Free Response to Motion - District Court of Colorado - Colorado

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

Document 124

Filed 06/01/2006

Page 1 of 4

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 MOTION FOR MAGISTRATE TO RECONSIDER HIS MAY 5, 2006 ORDER WITH ALTERNATIVE ARRANGEMENTS TO SECURE TRANSCRIPTS ______________________________________________________________________________ Defendants James A. Montoya and Jenelle Borden, by and through their counsel, Hall & Evans, L.L.C., in response to Plaintiff's Motion for Magistrate to Reconsider his May 5, 2006 Order with Alternative Arrangements to Secure Transcripts, entitled by the Court at filing as "Appeal of Magistrate Judge Decision to District Court" ("Appeal"), state as follows: Plaintiff appeals the decision of Magistrate Judge Boyd Boland denying Plaintiff's request for a subpoena duces tecum, without necessity of testimony, for a copy of portions of the transcript of Plaintiff's criminal trial in Case Number 2004 CR 11, Bent County District Court, for attempted theft and offering a false instrument for recording with intent to defraud. Upon referral, Magistrate Boland denied Plaintiff's request for a subpoena without proof to the Court from Plaintiff that arrangements had been made for payment of any costs associated with the

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

Document 124

Filed 06/01/2006

Page 2 of 4

preparation and copying of the transcript, or that the Bent County District Court had agreed to waive the payment of costs. In his Appeal Plaintiff offers two "alternatives for payment." First, Plaintiff asserts, perhaps in an assumption without factual support, that the "requested transcripts have been transcribed, produced and made part of the Bent County District Court record in case number 04CR11." Appeal, at p. 2. He then proposes that the Bent County District Court Clerk, Vicki Morlan, "simply" send the transcripts to him at his prison facility. In the first alternative, Plaintiff fails to provide proof of who will pay for the transcription and/or photocopying of the transcripts that he proposes be sent to him at his prison facility. He also proposes that the District Court pay the approximately $15.00 - $20.00 postage cost for the mailing, arguing that such a requirement is not an "undue burden" under Fed. R. Civ. P. 45(c)(1) and 26(g)(2)(c). Both the Supreme Court and the Tenth Circuit have held that the cost of responding to a subpoena duces tecum should not be shifted to a third party (such as the Bent County District Court here) that receives no benefit from the work involved. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). Such is the situation in the instant case. Unlike a defendant that performs the work necessary to respond to a subpoena duces tecum in his own case and receives at least some degree of benefit, the third party here is not at all benefited by transcribing, photocopying and mailing the trial transcripts to Plaintiff. In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 669 F.2d 620, 623 (10th Cir. 1982). See also Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir. 1980).

-2-

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

Document 124

Filed 06/01/2006

Page 3 of 4

In his second alternative, in another apparent assumption without factual support, Plaintiff suggests that the Colorado Attorney General's Office presumably "will have copies of Plaintiff's requested transcripts in their custody in the near future (approximately 3-6 months) for the criminal appeal of case number 04CR11." Because the Attorney General's Office is a state agent, Plaintiff asserts it can be ordered or subpoenaed to produce copies of transcripts in their possession. As in the case of Bent County District Court, however, the Attorney General's Office is also a third party to this case and, presuming it even has the transcripts, would benefit nothing from the cost of photocopying and mailing copies to Plaintiff. In addition, because the Attorney General's Office is not the custodian of the trial transcript, the copies of the transcript that it may (or may not) cannot be authenticated by them. The fact is that the transcription and photocopying of trial transcripts is a costly endeavor for anyone to undertake, whether a party to the case or not. Plaintiff fails to give sufficient reason why the cost of such an endeavor should be shifted to others for use in a civil case for damages that he chose to file in this Court. Dated this 1st day of June, 2006. Respectfully submitted, s/ Awilda R. Marquez__________ Awilda R. Marquez, Esquire Hall & Evans, LLC 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 E-Mail: [email protected] ATTORNEYS FOR DEFENDANTS

-3-

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

Document 124

Filed 06/01/2006

Page 4 of 4

CERTIFICATE OF MAILING I HEREBY CERTIFY that on the 1st day of June, 2006, I mailed a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR MAGISTRATE TO RECONSIDER HIS MAY 5, 2006 ORDER WITH ALTERNATIVE ARRANGEMENTS TO SECURE TRANSCRIPTS, correctly addressed, postage prepaid, in the U.S. Mail to the following: Patrick M. Hawkinson, # 62702 Arkansas Valley Correctional Facility PO Box 1000 Crowley, CO 81034 s/ Suzanne N. Swanson, legal secretary Awilda R. Marquez Hall & Evans, LLC 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 E-Mail: [email protected] Attorneys for Defendants

-4-