Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01009-EWN-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01009-EWN-MEH MARIAN J. BARCIKOWSKI, Plaintiff, v. SUN MICROSYSTEMS, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL ______________________________________________________________________________

Sun Microsystems, Inc. ("Sun") submits the following Response to Plaintiff's Motion to Compel Defendant's Custodian of Records to Produce Documents Listed in Subpoena: 1. Plaintiff's Motion to Compel should be denied because the subpoena to which it

relates it is an untimely attempt to obtain discovery. 2. A Rule 45 subpoena used to obtain discovery from another party must be filed

and served prior to the discovery deadline in the case. A party may not use a Rule 45 subpoena after the discovery cut-off to obtain materials that could have been produced during discovery. See Rice v. United States, 164 F.R.D. 556, 558 (N.D.Ok. 1995) ("by setting a discovery deadline the Court intended to limit the time during which the parties could serve discovery requests or invoke the Court's subpoena power to obtain documents from third parties."); Mortgage Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562, 566 (W.D.N.C. 2002) ("the Court adopts the rule followed by the majority of jurisdictions and holds that a Rule 45 subpoena does in fact constitute discovery."); Dreyer v. Gacs, Inc., 204 F.R.D. 120, 122-3 (N.D.Ind. 2001) (holding

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that a Rule 45 subpoena constitutes discovery and is subject to the time constraints that apply to other methods of formal discovery). 3. Here, Plaintiff's subpoena unquestionably constitutes an attempt to obtain

discovery. In the subpoena, Plaintiff does not request any specifically identified documents but asks Defendant to produce "all personnel policies" in certain categories. Plaintiff is clearly seeking additional information now because he neglected to do so before the discovery deadline. Plaintiff has not requested that discovery be reopened or offered any explanation for his failure to request these categories of documents during discovery. Accordingly, Plaintiff's subpoena constitutes an untimely discovery request, and Plaintiff's Motion to Compel should be denied. 4. Plaintiff apparently contends that Defendant did not properly preserve its

objections to the subpoena because it did not file a motion to quash or a motion for protective order. Plaintiff is wrong. Rule 45 expressly states that a "person"--not a "non-party"--served with a subpoena may file a written objection to the subpoena within 14 days after service. F.R.C.P. 45(c)(2)(B). In the event such an objection is filed, the "person" served is not required to produce materials requested by the subpoena unless and until the requesting party obtains an order to compel production. Id. That is exactly what has occurred here. Defendant properly made a timely, written objection to the Subpoena and complied with Rule 45.1 5. The untimely discovery requests set forth in the Plaintiff's subpoena are also

objectionable because they are vague and overbroad and, as such, seek documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

1 However, to put to rest what should be a non-issue, defendant hereby moves for an order quashing the subpoena on the grounds set forth in its
Objection to that subpoena and in this response to the plaintiff's motion to compel.

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6.

Paragraph 1 of Attachment A to the subpoena demands the production of "all"

personnel policies of Defendant effective between January 2 and February 12, 2002 "concerning or pertaining to disciplinary actions." This request seeks a large, vaguely defined category of documents which consists, for the most part, of documents unrelated to any actions taken by the defendant with respect to the plaintiff's employment. Plaintiff should not be allowed to divert Defendant's attention from trial preparation to track down documents that could have been requested during discovery, particularly when most, if not all, of the requested documents do not relate to Plaintiff or his one remaining claim. 7. Paragraph 2 of Attachment A to the subpoena demands the production of "all

personnel policies" of Defendant "concerning or pertaining to administrative leave." That request for production of documents is similarly objectionable. More to the point, however, plaintiff's counsel has been specifically informed in Defendant's Response and Objection to Subpoena that Defendant has no responsive documents to this request other than what has already been produced during discovery. Accordingly, there is nothing to compel on this issue. WHEREFORE, for all of the above reasons, Defendant respectfully requests an order from the Court denying Plaintiff's Motion to Compel Defendant's Custodian of Records to Produce Documents Listed in Subpoena (or quashing Plaintiff's subpoena) and awarding Defendant's its attorneys' fees and costs incurred in responding to the Subpoena and Motion.

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Respectfully submitted this 5th day of April, 2005. s/ Steven J. Merker ___________________________________ Steven J. Merker R. Stephen Hall DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 5, 2006, I caused the foregoing document, titled DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL, to be electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address: Barry D. Roseman, Esq. Roseman & Kazmiereski, L.L.C. 1120 Lincoln Street, Suite 1607 Denver, CO 80203 [email protected] s/ Steven J. Merker ___________________________________ Steven J. Merker R. Stephen Hall DORSEY & WHITNEY LLP 370 17th Street, Suite 4700 Denver, Colorado 80202 Telephone: (303) 629-3400 Facsimile: (303) 629-3450 E-mail: [email protected]

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