United States District Court, M.D. North Carolina
JAMES J. CARTER, Plaintiff,
ARCHDALE POLICE DEPARTMENT, et al., Defendants.
MEMORANDUM OPINION AND ORDER
L. PATRICK AULD, Magistrate Judge.
This matter comes before the Court on an Objection to Subpoena and Motion to Quash filed by Assistant Clerk of Superior Court Richard Haynes (Docket Entry 63). (See Docket Entry dated May 2, 2014.) For the reasons that follow, the instant Motion will be granted in part and denied in part, in that the Court will modify the subpoena at issue to require production only of a copy of the contents of the state court file for case number 12CR53047.
Plaintiff, proceeding pro se, filed a Complaint alleging violations of 42 U.S.C. § 1983 based largely on events related to a state court criminal proceeding identified as case number "12CRS53047" (Docket Entry 1 at 2 (¶ 1(a))). (See id. at 2-32.) After the discovery period commenced (see Text Order dated Mar. 25, 2014), Plaintiff apparently obtained from a Deputy Clerk of this Court a subpoena, bearing an issuance date of April 7, 2014, directed to "Randolph County District Court Clerk, " with a compliance deadline of noon on May 6, 2014 (Docket Entry 63-1 at 1). The subpoena demands production of "[a]ll documents, records, Court Files, Orders, transcripts, recordings, communications, emails, voicemails, or text messages related to Case 12CR53047 and/or a hearing scheduled and/or held in Randolph County District Court in July 2012 in Case 12CR53047." (Id. at 2.)
On April 22, 2014, Assistant Clerk Haynes, through counsel and via the Court's CM/ECF system, filed the instant Motion. (Docket Entry 63.) A document appended to the instant Motion, bearing the letterhead of the Randolph County Clerk of Superior Court, as well as the signature of Assistant Clerk Haynes, states that the Office of the Randolph County Clerk of Superior Court received the above-described subpoena "on April 8th... in regular first class mail." (Docket Entry 63-2 at 1; see also Docket Entry 67 at 2-3 (setting out Plaintiff's assertion that his wife served the subpoena in question "on April 7, 2014, " but without reference to manner of service).) According to Assistant Clerk Haynes, because the subpoena "dealt with a Randolph County criminal case it was turned over to [him]." (Docket Entry 63-2 at 1.)
The instant Motion's Certificate of Service mistakenly states that service thereof occurred on Plaintiff because the CM/ECF system "will send notification of such filing to" him. (Docket Entry 63 at 3.) In fact (as reflected in the electronic receipt created when Assistant Clerk Haynes filed the instant Motion), because Plaintiff proceeds pro se and does not have permission to act as an electronic-filer, the CM/ECF system did not forward Assistant Clerk Haynes's instant Motion to Plaintiff. (See Docket Entry 63, Notice of Elec. Filing.) Plaintiff, however, received actual notice of the instant Motion and the entire contents thereof no later than April 23, 2014, because, on that date, the Court directed "the Office of the Clerk [of this Court to] contact Plaintiff at the telephone number he ha[d] provided... [to] inquire if he ha[d] received [the instant Motion] and... [, ] if he ha[d] not received [it], [to] read it aloud." (Text Order dated Apr. 23, 2014; see also Telephone Notice dated Apr. 23, 2014 (reflecting that Deputy Clerk spoke with Plaintiff).) In addition, when Plaintiff responded in opposition to the instant Motion, he reported receiving from Assistant Clerk Haynes, on April 25, 2014, a physical copy of the instant Motion, but did not identify the manner of receipt. (See Docket Entry 67 at 3.)
As an initial matter, Plaintiff contends the Court should deny the instant Motion as untimely. (See id. at 2-3.) Specifically, Plaintiff asserts as follows:
Rule 45 bars the Court from granting a Motion to Quash if it was not served on the Party requesting the subpoena in a timely manner. Rule 45 defines timely as it relates to the filing of a Motion to Quash as having it served upon the Party that requested it within 14 days from the date of service. Therefore, the Court is barred from granting a Motion to Quash unless it was served on the Party that requested the subpoena within 14 days of the date of service regardless of the objections raised in the Motion or the counter-arguments of the Party that requested the subpoena. In this case, the Motion was not served in a timely manner as defined in Rule 45. [Plaintiff's wife] served the subpoena... on April 7, 2014. The [instant Motion] was not filed with the Court until April 22, 2014 and was not served on  Plaintiff until April 25, 2014. Regardless of whether the Court uses the filing date of the [instant Motion] or the service date of the [instant Motion], the [instant] Motion is not timely. (Id. at 2 (emphasis added).) In fact, however, the cited rule does not operate as Plaintiff suggests.
The 14-day requirement referenced by Plaintiff appears in the portion of said rule that addresses objections to subpoenas, one mechanism for "[p]rotecting a [p]erson [s]ubject to a [s]ubpoena." Fed.R.Civ.P. 45(d) (2) (B) ("Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises - or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served." (emphasis added)). Separately (but still within the paragraph entitled "Protecting a Person Subject to a Subpoena; Enforcement"), said rule also provides that:
On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception ...