United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Shari Ferreria's
(“Plaintiff”) Motion to Quash Defendant's
Third Party Subpoena (“Motion to Quash, ” Doc.
250) filed on January 19, 2018. Defendants filed a timely
Response (Doc. 252) on February 2, 2018. Plaintiff then filed
its Reply (Doc. 253) on February 9, 2018. The Court now rules
on the Motion.
brought this action on behalf of decedent Zachary Daughtry in
her capacity as personal representative of the estate against
Defendants, following the decedent's death on July 20,
2014. (Doc. 76 at 2). The Court explained the background
facts in its Order on Defendants' Motion for Summary
Judgment and its Order on Defendants' Motion to Dismiss,
so the Court will not repeat them here. (See Doc.
244 at 2; Doc. 76 at 2). On February 21, 2016, the Court
entered a scheduling order that set a deadline for discovery
in this case of February 21, 2017. (Doc. 26). The Court later
extended the discovery deadline to June 30, 2017. (Doc. 163).
Despite the fact that this deadline had passed, on January
12, 2018, Defendants served a subpoena on the Maricopa County
Sherriff's Office (“MCSO”). (Doc. 250-2). The
subpoena sought production of “Nice Vision video
recordings of Ryan Bates (TO84946) and his defense team, that
were produced and reviewed by Bates' RTC doctor”
across a range of dates, and set a deadline of January 22,
2018, for compliance. (Id.). Plaintiff received a
copy of this subpoena on January 17, 2018, and promptly filed
the pending Motion to Quash. (Doc. 250 at 1-2).
MOTION TO QUASH
primary way for a party to request that a nonparty produce
documents is to use a subpoena under Federal Rule of Civil
Procedure (“Rule”) 45. Internmatch, Inc. v.
Nxtbigthing, LLC, 2016 WL 1212626, at *1 (N.D. Cal.
2016). Rule 45 subpoenas are subject to the more general
provisions of Rule 26, which outline the permissible scope of
discovery. R. Prasad Indus. v. Flat Irons Envtl. Sols.
Corp., 2014 WL 2804276, at *2 (D. Ariz. 2014). Because
of this, “courts have found that Rule 45 subpoenas
sought after the discovery cut-off are improper attempts to
obtain discovery beyond the discovery period.”
Internmatch, Inc., 2016 WL 1212626, at *1 (N.D. Cal.
2016) (first citing Rice v. United States, 164
F.R.D. 556, 557-59 (N.D. Okla. 1995); and then citing FTC
v. Netscape Commc'ns Corp., 196 F.R.D. 559, 560-61
(N.D. Cal. 2000)); see also Joseph P. Carroll Ltd. v.
Baker, 2012 WL 1232957 at *2 (S.D.N.Y. 2012)
(“[I]t is black letter law that parties may not issue
subpoenas pursuant to Federal Rule of Civil Procedure 45
‘as a means to engage in discovery after the discovery
deadline has passed.'”) (citations
omitted). However, Rule 45 subpoenas “may be
employed in advance of trial and outside of a discovery
deadline for the limited purposes of memory refreshment,
trial preparation, or to secure for the use at trial original
documents previously disclosed by discovery.”
Circle Grp., L.L.C. v. Se. Carpenters Reg'l
Council, 836 F.Supp.2d 1327, 1352. (N.D.Ga. 2011).
is no question in this case that Defendants issued their
subpoena after the close of discovery. (Doc. 250-1).
Therefore, this Court must quash the subpoena unless it falls
within one of the limited exceptions to this rule or
Defendants establish an “excuse for their
tardiness.” See Circle Grp., L.L.C., 836
F.Supp.2d at 1352; MedImmune, LLC v. PDL Biopharma,
Inc., 2010 WL 1266770, at *1 (N.D. Cal. 2010).
Defendants do not allege that the subpoena is being used for
one of the limited purposes described above, and instead
attempt to excuse the late subpoena on two grounds. First,
Defendants claim they were unaware that videos existed until
after discovery had concluded. (Doc. 252 at 4). Second,
Defendants argue that because Plaintiff made a public records
request on January 12, 2018, the motion should be denied
because Plaintiff has “unclean hands.”
(Id. at 5).
argue that “where the information subpoenaed was
unknown during discovery, service of a subpoena after the
close of discovery is appropriate.” (Id. at 4
(citing Integra Life Servs. I, Ltd. v. Merck KGaA,
190 F.R.D. 556, 561 (S.D. Cal. 1999))). Defendants briefly
state that they did not know about the existence of the
videos sought by the subpoena until the videos were mentioned
in an order of the Maricopa County Superior Court, filed on
December 20, 2017. (Doc. 252 at 4); (Doc. 252-1 at 2-3). But,
courts generally require a party to actually explain
why it was unaware of the subpoenaed material before excusing
a subpoena issued after the discovery deadline, and a single
statement-absent any explanatory facts-does not satisfy this
standard. E.g., Hickey v. Myers, 2013 WL
2418252, at *9 (N.D.N.Y. 2013) (stating that the fact that
the report that prompted the subpoena was issued after the
discovery deadline did not “excuse Plaintiff's
failure to request this information during routine
discovery” because “Plaintiff knew the importance
of obtaining this information prior to the issuance of the
citation”); MedImmune, 2010 WL 1266770, at
*1-2 (finding no good cause to excuse tardy subpoena even
though a party alleged that it did not realize the importance
of the subpoenaed documents until after reviewing notes
produced on the last day of the discovery period). Defendants
offer no explanation whatsoever about why they did not know
of the existence of the subpoenaed videos, a tenuous claim
considering the fact that they were held by MCSO and
Defendants in this case include Maricopa County and the
Sherriff in his individual capacity. See, e.g.,
Puritan Inv. Corp. v. ASLL Corp., 1997 WL 793569, at
*2 (D. Penn. 1997) (granting a motion to quash where the
party “does not and credibly could not aver that it was
unaware of the possible existence of the subpoenaed documents
before the discovery deadline”) (citing McNerney v.
Archer Daniels Midland Co., 164 F.R.D. 584, 588
(W.D.N.Y. 1995)). The Court also finds the fact that
Defendants “were given ample opportunity to complete
discovery before trial” in this case is a further
factor weighing against them. See Ghandi v. Police
Dep't, 747 F.2d 338, 354 (6th Cir. 1984). Finally,
the Court agrees with the statement in Rice that,
“[i]f Defendant[s] believed the information to be of
importance to its case, [they] could have attempted to show
good cause for modifying the [discovery] deadlines.”
Rice, 164 F.R.D. at 558. Therefore, the Court finds
that Defendants fail to establish an excuse for their tardy
Defendants' second argument, the Court finds that the
“clean hands” doctrine does not apply here. The
maxim that “he who comes into equity must come with
clean hands” is a “self-imposed ordinance that
closes the doors of a court of equity to one tainted with
inequitableness or bad faith relative to the matter in which
he seeks relief.” Precision Instrument Mfg. Co. v.
Automotive Maint. Mach. Co., 324 U.S. 806, 814 (1945).
Necessarily, this doctrine applies only when a plaintiff
seeks an equitable remedy. See Adler v. Fed. Republic of
Nigeria, 219 F.3d 869, 877 (9th Cir. 2000) (stating that
the clean hands doctrine applies to “plaintiffs
seeking equitable relief”) (emphasis added)
(citing Ellenburg v. Brockway, Inc., 763 F.2d 1091,
1097 (9th Cir. 1985)). Here, Plaintiff does not seek an
equitable remedy, but instead seeks to quash a tardy
subpoena-a remedy the Rules provide to her. See Fed.
R. Civ. P. 45(d)(3). Therefore, the Court rejects Defendants
contention that Plaintiff is barred from relief because of
the "clean hands" doctrine.
the Court finds that Defendants improperly issued their
subpoena after the close of discovery and have failed to
establish an excuse to justify their tardiness.
on the foregoing, IT IS ORDERED that
Plaintiffs Motion to Quash (Doc. 250) is
GRANTED. The Clerk of the Court ...