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A.E. v. Nield

United States District Court, S.D. West Virginia, Huntington Division

November 27, 2018

A.E. and E.W., Plaintiffs,
v.
JOSHUA NIELD, ET AL., Defendants.

          ORDER

          Omar J. Aboulhosn United States Magistrate Judge

         On November 26, 2018 Defendant City of Huntington filed its Motion to Quash or Modify Subpoena [ECF No. 137] in reference to a subpoena duces tecum issued by Plaintiffs via email to Defendant's counsel at 5:01 pm on Friday, November 16, 2018 commanding the production of “all records for [Defendant] Josh Nield involving every instance Nield arrested, or issued a citation to, a female. Also, all records of any/all complaints made by females against any HPD officer involving assaults or sexual misconduct since Jan 1, 1995”[1] by November 27, 2018 at 10:00 am. [ECF No. 137-3]

         In support of its Motion, Defendant City of Huntington asserts the following:

         1. The subpoena is an improper vehicle for a Rule 34 request for production of documents, which governs discovery.

         2. The subpoena provides an unreasonable time to comply - 11 calendar days, only 6 of which were actual business days.

         3. Counsel for Defendant City of Huntington conferred with counsel for Plaintiffs requesting the production request to be more narrowly tailored.

         4. Counsel for Defendant City of Huntington requested that counsel for Plaintiffs provide thirty days in order to respond as provided by Rule 34, however, counsel for Plaintiffs refused, but countered that twenty days from the date when the subpoena was emailed.

         5. The subpoena requests documentation that spans eight-years of Defendant Nield's employment as a police officer with the Huntington Police Department.

         6. The subpoena is unlimited in its scope which may invariably include juveniles, sexual assault victims or other personal identifying information of non-party litigants that Defendant City of Huntington must ensure such documentation is appropriately redacted or withheld to protect those privacy interests. Because of the breadth of the scope inherent in the subpoena, Defendant City of Huntington would require additional time in order to protect these privacy interests.

         7. The subpoena was issued without Notice to all parties prior to service, as required under Rule 45(a)(4).

         8. The subpoena was sent just two days after the hearing before the undersigned, during which the undersigned conferred with Judge Chambers to extend the discovery deadline as well as the trial in this matter to accommodate Plaintiffs despite Plaintiffs failure to conduct discovery within the original discovery deadline.

         Relevant Law

          Under Rule 45(d)(3)(A), the party that is subject to the subpoena duces tecum may move to quash or modify the subpoena. Rule 45(d)(3)(A) provides that:

On timely motion, the court for the district where compliance is required must quash or ...

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