Elam v. Ryder Automotive Operations, Inc.

179 F.R.D. 413, 41 Fed. R. Serv. 3d 899, 1998 U.S. Dist. LEXIS 21588, 1998 WL 384594
CourtDistrict Court, W.D. New York
DecidedJuly 2, 1998
DocketNo. 94-CV-0151A(F)
StatusPublished
Cited by3 cases

This text of 179 F.R.D. 413 (Elam v. Ryder Automotive Operations, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elam v. Ryder Automotive Operations, Inc., 179 F.R.D. 413, 41 Fed. R. Serv. 3d 899, 1998 U.S. Dist. LEXIS 21588, 1998 WL 384594 (W.D.N.Y. 1998).

Opinion

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by the Hon. Richard J. Arcara on April 29, 1994. It is presently before the court on a motion to quash a subpoena (Doe. # 32), filed June 22,1998.

BACKGROUND and FACTS

Plaintiff filed this diversity action on March 4, 1994 alleging negligence and products liability. Specifically, Plaintiff claims that on March 11, 1991, while employed in his normal work duties as a driver in Wentzville, Missouri operating a truck manufactured by Defendant Delavan, Plaintiff suffered severe and permanent injuries when the assembly connecting the trailer’s pelican hooks broke while Plaintiff was tightening the tie down chains.

On February 12, 1998, Paul K. Isaac, Esq., took the statement of Richard Cuedeck, a former employee of Defendant Ryder Automotive Operations, Inc. (“Ryder”), in preparation for litigation of an unrelated action pending in New York Supreme Court, Lang v. Ryder Automotive Operations, Inc., d/b/a Delavan; Delavan Industries Inc. Isaac represents the plaintiff in that action in which claims similar to those in the instant action are asserted. Cuedeck signed the statement on April 30, 1998, and it is undisputed that Isaac is in possession of the only signed and sworn copy of the transcribed statement.

On May 14, 1998, Plaintiffs attorney, David P. Marcus, Esq., subpoenaed Richard Cuedeck to appear at Marcus’s law office for the taking of his deposition on Friday, June 5, 1998 with regard to the instant case. On June 2, 1998, Cuedeck moved to modify that subpoena to adjourn the taking of Cuedeck’s deposition until Cuedeck received and reviewed a copy of the statement he made to Isaac on February 12, 1998. Cuedeck also requested a court order directing Isaac to provide him with a copy of the statement pursuant to Fed.R.Civ.P. 26(b)(3). On June 12, 1998, the undersigned granted the requested adjournment of Cuedeck’s deposition pending resolution of the issues raised by Cuedeck.

On June 16, 1998, Cuedeck’s attorney, J. Michael Lennon, Esq., served Isaac with a subpoena duces tecum requesting production of the statement.

On June 17, 1998, Isaac opposed Cuedeek’s request to modify the subpoena arguing that Cuedeck lacks standing to compel production of the statement as he is not a party to either the Elam or the Lang case. Isaac further maintains the such information is protected from disclosure by the attorney work-product doctrine.

On June 22, 1998, Isaac moved to quash Cuedeck’s subpoena on the grounds that it is proeedurally defective, Cuedeck has no standing to subpoena the statement, and the statement is protected from disclosure by the attorney work-product doctrine.

On June 24, 1998, Cuedeck replied in further support of his motion to compel production of Cuedeck’s statement and in opposition to Isaac’s motion to quash Cuedeck’s subpoena.

For the reasons as set forth below, the motion to quash the subpoena is DENIED.

[415]*415 DISCUSSION

1. Failure to Include the Text of Subdivisions (c) and (d) in Cuedeck’s Subpoena

As a threshold matter, Isaac argues that Cuedeck’s subpoena is procedurally defective as it fails to include the text of Fed. R.Civ.P. 45(c) and (d) as required under Rule 45(a)(1)(D). Affidavit of Paul K. Isaac, Esq., in Support of Motion to Quash Subpoena, (Affidavit in Support of Motion to Quash), Exhibit A to Motion and Notice of Motion to Quash Subpoena, filed June 22, 1998, (Doc. #32), 117. Cuedeck has not responded to this argument.

The form of a subpoena is governed by Fed.R.Civ.P. 45(a) and includes a provision that every subpoena “set forth the text of subdivisions (c) and (d) of this rule.” Fed. R.Civ.P. 45(a)(1)(D). Subdivision (c) provides a person subjected to a subpoena with protection from undue burden or expense in connection with the subpoena and sets forth the grounds on which a subpoena may be quashed. Fed.R.Civ.P. 45(c). Subdivision (d) ascribes certain duties to a person responding to a subpoena. Fed.R.Civ.P. 45(d). Inclusion of the text of subdivisions (c) and (d) in every subpoena ensures that the recipient of the subpoena is fully aware of both the available options that may be exercised in contesting the subpoena as well as the recipient’s obligations in responding to the subpoena. Fed.R.Civ.P. 45 Advisory Committee Notes on 1991 amendments to Rules.

Isaac points to no case law in support of his position and the only case the court’s research has found on point is Anderson v. Government of the Virgin Islands, 180 F.R.D. 284 (D.Vi.1998) (quashing subpoena for, among other things, failing to include the text of subdivisions (c) and (d)). However, the court in Anderson cites nothing in support of its decision.

Significantly, failure to set forth the text of subdivisions (c) and (d) within a subpoena is not among the enumerated grounds for which a subpoena may be quashed.1 Fed. R.Civ.P. 45(c)(3)(A). Moreover, Isaac cannot argue that he was prejudiced by Cuedeck’s failure to include the text of subdivisions (c) and (d) in the subpoena as, Isaac’s motion to quash the subpoena on that ground as well as on other grounds provided for in subdivision (c) indicates his awareness of such provisions. To quash the subpoena as procedurally defective under these circumstances would be to elevate form over substance, an invitation which the court declines. The court finds that absent a showing of real prejudice arising from Cuedeek’s failure to include subdivisions (c) and (d) in the subpoena, no basis to quash is presented. Isaac’s request on this ground is, therefore, DENIED.

2. Standing

According to Isaac, Fed.R.Civ.P. 26 is a discovery statute and Cuedeck, who is not a party in either the Elam or Lang case, is not entitled to rely on the discovery provisions available to parties involved in litigation in federal courts. Affidavit in Support of Motion to Quash, f 17. Isaac argues that as Cuedeck is not a real party in interest in the Elam case he is precluded from seeking such relief by Fed.R.Civ.P. 17 which requires that “every action shall be prosecuted in the name of the real party in interest____” Id., 11118-9 (quoting Fed.R.Civ.P. 17(a)).

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Bluebook (online)
179 F.R.D. 413, 41 Fed. R. Serv. 3d 899, 1998 U.S. Dist. LEXIS 21588, 1998 WL 384594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elam-v-ryder-automotive-operations-inc-nywd-1998.