8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 CORNEL JACKSON, Case No. 1:19-cv-01591-NONE-EPG (PC)
12 Plaintiff, ORDER REQUIRING RESPONSE FROM THE PARTIES REGARDING REQUEST 13 v. FOR THE ISSUANCE OF A SUBPOENA DUCES TECUM 14 JASON QUICK, et al., (ECF No. 79) 15 Defendants.
16 17 Plaintiff Cornel Jackson is a pretrial detainee proceeding pro se and in forma pauperis 18 in this civil rights action filed pursuant to 42 U.S.C. § 1983. On June 21, 2021, Plaintiff filed a 19 request for the issuance of a subpoena duces tecum. (ECF No. 79). He seeks to obtain video 20 recordings from court proceedings in his ongoing state criminal case in the Madera Superior 21 Court, for which he faces felony charges.1 For the reasons given below, the Court lacks 22 sufficient information to rule on the motion and will require the parties to file a response to this 23 order. 24 I. BACKGROUND 25 Plaintiff’s operative complaint is his second amended complaint, which alleges that 26 27 1 The Court may take judicial notice of the court records in Plaintiff’s criminal case (MCR058736) in the Madera Superior Court. Fed. R. Evid. 201(b); see United States v. Wilson, 631 F.2d 118, 119 (9th 28 Cir.1980). 1 1 prison officials have been improperly opening his legal mail, reading it, confiscating or 2 withholding it, and turning it over to the district attorney to prejudice Plaintiff in his pending 3 state criminal case. (ECF No. 25). Plaintiff also alleges that he has been provided insufficient 4 legal supplies to defend himself in his criminal case. In support of his claims, Plaintiff refers to 5 an incident in his criminal case, alleging that his defense counsel exposed misconduct by 6 Defendants on the record at a court hearing. (Id. at 5). 7 This Court’s screening order found that Plaintiff stated cognizable claims against (1) 8 Defendants Quick, Alvarez, Rossette, Followell, Lopez, Ramos, Sanchez, Marley, and Purdente 9 for violating Plaintiff’s First and Sixth Amendment rights with respect to Plaintiff’s legal 10 correspondence and for conspiracies to violate such rights and (2) Alvarez for violating 11 Plaintiff’s right of access to the courts. (ECF No. 26). 12 II. THE CURRENT REQUEST 13 Plaintiff’s request for a subpoena duces tecum seeks to obtain video recordings from his 14 state criminal case in the Madera Superior Court on the dates of September 7 and 14, 2018; 15 March 25, 2019; September 13, 2019; and December 6, 2019. (ECF No. 79, p. 2). Plaintiff 16 states that the video records from the September 7 and 14, 2018 dates show defense counsel 17 exposing Defendants’ misconduct and reveals a larger conspiracy by Defendants. (Id.). 18 Although Plaintiff does not offer many specifics, he indicates that “the transcripts of the 19 hearing” would show “that the Defendants intentionally interfer[ed] with the Plaintiff’s legal 20 mail and turn[ed] it over to the prosecution team, who in turn used the content of defense plans 21 and strategy to substantially prejudice his defense by the gained unfair advantage.” (Id. at 3). 22 Plaintiff also states that “at said hearing, he filed for a faretta, and it was granted and he was 23 certified PRO-PER.” 2 (Id. at 2). 24 Plaintiff offers less information regarding the March 25, 2019 proceeding, saying he 25 “will later [describe] this video more,” but states that it is “relevant in the same manner,” 26
27 2 It is unclear if Plaintiff is referring to the September 7 or 14 hearing, or, if he is indicating that a single 28 hearing continued over the course of both dates. 2 1 apparently a reference to his earlier discussion concerning the September 7 and 14, 2018 dates. 2 (Id. at 3). “Plaintiff claims he again asked the Judge for the transcripts and the motion was 3 denied. In denying the motion the Judge affirmed that he would never give up the transcripts. 4 He did inform the Plaintiff to request the transcripts from his appellate counsel, which the 5 Plaintiff did.” (Id.). 6 Plaintiff provides little information regarding the December 6, 2019 proceeding, but 7 generally alleges that “these transcripts which were the key element to the Plaintiff[’]s defense 8 to establish his claim, were never received.” (Id. at 4). Plaintiff says that his appellate counsel 9 sent the transcripts to him but they “were not received” and accuses Defendants of 10 “confiscat[ing] the EX PARTE / confidential transcripts to prevent their unlawful actions from 11 surfacing.” (Id. at 4-5). However, Plaintiff states that, “a couple of months ago, [he] finally 12 received the transcripts in question . . . and the Plaintiff immediately noticed that the transcripts 13 of the hearings above-listed were edited,” including the parts where “Plaintiff’s defense 14 counsel[’]s testimony expos[ed] the Defendants[’] unlawful acts.” (Id. at 5). He claims that 15 “these videos of exculpatory evidence cannot be obtained, because they can only be obtained 16 by the Plaintiff[’]s request due to the information being apart of the Plaintiff[’]s pending 17 criminal case and those hearings were ex parte and needs the Plaintiff’s consent to waive 18 privilege.” (Id. at 6). 19 III. LEGAL STANDARDS 20 Under Federal Rule of Civil Procedure 45, a subpoena may direct a non-party to an 21 action to produce documents or other tangible objects for inspection. However, subpoenas are 22 subject to limitations. Notably, the court where compliance with the subpoena would be 23 required must enforce the duty of the issuing party to take reasonable steps to avoid imposing 24 undue burden or expense on a person subject to the subpoena. Fed. R. Civ. P. 45(d). 25 In the scheduling order, the Court also imposed the following requirements for Plaintiff 26 to obtain a subpoena duces tecum: 27 If Plaintiff seeks documents from someone who is not a party in this case, 28 Plaintiff must file a request for the issuance of a subpoena duces tecum with the 3 Court. In any request for a subpoena, Plaintiff must: (1) identify the documents 1 sought and from whom; (2) explain why the documents are relevant to the claims in this case; and (3) make a showing in the request that the records are 2 only obtainable through a third party. 3 (ECF No. 76, p. 4). 4 Moreover, “[t]he Federal Rules of Civil Procedure were not intended to burden a non- 5 party with a duty to suffer excessive or unusual expenses in order to comply with 6 a subpoena duces tecum.” Flournoy v. Maness, No. 2:11-cv-2844-KJM-EFBP, 2016 WL 7 6493970, at *2 (E.D. Cal. Nov. 2, 2016) (quoting Badman v. Stark, 139 F.R.D. 601, 605 (M.D. 8 Pa. 1991)). A court may, in certain instances, shift the cost of complying with a subpoena from 9 the nonparty to the requesting party. Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th 10 Cir. 2013). Further, some courts refuse to issue subpoenas until a party shows proof that he has 11 made arrangements to pay for the costs of production. See Hawkinson v. Montoya, No. CIV.A. 12 04-CV-01271EW, 2006 WL 1215397, at *2 (D. Colo.
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 CORNEL JACKSON, Case No. 1:19-cv-01591-NONE-EPG (PC)
12 Plaintiff, ORDER REQUIRING RESPONSE FROM THE PARTIES REGARDING REQUEST 13 v. FOR THE ISSUANCE OF A SUBPOENA DUCES TECUM 14 JASON QUICK, et al., (ECF No. 79) 15 Defendants.
16 17 Plaintiff Cornel Jackson is a pretrial detainee proceeding pro se and in forma pauperis 18 in this civil rights action filed pursuant to 42 U.S.C. § 1983. On June 21, 2021, Plaintiff filed a 19 request for the issuance of a subpoena duces tecum. (ECF No. 79). He seeks to obtain video 20 recordings from court proceedings in his ongoing state criminal case in the Madera Superior 21 Court, for which he faces felony charges.1 For the reasons given below, the Court lacks 22 sufficient information to rule on the motion and will require the parties to file a response to this 23 order. 24 I. BACKGROUND 25 Plaintiff’s operative complaint is his second amended complaint, which alleges that 26 27 1 The Court may take judicial notice of the court records in Plaintiff’s criminal case (MCR058736) in the Madera Superior Court. Fed. R. Evid. 201(b); see United States v. Wilson, 631 F.2d 118, 119 (9th 28 Cir.1980). 1 1 prison officials have been improperly opening his legal mail, reading it, confiscating or 2 withholding it, and turning it over to the district attorney to prejudice Plaintiff in his pending 3 state criminal case. (ECF No. 25). Plaintiff also alleges that he has been provided insufficient 4 legal supplies to defend himself in his criminal case. In support of his claims, Plaintiff refers to 5 an incident in his criminal case, alleging that his defense counsel exposed misconduct by 6 Defendants on the record at a court hearing. (Id. at 5). 7 This Court’s screening order found that Plaintiff stated cognizable claims against (1) 8 Defendants Quick, Alvarez, Rossette, Followell, Lopez, Ramos, Sanchez, Marley, and Purdente 9 for violating Plaintiff’s First and Sixth Amendment rights with respect to Plaintiff’s legal 10 correspondence and for conspiracies to violate such rights and (2) Alvarez for violating 11 Plaintiff’s right of access to the courts. (ECF No. 26). 12 II. THE CURRENT REQUEST 13 Plaintiff’s request for a subpoena duces tecum seeks to obtain video recordings from his 14 state criminal case in the Madera Superior Court on the dates of September 7 and 14, 2018; 15 March 25, 2019; September 13, 2019; and December 6, 2019. (ECF No. 79, p. 2). Plaintiff 16 states that the video records from the September 7 and 14, 2018 dates show defense counsel 17 exposing Defendants’ misconduct and reveals a larger conspiracy by Defendants. (Id.). 18 Although Plaintiff does not offer many specifics, he indicates that “the transcripts of the 19 hearing” would show “that the Defendants intentionally interfer[ed] with the Plaintiff’s legal 20 mail and turn[ed] it over to the prosecution team, who in turn used the content of defense plans 21 and strategy to substantially prejudice his defense by the gained unfair advantage.” (Id. at 3). 22 Plaintiff also states that “at said hearing, he filed for a faretta, and it was granted and he was 23 certified PRO-PER.” 2 (Id. at 2). 24 Plaintiff offers less information regarding the March 25, 2019 proceeding, saying he 25 “will later [describe] this video more,” but states that it is “relevant in the same manner,” 26
27 2 It is unclear if Plaintiff is referring to the September 7 or 14 hearing, or, if he is indicating that a single 28 hearing continued over the course of both dates. 2 1 apparently a reference to his earlier discussion concerning the September 7 and 14, 2018 dates. 2 (Id. at 3). “Plaintiff claims he again asked the Judge for the transcripts and the motion was 3 denied. In denying the motion the Judge affirmed that he would never give up the transcripts. 4 He did inform the Plaintiff to request the transcripts from his appellate counsel, which the 5 Plaintiff did.” (Id.). 6 Plaintiff provides little information regarding the December 6, 2019 proceeding, but 7 generally alleges that “these transcripts which were the key element to the Plaintiff[’]s defense 8 to establish his claim, were never received.” (Id. at 4). Plaintiff says that his appellate counsel 9 sent the transcripts to him but they “were not received” and accuses Defendants of 10 “confiscat[ing] the EX PARTE / confidential transcripts to prevent their unlawful actions from 11 surfacing.” (Id. at 4-5). However, Plaintiff states that, “a couple of months ago, [he] finally 12 received the transcripts in question . . . and the Plaintiff immediately noticed that the transcripts 13 of the hearings above-listed were edited,” including the parts where “Plaintiff’s defense 14 counsel[’]s testimony expos[ed] the Defendants[’] unlawful acts.” (Id. at 5). He claims that 15 “these videos of exculpatory evidence cannot be obtained, because they can only be obtained 16 by the Plaintiff[’]s request due to the information being apart of the Plaintiff[’]s pending 17 criminal case and those hearings were ex parte and needs the Plaintiff’s consent to waive 18 privilege.” (Id. at 6). 19 III. LEGAL STANDARDS 20 Under Federal Rule of Civil Procedure 45, a subpoena may direct a non-party to an 21 action to produce documents or other tangible objects for inspection. However, subpoenas are 22 subject to limitations. Notably, the court where compliance with the subpoena would be 23 required must enforce the duty of the issuing party to take reasonable steps to avoid imposing 24 undue burden or expense on a person subject to the subpoena. Fed. R. Civ. P. 45(d). 25 In the scheduling order, the Court also imposed the following requirements for Plaintiff 26 to obtain a subpoena duces tecum: 27 If Plaintiff seeks documents from someone who is not a party in this case, 28 Plaintiff must file a request for the issuance of a subpoena duces tecum with the 3 Court. In any request for a subpoena, Plaintiff must: (1) identify the documents 1 sought and from whom; (2) explain why the documents are relevant to the claims in this case; and (3) make a showing in the request that the records are 2 only obtainable through a third party. 3 (ECF No. 76, p. 4). 4 Moreover, “[t]he Federal Rules of Civil Procedure were not intended to burden a non- 5 party with a duty to suffer excessive or unusual expenses in order to comply with 6 a subpoena duces tecum.” Flournoy v. Maness, No. 2:11-cv-2844-KJM-EFBP, 2016 WL 7 6493970, at *2 (E.D. Cal. Nov. 2, 2016) (quoting Badman v. Stark, 139 F.R.D. 601, 605 (M.D. 8 Pa. 1991)). A court may, in certain instances, shift the cost of complying with a subpoena from 9 the nonparty to the requesting party. Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th 10 Cir. 2013). Further, some courts refuse to issue subpoenas until a party shows proof that he has 11 made arrangements to pay for the costs of production. See Hawkinson v. Montoya, No. CIV.A. 12 04-CV-01271EW, 2006 WL 1215397, at *2 (D. Colo. May 4, 2006) (“I will not order the Clerk 13 of the Court to issue a subpoena commanding the production of documents from a third party 14 until the plaintiff provides proof that he has made arrangements for the payment of any costs 15 associated with the preparation or copying of those documents, or obtained the agreement of 16 the third party to waive the payment of those costs.”). 17 IV. ANALYSIS 18 The Court currently lacks sufficient information to rule on Plaintiff’s request. Plaintiff’s 19 request is highly unusual because he is requesting that this Court issue a subpoena to another 20 court, with an active case involving Plaintiff, so that he may obtain video records from his 21 ongoing state court criminal case. 22 It is unclear why Plaintiff cannot obtain these records directly from the state court. See 23 Gibson v. Beer, No. CV-F-03-5445-OWW-DLB P, 2008 WL 4057597, at *1 (E.D. Cal. Aug. 24 29, 2008) (noting that subpoena duces tecum was unnecessary where Plaintiff could request 25 court records from the court clerk). While Plaintiff’s request generally asserts that Defendants 26 and the state court have interfered with him receiving transcripts of the proceedings he now 27 requests video records for, Plaintiff’s request does not provide specific factual allegations to 28 4 1 show that this is correct nor does he attach any exhibits to his request that would support his 2 allegations, e.g., a state court order denying his request for hearing transcripts.3 3 Moreover, the docket from Plaintiff’s criminal reveals that Plaintiff has had recent court 4 hearings, including on April 28, 2021, May 13, 2021, and July 8, 2021. To the extent Plaintiff 5 is legally entitled to these transcripts, it is not clear why Plaintiff cannot request them directly 6 from the Court. While Plaintiff indicates that he cannot obtain the video records because the 7 proceedings are ex parte and he needs to consent to their release, the Court fails to understand 8 why Plaintiff does not provide his consent to obtain the video records. (ECF No. 79, p. 6). 9 It is also possible that Plaintiff cannot obtain the transcripts in his case because he is not 10 entitled to them for some legal reason related to his case. If this is the case, the Court needs to 11 understand that legal basis, and consider the general deference to state courts in reference to 12 their own pending matters. See Mungo v. First Preston Mgmt., Inc., No. CV 2006-3120 ENV 13 MDG, 2006 WL 2570978, at *1 (E.D.N.Y. Sept. 5, 2006) (“[A]s a matter of comity, federal 14 courts should defer to state courts in determining whether to unseal state criminal records.”); cf. 15 Younger v. Harris, 401 U.S. 37, 43, (1971) (“Since the beginning of this country’s history 16 Congress has, subject to few exceptions, manifested a desire to permit state courts to try state 17 cases free from interference by federal courts.”). It is also possible that the Court could stay the 18 request until the criminal case is concluded to avoid any conflict between the two. 19 V. CONCLUSIONS AND ORDER 20 Because the Court lacks sufficient information to rule on Plaintiff’s request and will 21 require additional filings from each party, IT IS ORDERED as follows: 22 1. No later than July 30, 3021, Plaintiff and Defendants shall each file a response to 23 this order, specifically providing any additional information they have as to whether 24 the state court or Defendants have prevented or would prevent Plaintiff from 25 receiving transcripts or video records of the hearings identified in Plaintiff’s request 26 for the issuance of a subpoena duces tecum.
27 3 This Court’s brief review of the state court docket did not find any orders denying access to records of 28 the video hearings at issue. 5 1 2. Each party shall attach to their respective response any documents that they can 2 reasonably obtain, e.g. state court orders, indicating that Plaintiff has been denied or 3 would be denied access to the records he seeks should he request them directly from 4 the state court. 5 3. Should Plaintiff fail to comply with this order, he is warned that his request for 6 issuance of a subpoena duces tecum (ECF No. 79) will be denied. 7 g IT IS SO ORDERED. Dated: _ July 9, 2021 [Je hey 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28