Wolfeboro v. Wright-Pierce 12-CV-130-JD 4/30/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Town of Wolfeboro
v. Civil No. 12-cv-130-JD Opinion No. 2014 DNH 094 Wright-Pierce
MEMORANDUM OPINION
Defendant, Wright-Pierce, served a trial subpoena on Harry
Stewart, the Director of the Water Division for the New Hampshire
Department of Environmental Services (“NHDES”), requiring his
appearance and testimony in this case. The NHDES moved to quash
the subpoena. The court ordered Wright-Pierce to respond to the
motion and to provide bullet proffers of the testimony it
intended to elicit from Stewart, as well as to identify each
document which would be the subject of questioning. Wright-
Pierce responded to the motion to quash. The court held a
hearing on the motion on April 25, 2014, and all parties were
heard.
Discussion
In support of the motion to quash, the NHDES contends that
Stewart has no relevant knowledge of the case that could not be
obtained from other sources and that it would cause an undue
burden on the NHDES for him to testify at trial. In response,
Wright-Pierce contends that Stewart could potentially offer
information that it could not elicit from other sources. Under Federal Rule of Civil Procedure 45, a court “must
quash or modify a subpoena that subjects a person to an undue
burden.” Fed. R. Civ. P. 45(d)(3)(iv). When a party has
subpoenaed a government employee to testify, the court must
“determine whether it would be an undue burden for the government
to produce [a] requested employee[,] and to weigh that burden
against the [parties’] need for the testimony.” Solomon v.
Nassau County, 274 F.R.D. 455, 458 (E.D.N.Y. 2011). In
considering a motion to quash such a subpoena, the court may
consider “not only the direct burden caused by the testimony, but
also the government’s serious and legitimate concern that its
employee resources not be commandeered into service by private
litigants to the detriment of the smooth functioning of
government operations.” Id. at 460; see also Cusamano v.
Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (“[C]oncern
for the unwanted burden thrust upon non-parties is a factor
entitled to special weight in evaluating the balance of competing
needs.”).
In addition, if a party seeking information from a nonparty
can easily obtain the same information elsewhere, that factor
weighs in favor of granting a motion quash the subpoena. See
Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 66 (1st Cir.
2003); see also Precourt v. Fairbank Reconstruction Corp., 280
F.R.D. 462, 467 (D.S.D. 2011) (“If the party seeking the
information can easily obtain the same information without
burdening the nonparty, the court will quash the subpoena.”).
2 Thus, “[d]epartment heads and similarly high-ranking officials
should not ordinarily be compelled to testify unless it has been
established that the testimony to be elicited is necessary and
relevant and unavailable from a lesser ranking officer.”
Halderman v. Pennhurst State School and Hosp., 96 F.R.D. 60, 64
(D.C. Pa. 1982). Further, “[i]t is within the court’s discretion
to quash a subpoena where the testimony or information sought is
irrelevant.” Griffiths v. Ohio Farmers Ins. Co., 2010 WL
2639913, at *1 (N.D. Ohio June 29, 2010); see also W Holding Co.,
Inc. v. Chartis Ins. Co. of Puerto Rico, 2013 WL 6001087, at *1
(D.P.R. Nov. 12, 2013) (“In determining whether a subpoena
imposes an ‘undue burden,’ the court considers . . . relevance
. . . .”).
The NHDES represented that the subpoena should be quashed
because Stewart has not been deposed in this case and because he
has had little involvement in the matter. It further represented
that Stewart’s limited knowledge of the issues related to the
case can be obtained from other sources, including other NHDES
employees who will testify in the case and NHDES documents. In
addition, the NHDES represented that the testimony sought from
Stewart involved pre-decisional, deliberative communications
between Stewart and another NHDES employee, and therefore is
protected by the deliberative process privilege.
In its objection to the motion to quash, Wright-Pierce
stated that it expects Stewart to testify regarding conversations
he had with Wright-Pierce “concerning the permitability and
3 remediability of the RIB system,” and that it “expects that Mr.
Stewart’s testimony may differ from some or all of the testimony
the Town intends to elicit from other NH DES representatives.”
Wright-Pierce further stated that “no other NH DES
representatives were privy to these conversations and none are
memorialized in any documentation.” In addition, Wright-Pierce
argued that it “does not seek evidence of NH DES’s deliberative
process,” and contended that New Hampshire does not recognize a
deliberative process privilege in any event.
In addition, Wright-Pierce submitted several bullet proffers
of the testimony it intends to elicit from Stewart. The bullet
proffers included Stewart’s opinions regarding current and
potential characteristics of the RIB site and Wolfeboro’s
compliance with various NHDES permits.
In its response to Wright-Pierce’s objection, the NHDES
submitted an affidavit from Stewart, in which Stewart avers that
he has no recollection of meeting with anyone from Wright-Pierce
without another NHDES employee present, and that Stewart does not
recall any discussion concerning the Wolfeboro RIB system with
anyone from Wright-Pierce. The NHDES also stated in its response
that the parties possess several documents indicating the NHDES’s
position regarding the permitability and/or remediability of
Wolfeboro’s RIB system. Although not specifically noted in the
response or Stewart’s affidavit, the NHDES represented at the
hearing on its motion that Stewart has never been to the
Wolfeboro RIB site.
4 As has been established through Stewart’s affidavit, the
parties’ filings, and representations at the hearing, Stewart has
not had any conversations with Wright-Pierce in which another
NHDES employee was not present.1 Although Stewart has edited
letters and attended internal NHDES meetings concerning the
Wolfeboro RIB site in his supervisory role, Wright-Pierce has not
identified any relevant or admissible information that Stewart
might offer if allowed to testify that cannot be obtained from
other NHDES witnesses or documents. Therefore, to the extent
Wright-Pierce seeks any relevant and admissible testimony from
Stewart, Wright-Pierce can obtain the same information from other
NHDES employees and/or NHDES documents and, therefore, Stewart
should not be compelled to testify.2
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Wolfeboro v. Wright-Pierce 12-CV-130-JD 4/30/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Town of Wolfeboro
v. Civil No. 12-cv-130-JD Opinion No. 2014 DNH 094 Wright-Pierce
MEMORANDUM OPINION
Defendant, Wright-Pierce, served a trial subpoena on Harry
Stewart, the Director of the Water Division for the New Hampshire
Department of Environmental Services (“NHDES”), requiring his
appearance and testimony in this case. The NHDES moved to quash
the subpoena. The court ordered Wright-Pierce to respond to the
motion and to provide bullet proffers of the testimony it
intended to elicit from Stewart, as well as to identify each
document which would be the subject of questioning. Wright-
Pierce responded to the motion to quash. The court held a
hearing on the motion on April 25, 2014, and all parties were
heard.
Discussion
In support of the motion to quash, the NHDES contends that
Stewart has no relevant knowledge of the case that could not be
obtained from other sources and that it would cause an undue
burden on the NHDES for him to testify at trial. In response,
Wright-Pierce contends that Stewart could potentially offer
information that it could not elicit from other sources. Under Federal Rule of Civil Procedure 45, a court “must
quash or modify a subpoena that subjects a person to an undue
burden.” Fed. R. Civ. P. 45(d)(3)(iv). When a party has
subpoenaed a government employee to testify, the court must
“determine whether it would be an undue burden for the government
to produce [a] requested employee[,] and to weigh that burden
against the [parties’] need for the testimony.” Solomon v.
Nassau County, 274 F.R.D. 455, 458 (E.D.N.Y. 2011). In
considering a motion to quash such a subpoena, the court may
consider “not only the direct burden caused by the testimony, but
also the government’s serious and legitimate concern that its
employee resources not be commandeered into service by private
litigants to the detriment of the smooth functioning of
government operations.” Id. at 460; see also Cusamano v.
Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (“[C]oncern
for the unwanted burden thrust upon non-parties is a factor
entitled to special weight in evaluating the balance of competing
needs.”).
In addition, if a party seeking information from a nonparty
can easily obtain the same information elsewhere, that factor
weighs in favor of granting a motion quash the subpoena. See
Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 66 (1st Cir.
2003); see also Precourt v. Fairbank Reconstruction Corp., 280
F.R.D. 462, 467 (D.S.D. 2011) (“If the party seeking the
information can easily obtain the same information without
burdening the nonparty, the court will quash the subpoena.”).
2 Thus, “[d]epartment heads and similarly high-ranking officials
should not ordinarily be compelled to testify unless it has been
established that the testimony to be elicited is necessary and
relevant and unavailable from a lesser ranking officer.”
Halderman v. Pennhurst State School and Hosp., 96 F.R.D. 60, 64
(D.C. Pa. 1982). Further, “[i]t is within the court’s discretion
to quash a subpoena where the testimony or information sought is
irrelevant.” Griffiths v. Ohio Farmers Ins. Co., 2010 WL
2639913, at *1 (N.D. Ohio June 29, 2010); see also W Holding Co.,
Inc. v. Chartis Ins. Co. of Puerto Rico, 2013 WL 6001087, at *1
(D.P.R. Nov. 12, 2013) (“In determining whether a subpoena
imposes an ‘undue burden,’ the court considers . . . relevance
. . . .”).
The NHDES represented that the subpoena should be quashed
because Stewart has not been deposed in this case and because he
has had little involvement in the matter. It further represented
that Stewart’s limited knowledge of the issues related to the
case can be obtained from other sources, including other NHDES
employees who will testify in the case and NHDES documents. In
addition, the NHDES represented that the testimony sought from
Stewart involved pre-decisional, deliberative communications
between Stewart and another NHDES employee, and therefore is
protected by the deliberative process privilege.
In its objection to the motion to quash, Wright-Pierce
stated that it expects Stewart to testify regarding conversations
he had with Wright-Pierce “concerning the permitability and
3 remediability of the RIB system,” and that it “expects that Mr.
Stewart’s testimony may differ from some or all of the testimony
the Town intends to elicit from other NH DES representatives.”
Wright-Pierce further stated that “no other NH DES
representatives were privy to these conversations and none are
memorialized in any documentation.” In addition, Wright-Pierce
argued that it “does not seek evidence of NH DES’s deliberative
process,” and contended that New Hampshire does not recognize a
deliberative process privilege in any event.
In addition, Wright-Pierce submitted several bullet proffers
of the testimony it intends to elicit from Stewart. The bullet
proffers included Stewart’s opinions regarding current and
potential characteristics of the RIB site and Wolfeboro’s
compliance with various NHDES permits.
In its response to Wright-Pierce’s objection, the NHDES
submitted an affidavit from Stewart, in which Stewart avers that
he has no recollection of meeting with anyone from Wright-Pierce
without another NHDES employee present, and that Stewart does not
recall any discussion concerning the Wolfeboro RIB system with
anyone from Wright-Pierce. The NHDES also stated in its response
that the parties possess several documents indicating the NHDES’s
position regarding the permitability and/or remediability of
Wolfeboro’s RIB system. Although not specifically noted in the
response or Stewart’s affidavit, the NHDES represented at the
hearing on its motion that Stewart has never been to the
Wolfeboro RIB site.
4 As has been established through Stewart’s affidavit, the
parties’ filings, and representations at the hearing, Stewart has
not had any conversations with Wright-Pierce in which another
NHDES employee was not present.1 Although Stewart has edited
letters and attended internal NHDES meetings concerning the
Wolfeboro RIB site in his supervisory role, Wright-Pierce has not
identified any relevant or admissible information that Stewart
might offer if allowed to testify that cannot be obtained from
other NHDES witnesses or documents. Therefore, to the extent
Wright-Pierce seeks any relevant and admissible testimony from
Stewart, Wright-Pierce can obtain the same information from other
NHDES employees and/or NHDES documents and, therefore, Stewart
should not be compelled to testify.2
1 At the hearing on the motion, counsel for Wright-Pierce appeared to concede that Paul Heirtzler, another NHDES employee who will be called at trial, attended the meeting with Stewart and Wright-Pierce concerning the Wolfeboro RIB site. 2 At the hearing, counsel for Wright-Pierce suggested that even though Heirtzler attended the relevant meeting with Stewart and Wright-Pierce and authored letters discussing the permitability and remediability of the Wolfeboro RIB site, Stewart’s testimony could contradict Heirtzler’s to the extent Stewart had a different recollection of the meeting or edited Heirtzler’s letter in accordance with his supervisory role. “While the expression ‘fishing expedition’ has been generally denigrated as a reason for objecting to discovery, in some situations, such as the one at hand, it remains apt . . . . A litigant may not engage in merely speculative inquiries under the guise of relevant discovery.” Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1327-28 (1st Cir. 1990). Even if such evidence could be relevant, Stewart had only limited involvement in this matter and limited recollection of the meeting.
5 In view of the law applicable to this subpoena, the motion
to quash was granted substantially for the reasons set forth by
the NHDES in its memoranda.3
SO ORDERED.
____________________________ Joseph A. DiClerico, Jr. United States District Judge
April 30, 2014
cc: Rhian M.J. Cull, Esq. John W. Dennehy, Esq. Daniel Miville Deschenes, Esq. Patricia B. Gary, Esq. Kelly Martin Malone, Esq. Mary E. Maloney, Esq. Seth Michael Pasakarnis, Esq. T. David Plourde, Esq.
3 Because Wright-Pierce did not seek any information from Stewart implicating pre-decisional, deliberative communications between Stewart and another NHDES employee, the court need not decide whether New Hampshire recognizes the deliberative process privilege or whether that privilege would apply here.