Murphy v. Board of Education

196 F.R.D. 220, 2000 U.S. Dist. LEXIS 13218, 2000 WL 1336345
CourtDistrict Court, W.D. New York
DecidedSeptember 12, 2000
DocketNo. 00-CV-6038L
StatusPublished
Cited by20 cases

This text of 196 F.R.D. 220 (Murphy v. Board of Education) 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
Murphy v. Board of Education, 196 F.R.D. 220, 2000 U.S. Dist. LEXIS 13218, 2000 WL 1336345 (W.D.N.Y. 2000).

Opinion

DECISION AND ORDER

LARIMER, Chief Judge.

The issue before the Court is whether experienced trial counsel for plaintiff should be sanctioned for repeatedly issuing third-party subpoenas without giving notice to opposing counsel as required by Fed.R.Civ.P. 45. In my view, the facts here fully warrant the imposition of compensatory monetary sanctions.

Procedural Background

Plaintiff, Donald Murphy, filed a 32-page complaint against officers and employees of the Rochester City School District (“School District”) and its Board, as well as the union representing the School District’s teachers, the Rochester Teachers Association (“Union”) and several of its officers. Murphy has raised numerous claims relating to his reassignment in 1991 from a teaching position at a local high school and concerning his present assignment, which is not to his liking. Murphy filed a previous lawsuit in this Court (93-CV-6158L) raising some of the same claims here. That case was settled in 1997, and plaintiff received a substantial sum to cover his attorney’s fees. Plaintiff claims in the instant action that the terms of that settlement have been breached, although he has declined to move to vacate the settlement and return the monies paid to him in settlement.

Plaintiffs counsel, Emmelyn Logan-Baldwin, Esq. (“Logan-Baldwin”), who came into this case after the first lawsuit had been settled, also represents other school district employees in similar lawsuits and has sought class action certification as well.

This litigation has been quite contentious and has required this Court, and the magistrate judges of this Court, to resolve many issues relating to the several related lawsuits. In addition, this case was commenced at a time when the School District and the Union were engaged in a conflict over the terms of a new collective bargaining agreement.

The matter now before the Court came to a head when counsel for the School District discovered that plaintiffs counsel had issued [222]*222two third-party subpoenas without providing defense counsel with the required notice. Counsel for the School District immediately moved to quash these subpoenas. On May 3, 2000, within days of the motion, the Court held a hearing. Unknown to defendants, plaintiffs counsel had actually issued a total of twelve such subpoenas. That fact was disclosed by plaintiffs counsel at the May 3 hearing but only after the Court questioned her about the matter.

At the May 3 hearing, after hearing all counsel, the Court quashed all of the twelve offending subpoenas and directed plaintiffs counsel to immediately turn over all of the documents that had been provided in response to the subpoenas. The Court also notified plaintiffs counsel, on the record, of its intent to consider sanctioning her for violating Rule 45. Logan-Baldwin was given an opportunity to orally explain her conduct, and the Court provided her with an opportunity to submit written responses and a memorandum of law. After the hearing, Logan-Baldwin filed a 17-page affirmation and a 14-page memorandum of law.

Discussion

The law could not be clearer concerning an attorney’s responsibility when issuing third-party subpoenas. It is also clear and not disputed that plaintiffs counsel issued twelve such subpoenas without giving any prior notice to opposing counsel. Plaintiffs counsel does not dispute the issuance of the subpoenas and does not really dispute that such action violated Rule 45. Plaintiffs counsel’s “response” has been an attempt to “explain” the reasons for acting as she did in an effort to dissuade the Court from imposing sanctions.

To understand why sanctions are most appropriate here, it is important to set forth the requirements of Rule 45 and the cases that have interpreted it as well as the actual conduct of plaintiffs counsel.

Federal Rule of Civil Procedure 45

Pursuant to Rule 45(a)(1)(C), a subpoena may be used to compel the production of documents and may be issued by an “attorney as officer of the court.” Fed.R.Civ.P. 45(a)(3). “Prior notice of any commanded production of documents and things ... shall be served on each party in the manner prescribed by Rule 5(b).” Fed.R.Civ.P. 45(b)(1). Upon timely motion, a court shall quash the subpoena if it “requires disclosure of privileged or other protected matter and no exception or waiver applies.” Fed.R.Civ.P. 45(c)(3)(A)(iii).

Subdivision (a) was amended in 1991 to allow counsel to issue subpoenas without obtaining them from the clerk of court. The Advisory Committee Notes explain this amendment as “merely a recognition of present reality.” Advisory Committee note to 1991 Amendment, subdivision (a). However, “[n]ecessarily accompanying the evolution of this power of the lawyer as officer of the court is the development of increased responsibility and liability for the misuse of this power.” Id.

Subdivision (b)(1) was also amended to require service of prior notice pursuant to Rule 5. According to the Advisory Committee Notes:

[t]he purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. Such additional notice is not needed with respect to a deposition because of the requirement of notice imposed by Rule 30 or 31. But when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced.

Advisory Committee note to 1991 Amendment, subdivision (b).

Without question, Rule 45(b)(1) requires a party issuing a subpoena for the production of documents to a non-party to “provide prior notice to all parties to the litigation.” Schweizer v. Mulvehill, 93 F.Supp.2d 376, 411 (S.D.N.Y.2000); see Seewald v. IIS Intelligent Information Sys., Ltd., 1996 WL 612497, at *4 (E.D.N.Y. Oct.16, 1996). “The requirement of prior notice has been interpreted to require that notice be given prior to the issuance of the subpoena, not prior to its return date.” Id. (citing Biocore Med. [223]*223Technologies, Inc. v. Khosrowshahi, 181 F.R.D. 660, 667 (D.Kan.1998); 9 Moore’s Federal Practice, § 45.03[4][b] at 45-27 (3d Ed.2000)).

Plaintiffs Counsel’s Conduct

Because Rule 45 is so clear and because plaintiffs counsel repeatedly violated it, sanctions would be appropriate based on those facts alone. However, the circumstances surrounding the issuance of these subpoenas underscores the need for sanctions. Therefore, these circumstances are set forth here in some detail.

On April 12, 2000, Logan-Baldwin sent a letter to defense counsel (“April 12 letter”) concerning discovery procedures.

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Cite This Page — Counsel Stack

Bluebook (online)
196 F.R.D. 220, 2000 U.S. Dist. LEXIS 13218, 2000 WL 1336345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-board-of-education-nywd-2000.