Ghandi v. Police Department of Detroit

74 F.R.D. 115, 23 Fed. R. Serv. 2d 616, 1977 U.S. Dist. LEXIS 16919
CourtDistrict Court, E.D. Michigan
DecidedMarch 14, 1977
DocketCiv. A. No. 4-72019
StatusPublished
Cited by41 cases

This text of 74 F.R.D. 115 (Ghandi v. Police Department of Detroit) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ghandi v. Police Department of Detroit, 74 F.R.D. 115, 23 Fed. R. Serv. 2d 616, 1977 U.S. Dist. LEXIS 16919 (E.D. Mich. 1977).

Opinion

MEMORANDUM OPINION AND ORDER MODIFYING PLAINTIFFS’ SUBPOENA DUCES TECUM

KEITH, Chief Judge.

On January 27, 1977, the Federal Bureau of Investigation (hereinafter ‘Bureau’ and ‘F.B.I.’) filed a motion to quash a subpoena duces tecum for the production of documents on January 31, 1977, served upon it by the plaintiffs in- this action. The F.B.I. is no longer a party defendant in this case, the action having been dismissed as to the F.B.I. on April 11, 1975. Ghandi v. Police Dep’t. of Detroit, 66 F.R.D. 385 (E.D.Mich. 1975). The Bureau now appears before this Court as a non-party deponent and seeks to quash as improper, oppressive, and irrelevant the subpoena served upon it by the plaintiffs.

Plaintiffs’ original subpoena was issued by the Clerk of the Court on January 20, 1977, pursuant to Rule 45(d)(1) of the Federal Rules of Civil Procedure, which provides in part:

The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule.

This motion to quash is before this Court pursuant to Rule 45(b), which provides:

A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

In ruling on a motion to quash a subpoena duces tecum, the Court is not limited to the remedy of quashing the subpoena, but may so modify it as to remove its objectionable features. See, 9 Wright & Miller, Federal Practice & Procedure: Civil § 2457 at 437-438 (1971).

The Court, having allowed briefs in support of and in opposition to this motion, and being duly advised in the premises, is of the opinion that this matter should be decided without an oral hearing, pursuant to Rule IX(j) of the Local Court Rules.

I

The F.B.I. objects to the form of the subpoena issued on January 20, 1977. This subpoena was entitled “Civil Subpoena to Produce Document or Object”.1 It was directed to “The Federal Bureau of Investigation”, but does not identify a person to be deposed or suggest that the Bureau designate such an individual pursuant to Rule [118]*11830(b)(6).2 The subpoena commanded the F.B.I. to appear in the United States District Court for the Eastern District of Michigan, Southern Division, at the Federal Building in Detroit, Michigan, at 9:30 a. m., on January 31, 1977, to produce certain specified documents for the inspection and copying of the plaintiffs. There is no proof of service of a notice to take a deposition,3 and no witness fees were tendered with this subpoena pursuant to Rule 45(c).

This subpoena is clearly improper. It suffers obvious defects in form, not the least of which is its command to the F.B.I. to appear at the United States District Court at a time and on a date when no hearing or trial or conference was set to be heard by this Court in this matter. This subpoena should be quashed as improperly served.

However, by their response filed on February 8, 1977, the plaintiffs “reissued” their subpoena to cure the procedural defects therein.4 The second subpoena, issued by the Clerk of the Court on February 8, 1977, is entitled “Deposition Subpoena to Testify or Produce Documents or Things”.5 It is directed to “The Federal Bureau of Investigation (to produce such person pursuant to Rule 30(b)(6) as can testify to the correctness and maintenance of the attached list of documents and materials)”, and commands the Bureau to appear at the United States Attorney’s Office in the Federal Building in Detroit, Michigan, on February 23, 1977, at 9:00 a. m. to testify on behalf of the plaintiffs at the taking of a deposition in this action. The Bureau is commanded to produce the documents described on an attached List of Materials Subpoenad (sic) from the Federal Bureau of Investigation. This subpoena has a printed paragraph which states:

Any subpoenaed organization not a party to this suit is hereby admonished pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure, to file a designation with the court specifying one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and shall set forth, for each person designated, the matters on which he will testify or produce documents or things. [119]*119The persons so designated shall testify as to matters known or reasonably available to the organization.

Witness fees were tendered with this subpoena, and the subpoena names the individual upon whom it was served. Accompanying the subpoena was a Notice to Produce Documents at taking of deposition. The Court is satisfied that this second, “reissued” subpoena meets the procedural objections raised by the F.B.I. to the subpoena of January 20, 1977. The Court will therefore examine the other objections raised by the Bureau as having been brought against plaintiffs’ February 8, 1977, subpoena.

II

The F.B.I. objects to the production of any material requested by the plaintiffs which is not within the custody or control of the F.B.I.’s Detroit Field Office, citing Cates v. LTV Aerospace Corp., 480 F.2d 620 (5th Cir. 1973) (subpoena issued pursuant to Rule 30(b)(6) and served on Commanding Officer, Dallas Naval Air Station, to obtain Aircraft Accident Report located in Norfolk, Va., which was in the custody of the Secretary of the Navy in Washington, D. C., ordered quashed where Navy regulations provided that document should be sought directly from the Navy Secretary), for the proposition that this Court is without jurisdiction to order a non-party government agency to produce at a pre-trial deposition documents which are not within the control of the particular unit of the agency upon which the subpoena was served. In Cates v. LTV Aerospace Corp., supra, the Fifth Circuit stated:

We find nothing in Rule 30(b)(6) which would vest a court issuing a subpoena with the power to require that documents, in the custody or control of the head of an agency located outside the judicial district, be brought into the judicial district. Similarly, a person designated by an organization pursuant to Rule 30(b)(6) could not be required to travel outside of the limits imposed by Rule 45(d)(2). In short, Rule 30(b)(6) provides a procedure to use in determining the proper person to depose. It does not deal with the issue of where the deposition is to be taken or where documents are to be produced.

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Cite This Page — Counsel Stack

Bluebook (online)
74 F.R.D. 115, 23 Fed. R. Serv. 2d 616, 1977 U.S. Dist. LEXIS 16919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ghandi-v-police-department-of-detroit-mied-1977.