Ott v. City of Milwaukee

274 F.R.D. 238, 2011 U.S. Dist. LEXIS 16855, 2011 WL 565657
CourtDistrict Court, E.D. Wisconsin
DecidedFebruary 9, 2011
DocketNo. 09-C-870
StatusPublished
Cited by4 cases

This text of 274 F.R.D. 238 (Ott v. City of Milwaukee) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ott v. City of Milwaukee, 274 F.R.D. 238, 2011 U.S. Dist. LEXIS 16855, 2011 WL 565657 (E.D. Wis. 2011).

Opinion

DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

This civil rights action filed by Plaintiff, Chaunte Ott (“Ott”) arises from Ott’s wrongful conviction for the 1995 murder of Jessica Payne. Pursuant to Rule 45 of the Federal Rules of Civil Procedure, Ott served subpoenas upon two non-parties, the Wisconsin State Crime Laboratory and the Wisconsin Department of Corrections (collectively, the “State agencies”). The State agencies filed an amended motion to quash subpoenas. Subsequently, upon review of the parties’ briefs, the Court requested that they submit supplemental briefs on one issue raised by the State agencies — whether a State agency is a person for purposes of Rule 45 of the Federal Rules of Civil Procedure.

The State Agencies’ Amended Motion to Quash Subpoenas

In moving to quash the subpoenas, the State agencies raise the following contentions: (1) the State agencies are not “persons” subject to a non-party subpoena; (2) the subpoenas were not properly served; (3) the subpoenas require the State agencies to travel more than 100 miles from their office; and (4) the subpoenas failed to allow a reasonable amount of time to comply. This Court will address each of the State agencies’ contentions.

The Meaning of “Person” under Fed.R.Civ.P. 45

The first issue raised is whether the non-party State agencies are “persons” subject to subpoenas issued under Rule 45. Rule 45(a)(1) provides in pertinent part that “[e]very subpoena must ... command each person to whom it is directed to do the following at a specified time and place: ... produce designated documents.” Rule 45 does not define “person.” As a general rule, however, a litigant “may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party.” Fed. R.Civ.P. 26(b)(1). Subpoenas may be issued to non-parties pursuant to Rule 45, but that non-party may move to quash the subpoena for reasons set forth in Rule 45(c)(3)(A).

In their initial briefs, the State agencies rely on Robinson v. City of Philadelphia, 233 F.R.D. 169, 172 (E.D.Pa.2005), which held that the word “person” in Rule 45 did not include the federal government and its employees. The State agencies also cite a num[240]*240ber of District of Columbia District Court cases that uniformly held a non-party federal agency is not a “person” under Rule 45. (Br. Supp. Am. Mot. Quash Subpoenas 4.)

Robinson, 233 F.R.D. at 172, stated the “Supreme Court has followed a ‘longstanding interpretative presumption that “person” does not include the sovereign.’ ” (quoting Vt. Agency of Nat’l Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)). Robinson also followed Al Fayed v. CIA, 229 F.3d 272, 273 (D.C.Cir.2000), which held that a “person” as used in 28 U.S.C. § 1782 did not encompass the United States, and several other District of Colombia district court decisions applying Al Fayed in holding that “person” in Rule 45 did not include federal agencies.

Al Fayed, 229 F.3d at 273, held that a “person” as used in 28 U.S.C. § 1782 did not encompass the United States. However, subsequently, the Court of Appeals for the District of Columbia Circuit addressed the question of whether a federal agency was a “person” within Rule 45 and held that the federal agency was indeed a “person” within that Rule. Yousuf v. Samantar, 451 F.3d 248, 257 (D.C.Cir.2006). Yousuf differentiates between the scope of “person” under 28 U.S.C. § 1782 in Al Fayed and under Rule 45.

Yousuf relied on the customary tools of statutory interpretation in holding that federal government was indeed a “person” under Rule 45. Yousuf, 451 F.3d at 255. “Person” is used throughout the Rules to include the federal government. Id. The “normal rule of statutory construction is that identical words used in different parts of the same act are intended to have the same meaning.” Id. at 256 (quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). See also In re Vioxx Prods. Liability Litig., 235 F.R.D. 334 (E.D.La.2006).

Yousuf, 451 F.3d at 254, noted that the Supreme Court stated that the government was presumed not to be a “person” bound by a statute in only two types of cases: “(1) where the statute, ‘if not so limited, would deprive the sovereign of a recognized or established prerogative title or interest,’ such as a statute of limitations; and (2) where deeming the Government a ‘person’ would “work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm.’ ” Id. (citing Nardone v. United States, 302 U.S. 379, 383-84, 58 S.Ct. 275, 82 L.Ed. 314 (1937)). “Rule 45 falls into neither class.” Yousuf, 451 F.3d at 254. Therefore, the court held that it was required to give the words and phrases of the Federal Rules consistent usage and must read the Rule in pari materia. Id. at 256 (quoting Marek v. Chesny, 473 U.S. 1, 21,105 S.Ct. 3012, 87 L.Ed.2d 1 (1985)). Yousuf, 451 F.3d at 257, held that “the term ‘person’ as used in the Federal Rules of Federal Procedure consistently means not only natural persons and business associations, but also governments, including the United States.”

The parties have not cited any decisions indicating whether a state agency or a State is a person under Rule 45, nor has the Court’s research disclosed any such decisions. In their supplemental brief, the State agencies argue at length that, contrary to the conclusion of Yousuf, all the relevant contemporaneous evidence in 1937 provides powerful evidence that “person” in Rule 45 was not intended to include sovereigns. The State agencies also argue that the 1970 amendments of the Federal Rules separately allow subpoenas for depositions to be issued to non-party organizations including governmental agencies which would then be required to designate the correct person to be deposed.

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Bluebook (online)
274 F.R.D. 238, 2011 U.S. Dist. LEXIS 16855, 2011 WL 565657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ott-v-city-of-milwaukee-wied-2011.