Marvin Lumber & Cedar Co. v. PPG Industries, Inc.

177 F.R.D. 443, 40 Fed. R. Serv. 3d 800, 1997 U.S. Dist. LEXIS 22047, 1997 WL 851426
CourtDistrict Court, D. Minnesota
DecidedOctober 24, 1997
DocketCiv. No. 4-95-739(ADM/RLE)
StatusPublished
Cited by27 cases

This text of 177 F.R.D. 443 (Marvin Lumber & Cedar Co. v. PPG Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marvin Lumber & Cedar Co. v. PPG Industries, Inc., 177 F.R.D. 443, 40 Fed. R. Serv. 3d 800, 1997 U.S. Dist. LEXIS 22047, 1997 WL 851426 (mnd 1997).

Opinion

MEMORANDUM ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate judge; pursuant to a general assignment, made, in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Plaintiffs’ informal Motion for a Protective Order which would prohibit the Defendant from continuing to conduct discovery through the medium of Subpoenas duces tecum to non-party, third-persons.

A Hearing on the Motion was conducted on October 22,1997, at which time the Plaintiff appeared by Donald J. Brown, Esq.; the Defendant appeared by Cortney G. Sylvester, Esq.; and the Third-Party Defendant appeared by William R. Stoeri, Esq.

For reasons which follow, we grant the Motion in part.

II. Discussion

In our view, the issue before us is controlled by a determination as to whether Subpoenas duces tecum constitute “discovery” within the meaning of Rules 16 and 26, Federal Rules of Civil Procedure. We conclude that Rule 45 Subpoenas, which are intended to secure the pretrial production of documents and things, are encompassed within the definition of “discovery,” as enunciated in Rule 26(a)(5) and, therefore, are subject to the same time constraints that apply, to all of the other methods of formal discovery.

In pertinent part, Rule 26(a)(5) provides as follows:

[444]*444Parties may obtain discovery by one or more of the following methods: *** production of documents or things *** under Rule *** 45(a)(1)(C), for inspection and other purposes ***.’

Moreover, as to requests for the production of documents from “non-parties,” Rule 34(c), Federal Rules of Civil Procedure, expressly provides:

A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45.

In turn, Rule 45, Federal Rules of Civil Procedure, requires a party, who wishes to subpoena documents or things, to serve a copy of the Subpoena upon the other parties to the action, as required by Rule 5(b), Federal Rules of Civil Procedure. See, Rule 45(b)(1) (“Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).”).

Had the drafters of the applicable Rules intended to exclude Rule 45 Subpoenas from the generally applicable restrictions on discovery, then we think they would not have taken such pains to assure a uniformity of treatment irrespective of the particular method of discovery being employed. For example, Rule 16(b)(3), Federal Rules of Civil Procedure, contemplates the entry of a “scheduling order that limits the time *** to complete discovery.” Nowhere have the drafters attempted to exclude one or more methods of discovery from the time constraints which generally apply, nor have the parties here suggested a different timetable for the completion of discovery by way of Rule 45 Subpoenas. Indeed, discovery in this matter closed on September 30, 1997, no one has requested that discovery continue and, quite pointedly, the parties have assured the Court that they were desirous of a firm discovery cutoff.1

Having concluded that Rule 45 Subpoenas are a method of “discovery” under Rule 26, we need only determine whether the Plaintiffs’ request for protection is cognizable under Rule 26(c), Federal Rules of Civil Procedure. Of course, Rule 26(c) clearly contemplates the making of an Order that, in order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense,” includes a directive that “disclosure or discovery not be had.” We conclude, as the Supreme Court has long instructed, that the discovery Rules, including those prescribed by Rules 16 and 26, should be read in pari materia. In Hickman v. Taylor, 329 U.S. 495, 505, 67 S.Ct. 385, 390-91, 91 L.Ed. 451 (1947) the Court observed, as follows:

It matters little at this late stage whether Fortenbaugh fails to answer interrogatories filed under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda pursuant to a subpoena under Rule 45 or a court order under Rule 34. The deposition-discovery rules create integrated procedural devices.

We do not suggest that this is an issue of first impression in this District or, for that matter, elsewhere, and we find, in fact, that we respectfully disagree with the holdings of other Courts, including one within this District, which have addressed the same subject. In Multi-Tech Systems v. Hayes Microcomputer Products, 800 F.Supp. 825, 854 (D.Minn.1992), appeal dismissed, 988 F.2d [445]*445130 (Fed.Cir.1993) (Table),2 the Court denied a request for a Protective Order, and reasoned as follows:

The court finds that the magistrate ruling is not clearly erroneous. Hayes Inc. has not produced sufficient evidence indicating that Multi-Tech’s subpoena constituted an untimely discovery request to warrant over-ruling the magistrate judge’s decision. The close of discovery does not prohibit Multi-Tech from serving a subpoena duces tecum upon Ziff, because Ziff is a non-party to the litigation, Ziff is not a subsidiary of Hayes Inc., Ziff is not a subsidiary of Hayes Inc., Ziff is not controlled by Dennis Hayes and the documents requested are not documents within the possession, custody or control of Hayes Inc.

In our considered view, however, where the effort is not to quash a Subpoena, as allowed by Rule 45(c) — which limits such remedies to the “persons subject to subpoenas” — the issue is not one of privity between a party and the subpoenaed third-person, but is one of case management under Rules 16 and 26. See, Rice v. United States, 164 F.R.D. 556, 558 (N.D.Okla.1995) (“Thus the better reasoned view is that the Rule 45 subpoenas duces tecum at issue before the Court are a form of discovery and, therefore, are subject to the Court’s discovery deadline.”); accord, McNerney v. Archer Daniels Midland Company, 164 F.R.D. 584, 588 (W.D.N.Y.1995); Leach v. Quality Health Services, Inc., 162 F.R.D. 40, 41-42 (E.D.Pa.1995); Arkwright Mutual Insurance Co. v. National Union Fire Insurance Co., 1995 WL 66405 *1-2 (S.D.N.Y., February 15,1995).

The obligation of a party to monitor an opponent’s discovery, as allowed by Rule 45 Subpoenas, is no less burdensome or expensive than that demanded by the other methods of formal discovery and, in fact, can be considerably more burdensome and expensive than those forms of discovery which are unquestionably regulated by Rule 16.

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177 F.R.D. 443, 40 Fed. R. Serv. 3d 800, 1997 U.S. Dist. LEXIS 22047, 1997 WL 851426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marvin-lumber-cedar-co-v-ppg-industries-inc-mnd-1997.