778 F.2d 253 (5th Cir. 1985), 85-3016, Kendrick v. Heckler

Docket Nº:85-3016.
Citation:778 F.2d 253
Party Name:Chan KENDRICK, et al., Plaintiffs-Appellants, v. Margaret M. HECKLER, Secretary of Health and Human Services, et al., Defendants, v. Mercedes WILSON, The Executive Director of the Family of the Americas Foundation, Third-Party Deponent-Appellee.
Case Date:December 13, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
FREE EXCERPT

Page 253

778 F.2d 253 (5th Cir. 1985)

Chan KENDRICK, et al., Plaintiffs-Appellants,

v.

Margaret M. HECKLER, Secretary of Health and Human Services,

et al., Defendants,

v.

Mercedes WILSON, The Executive Director of the Family of the

Americas Foundation, Third-Party Deponent-Appellee.

No. 85-3016.

United States Court of Appeals, Fifth Circuit

December 13, 1985

Page 254

Jane Johnson, Tulane Law Clinic, New Orleans, La., Verna C. Sanchez, Atty., American Civil Liberties Union Foundation, Janet Benshoof, Paul, Weiss, Rifkind, Wharton & Garrison, Elaine H. Mandelbaum, Colleen McMahon, New York City, for plaintiffs-appellants.

Liskow & Lewis, John M. Wilson, George W. Pugh, Jr., New Orleans, La., for Mercedes Wilson.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE and JOHNSON, Circuit Judges, and PARKER [*], District Judge.

OPINION

JOHNSON, Circuit Judge:

Plaintiffs-appellants appeal from an order of the district court denying plaintiffs' motion to compel production of documents from a nonparty witness pursuant to Fed.R.Civ.P. 45(d)(1). This Court reverses the order of the district court.

I. FACTS AND PROCEDURAL HISTORY

The plaintiffs-appellants, a group of taxpayers and clergymen and the American Jewish Congress ("taxpayers") 1 filed suit in the United States District Court for the District of Columbia challenging the constitutionality of the Adolescent Family Life Act (AFLA), 42 U.S.C. Sec. 300Z. Taxpayers challenge the AFLA on the ground that the Act violates the religion clauses of the First Amendment because it encourages the funding of religious institutions and creates excessive entanglement between church and state.

Page 255

Seeking evidence to support their First Amendment claim, taxpayers subpoenaed to take the deposition of a nonparty witness, Mercedes Wilson, the Executive Director of the Family of the Americas Foundation, Inc. (FAF), a recipient of grant money under the AFLA. Wilson was also served with a subpoena duces tecum which required her to produce at her deposition "all correspondence with Pope John Paul II; all written, recorded or videotaped communication with Pope John Paul II; [and] all written, recorded or videotaped communication with the 'Pontifical Council for the Family at the Vatican.' " The notice and subpoena were issued and served on January 23, 1984, for a January 27, 1984, deposition.

At the January 27 deposition, Wilson served the taxpayers with written objections to the production of certain materials designated in the subpoena. Wilson specifically objected to the production of any correspondence with the Pope or Pontifical Council. 2 Taxpayers adjourned the deposition without moving in the district court for an order compelling Wilson to produce the requested documents.

On February 14, 1984, three weeks after Wilson's deposition, taxpayers responded to Wilson's written objections by offering a compromise. Specifically, taxpayers modified their production request to include only those "communications with the Pope that do not touch on personal or private matters." On April 19, 1984, Wilson refused to compromise and further refused to produce any communications between her agency and the Pope or the Pontifical Council.

On September 20, 1984, approximately eight months after Wilson's deposition, taxpayers filed a motion to compel production of the requested material in the United States District Court for the Eastern District of Louisiana. 3 The matter was referred to a United States Magistrate who on October 17, 1984, ordered an in camera inspection of the contested documents. After reviewing the documents, the magistrate ruled that the documents were relevant and not subject to any privilege. The magistrate further concluded that taxpayers' motion to compel was not untimely under Rule 45(d)(1) and ordered Wilson to produce all requested documents.

Wilson filed an objection to the magistrate's order with the district court. The district court proceeded to set aside the magistrate's order compelling discovery as "clearly erroneous." The district court found that taxpayers' motion to compel production was not timely because the motion was not filed "before or during the taking of the deposition" under Fed.R.Civ.P. 45(d)(1). Consequently, the...

To continue reading

FREE SIGN UP