because the discovery cut-off was August 1, 2011, and all written discovery was required to be served so that responses were due on or before the discovery cut-off. The defendants seek a protective order "striking or otherwise barring" the discovery requests.
Rule 26(c), Fed.R.Civ.P., upon which the defendants rely in support of their motions for protective orders, provides that "[a] party or any person from whom discovery is sought may move for a protective order. . . ." (Emphasis added.) Mr. Kolle and Ms. Shoemaker are not parties to this case, and counsel for defendants does not assert that she represents them. As I previously informed counsel, she does not have standing to bring a motion for protective order on behalf of non-parties that she does not represent [Doc. #126]. Nonetheless, the discovery requests were untimely, and I have not extended the discovery cut-off.
Discovery from non-parties must be sought through subpoenas, and Fed.R.Civ.P. 45(c)(1) empowers a court to protect non-parties from improper discovery.
IT IS ORDERED that Defendants' Motion for Protective Order [Doc. #127] and Defendants' Third Motion for Protective Order [Doc. #135] are GRANTED.