Olmstead v. Fentress Cnty.
| Decision Date | 28 November 2018 |
| Docket Number | Case No. 2:16-cv-00046 |
| Parties | PHILLIP DAVID OLMSTEAD, Plaintiff, v. FENTRESS COUNTY, TENNESSEE, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM AND ORDER
Defendant Southern Healthcare Partners (SHP) has filed a motion to quash a subpoena duces tecum that Plaintiff Phillip David Olmstead served on SHP on September 30, 2018. (Doc. No. 212.) Although Olmstead did not file a response in opposition to the motion to quash, his position is reflected in the joint statement of discovery issues in dispute that SHP filed with that motion. (Doc. No. 212-1, PageID# 1659.) For the reasons that follow, SHP's motion (Doc. No. 212) is GRANTED IN PART.
In this lawsuit, Olmstead claims that he was denied his hypertension medication while he was incarcerated at the Fentress County Justice Center (FCJC), leaving him permanently blind in one eye. (Doc. No. 205, PageID# 1613-19.) SHP was under contract to provide medical services to FCJC inmates while Olmstead was incarcerated there. (Id. at PageID# 1612, ¶ 8.) Olmstead alleges that SHP has shown a "pattern of failing to adequately train and supervise its nurses placed in the FCJF," and seeks to hold SHP liable under 42 U.S.C. § 1983 for deliberate indifference to his medical needs. (Id. at PageID# 1622.)
After Olmstead retained counsel, the Court entered a scheduling order, noting that "[t]he parties [had] exchanged multiple sets of discovery before Olmstead obtained counsel." (Doc. No. 195, PageID# 1570.) The order set August 10, 2018, as the deadline to serve any remaining requests for written discovery and September 10, 2018, as the deadline for responses. (Id.) SHP states that the parties informally extended the written discovery deadline by forty-five days; Olmstead disagrees, claiming that he never confirmed the he needed the extension. (Doc. No. 210, PageID# 1641-42; Doc. No. 212-2, PageID# 1662, ¶ 5.)
On September 5, 2018, Olmstead served SHP with a notice of deposition and subpoena duces tecum, which stated Olmstead's intent to depose SHP's corporate representative on October 5, 2018, regarding SHP's contract with the FCJC and the medical care that Olmstead received. (Doc. No. 212-2, PageID# 1662, ¶ 6; Doc. No. 212-3.) Although that notice referenced many different documents as deposition topics, it did not ask SHP to produce any of them. (Doc. No. 212-2, PageID# 1662, ¶ 6; Doc. No. 212-3.) Nonetheless, SHP "voluntarily provided [Olmstead] with several documents relating to the matters on which [Olmstead] had indicated the SHP corporate representative would be examined" in the hopes that Olmstead would cancel the deposition. (Doc. No. 212-2, PageID# 1662, ¶ 7.)
Olmstead did not cancel the deposition and, instead, on September 30, 2018, served SHP with a supplemental notice of deposition and subpoena duces tecum, which directed SHP's corporate representative to "provide and discuss" the following sets of documents:
(Doc. No. 212-4, PageID# 1676-77.)
The deposition scheduled for October 5, 2018, was rescheduled to October 26, 2018, and SHP served Olmstead with a notice of objections on October 8, 2018. (Doc. No. 212-1, PageID# 1658, ¶ 2; Doc. No. 212-5.) According to SHP and Olmstead's joint statement of discovery issues in dispute, all of SHP's objections have been addressed except for the following: SHP "objects to the issuance of subpoenas duces tecum because the deadline for written discovery has expired, and it is not permissible to use a subpoena duces tecum to obtain documents from another party after the expiration of the deadline." (Doc. No. 212-1, PageID# 1659.)
SHP argues that subpoenas under Rule 45 are not appropriately served on parties to a lawsuit, and that, therefore, the proper way to obtain the documents Olmstead seeks would havebeen to issue a request for production of documents under Rule 34 before the written discovery deadline expired. (Id.; Doc. No. 212, PageID# 1656, ¶ 4; Doc. No. 212-2, PageID# 1664.) SHP states that Olmstead "never submitted a written request for production of [the documents he seeks in the subpoena]." (Doc. No. 212, PageID# 1655-56, ¶ 3.) SHP asks the Court to quash Olmstead's subpoena and enter a protective order stating that SHP need not produce any of the requested documents. (Id. at PageID# 1667.)
Olmstead does not address the propriety of seeking document production from a party by subpoena, instead arguing that "there were documents identified by SHP for the first time after the expiration of the [August 10, 2018] written discovery deadline." (Doc. No. 212-1, PageID# 1659.) The only example Olmstead provides of such documents is Defendant Nurse Anthony Martin's reference, during his September 14, 2018 deposition, to '12 or 13 [training] manuals'" in the room at the [FCJC] that SHP put him in when he first became the [FCJC] nurse . . . ." (Id.)
Under Federal Rule of Civil Procedure 45(d)(3)(A), the Court must, on "timely" motion, quash or modify a subpoena that "fails to allow a reasonable time to comply;" "requires a person to comply beyond the geographical limits specific in Rule 45(c);" "requires disclosure of privileged or other protected matter, if no exception or waiver applies;" or "subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A) A motion to quash is timely if it is filed before compliance with the subpoena is required. See Maysey v. Henkel Corp., No. 1:17CV-00108-GNS, 2018 WL 314859, at *2 (W.D. Ky. Jan. 5, 2018) () (quoting FTC v. Trudeau, No. 5:12MC35, 2012 WL 5463829, at *3-4 (N.D. Ohio Nov. 8, 2012)); see also City of St. Petersburg v. Total Containment, Inc., No. 06-20953CIV, 2008 WL 1995298, at *2(E.D. Pa. May 5, 2008) (). The decision to quash a subpoena lies within the sound discretion of the trial court. Thomas v. City of Cleveland, 57 F. App'x 652, 654 (6th Cir. 2003) (citing Ghandi v. Police Dep't, 747 F.2d 338, 354 (6th Cir. 1984)).
"To sustain a protective order under Rule 26(c), [SHP] must show 'good cause' for protection from one (or more) harms identified in [Rule 26(c)(1),]" which include "annoyance, embarrassment, oppression, or undue burden or expense." In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016) (citations omitted). Good cause exists if, without a protective order, SHP will experience "specific prejudice or harm." Id. (quoting Father M. v. Various Tort Claimants (In re Roman Catholic Archbishop), 661 F.3d 417, 424 (9th Cir. 2011)). Among other things, a protective order may "forbid[] the disclosure of discovery[.]" Fed. R. Civ. P. 26(c)(1)A).
While some courts have agreed with SHP that a subpoena duces tecum cannot be used to obtain documents from a party under any circumstance, they are outnumbered by courts reaching the opposite conclusion. See United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572, 588 (D.N.M. 2015) (); see also Smith v. Gebhardt, 240 W. Va. 426, 813 S.E.2d 79, 88-89 (2018) (Davis, J., concurring) (). Courts adopting the minority view have pointed to the frequency of references to nonparties in the notes to Rule 45 and Rule 34's unambiguous application to parties only. See, e.g., Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996). Courts embracing the majority view have emphasized that the text of Rule 45 does not limit itsapplicability to nonparties and that there is no other rule that would require such a result. See, e.g., Mortg. Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562, 565-66 (W.D.N.C. 2002). They have also observed that an inter-party subpoena is the most logical way to secure for use at trial the original version of a document that was produced during discovery. See id.
But the courts that have allowed inter-party subpoenas have done so with a caveat that is fatal to Olsmtead's attempt to do so here: Rule 45 cannot be used to circumvent Rule 34 or other discovery rules. See 2121 Celeste Rd. SW, Albuquerque, ...
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