Free Response to Objection to Appeal of Magistrate Judge Decision - District Court of Colorado - Colorado

Case 1:04-cv-01271-EWN-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1271-EWN-BNB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA, and JENELLE BORDEN, in their individual capacities, Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION REGARDING MAGISTRATE'S DENIAL OF MOTION FOR SUBPOENA ______________________________________________________________________________ Defendants James A. Montoya and Jenelle Borden, by and through their counsel, Hall & Evans, L.L.C., in response to Plaintiff's Appeal [Objection] to Judge Nottingham of Magistrates Refusal to Issue Plaintiff's Civil Subpoena(s) ("Objection"), state as follows: On April 12, 2006, Plaintiff sent a letter to the Court seeking a subpoena duces tecum to be issued to the clerk of the District Court of Bent County, Colorado, to produce portions of transcripts of proceedings conducted in People v. Hawkinson, 04CR011, Bent County District Court, a state court criminal prosecution. The Court referred the matter to Magistrate Judge Boyd Boland, who construed the letter as a motion to issue a subpoena ("Motion"). On April 26, 2006, Plaintiff submitted a Memorandum of Plaintiff's Legal Authorities and Submitted Evidence in support of his request.

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On May 4, 2006, the Court held a hearing on the Motion. 1 Defendants did not object to Plaintiff's Motion, but questioned how Plaintiff would pay for the transcripts. The Court took the matter under advisement. In an Order of May 4, 2006, the Court denied Plaintiff's request. The Court concluded that Plaintiff, "who is proceeding in forma pauperis, is attempting to obtain copies of state court transcripts free of charge." Order, May 4, 2006, pp. 3-4. Although Plaintiff may subpoena documents from third parties in a federal court action, "he has no right to obtain documents through discovery free of charge . . . his status as an in forma pauperis litigant notwithstanding." Id., at p. 4. The Court ordered that no subpoena would issue "commanding the production of documents from a third party until the plaintiff provides proof that he has made arrangements for the payment of any costs associated with the preparation or copying of those documents, or obtained the agreement of the third party to waive the payment of those costs." Id. On May 30, 2006, Plaintiff filed a Motion For Magistrate to Reconsider His May 5, 2006 Order with Alternative Arrangements to Secure Transcripts. Defendants filed a Response to the Motion on June 1, 2006. Plaintiff re-filed his Motion, along with an Addendum, on June 2,

2006, to which Defendants responded relying on the arguments made in their Response of June 1, 2006. On June 7, 2006, Plaintiff filed a Reply, and on June 8, 2006, Magistrate Judge Boland denied Plaintiff's Motion for reconsideration. On June 16, 2006, Plaintiff filed his Objection.

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I.

Magistrate Judge Boland did not abuse his discretion in refusing to order the production of transcripts at no cost to Plaintiff In his Objection, Plaintiff argues that Magistrate Judge Boland abused his discretion in

failing to issue the requested subpoena pursuant to Fed. R. Civ. P. 45. Because Rule 45 does not require that persons subject to subpoenas not be permitted to recover the costs of production, Magistrate Judge Boland did not abuse his discretion in denying Plaintiff's Motion. First, Rule 45 does not require that a party responding to a subpoena bear the burden of the costs of production. A subpoena duces tecum can only require production of the documents for inspection. The party requesting a subpoena duces tecum is not entitled to a copy of any document without payment of an appropriate copy cost, if required. Windsor v. Martindale, 175 F.R.D. 665, 672 (D.Colo. 1997). In addition, the United States Supreme Court has observed "the presumption is that the responding party must bear the expense of complying with discovery requests, but he may invoke the district court's discretion under Rule 26 (c) to grant orders protecting him from `undue burden or expense' in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). The cost of responding to a subpoena duces tecum should not be shifted to a third party that receives no benefit from the work involved. Id. Unlike a defendant that performs the work necessary to respond to a subpoena duces tecum and receives at least some degree of benefit to his case, Bent County District Court is not at all benefited by transcribing, photocopying and mailing the trial transcripts to Plaintiff. See In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 669 F.2d 620, 623 (10th Cir. 1982) (district court should not be reluctant to place the costs of discovery upon the party deriving benefit therefrom). See also Dart Industries Co. v. Westwood Chemical Co., 649 F.2d -3-

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646, 649 (9th Cir. 1980) (restriction may be necessary when a nonparty is the target of discovery to protect the third party from harassment, inconvenience, or disclosure of confidential documents). Second, the Magistrate Judge's Order did not deny Plaintiff the ability to subpoena the Bent County District Court transcripts, but instead set a condition that Plaintiff first provide proof that he has arranged for payment of the cost of transcription and production or has obtained the Bent County District Court's waiver of payment of those costs. Order, May 4, 2006, p. 4. II. Magistrate Judge Boland did not abuse his discretion in requiring Plaintiff to provide proof of prepayment of the cost of production or of waiver of the cost by Bent County District Court Plaintiff argues that Magistrate Judge Boland abused his discretion "by establishing a standard of proof for Plaintiff that is not based in case law, Federal Rules of Civil Procedures, nor of any other party for the issuance of Plaintiff's requested subpoena(s)." Objection, p. 4. Plaintiff misunderstands the discretion of a magistrate judge in matters of discovery. As a general rule, discovery rulings are within the broad discretion of the trial court. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1386 (10th Cir. 1994) (citing Willner v. Budig, 848 F.2d 1032, 103536 (10th Cir. 1988), cert. denied sub nom. Willner v. University of Kansas, 488 U.S. 1031 (1989)). The trial court's decision on discovery matters "will not be disturbed unless the

appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. (citing United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). The Magistrate Judge did not make "a clear error of judgment," nor did he exceed "the bounds of permissible choice in the circumstances." The Magistrate Judge did not preclude

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Plaintiff from obtaining a subpoena or obtaining a copy of the transcript of his criminal trial for fraud. The Magistrate Judge imposed a condition, soundly within his discretion, that the Plaintiff show he has paid the Bent County District Court for its expenses in having the trial tapes transcribed, and the transcription photocopied and mailed to Plaintiff. State trial courts do not have unlimited budgets that can sustain the costs of producing discovery, especially given the large number of parties who pass through their courtrooms and who may seek records ad nauseam were they to be provided for free. Fed. R. Civ. P. 26(b)(2) provides that: The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the important of the issues at stake in the litigation, and the importance of the proposed discovery in resolving issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c). Clearly, the Magistrate Judge has the discretion to require Plaintiff to pay for the cost of the trial transcripts he seeks in his case. Plaintiff's claim that Magistrate Judge Boland "made up and placed upon the Plaintiff" a standard of proof not found in the Federal Rules of Civil Procedure or case law is completely unfounded and misunderstands the bounds of judicial discretion.

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DATED this 22nd day of June, 2006. Respectfully submitted,

_______________________________ Awilda R. Marquez, Esq. Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 22nd day of June, 2006, I electronically filed the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION REGARDING MAGISTRATE'S DENIAL OF MOTION FOR SUBPOENA with the Clerk of the Court using the CM/ECF system and hereby certify that I have mailed the foregoing document to the following non-CM-ECF participant by depositing same in the U.S. Mail, postage prepaid, and address as follows: Patrick M. Hawkinson Reg. No. 62702 Arkansas Valley Correctional Facility PO Box 1000 Crowley, CO 81034

s/ _____________________________

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