e-Lessons Learned

So you’re in the discovery stage of litigation and you make a request but the other side won’t produce. No problem you think, I’ll just subpoena ‘em. WRONG.

In Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., Patrick Richardson filed a complaint against the Sexual Assault/Spouse Abuse Research Center (“Research Center”) alleging intentional infliction of emotional distress, tortuous interference with Richardson and his ex-wife Sheri Richardson’s divorce proceedings, and gender discrimination in violation of the Fourteenth Amendment and the Maryland State Constitution.

During discovery, Richardson served document requests on the Research Center pursuant to Fed. R. Civ. P. 34. The Research Center objected to these discovery requests for a number of reasons. In response to these objections, Richardson issued subpoenas on the three named defendants and two additional third parties. From the third parties Richardson sought any and all communications the third parties received from anyone on behalf of the Research Center during a specified period of time. From the named defendants, Richardson sought any and all records that pertained to his ex-wife. These subpoena requests included the documents previously sought via the Rule 34 request.

In response to these subpoenas, the Research Center argued first that the Violence Against Women Act prohibited the center from disclosing confidential information and that under the statute, even if the Center is not providing, or had not provided, services to the individual, the Center must treat that information as confidential. Next the Center argued that none of the records sought would contain, or lead to the discovery of, any relevant and admissible evidence. Finally the Center argued that for both federal and state claims privilege existed.

The District Court didn’t need Defendants’ arguments to quash Richardson’s subpoenas however.

After some initial discussion about Fed. R. Civ. P. 45, addressing when an issuing court must quash or modify a subpoena, the court noted that courts are divided as to whether Rule 45 subpoenas should be served on parties. The court, however, did not dwell on Rule 45. Instead, the court essentially held that Richardson put the subpoena-cart before the discovery-horses.

“More fundamentally, regardless whether a subpoena may be served on a party, a subpoena is not a proper means for obtaining documents previously sought through a Rule 34 production request, after the adverse party objected to the request.”

The court went on to say that when the Research Center objected to the previous request, Richardson should have first met and conferred with counsel for the Research Center. By meeting and conferring, the parties could have attempted to discuss whether the original request could be narrowed. If meeting and conferring proved unsuccessful, Richardson should have then filed a motion to compel production with the court.

By filing subpoenas without first attempting to negotiate or seeking a Court order, Richardson attempted to side-step the discovery process and “raise[d] concern[s] that the issuance of the subpoena was for an improper purpose.”

The court’s response to Richardson’s attempt gives homage to the mantra “if at first you don’t succeed, try and try again.” When faced with an objection to a discovery request, “try and try again” requires parties to first meet and confer and then, if unsuccessful, seek and order from the court.

Phil Ryan received his B.A. in Speech Communications from Whitworth University in 2006. He will receive is J.D. from Seton Hall Univeristy School of Law in May 2011. While at Seton Hall, Phil has served in a variety of capacities, including as Associate and Senior Editor on the Seton Hall Law Review, as a member of the Law School Admissions Committee and Disadvantaged Applicant Screening Committee, and as Program Assistant for the Seton Hall Law Cairo Summer Program.

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Article posted on June 24, 2011 at 6:33 AM |              More... 
Tagged as: Admissibility, Discoverability, Good Faith, Meet & Confer, Procedure.
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