Opinion
CAUSE NO. 1:00-CV-424.
March 20, 2002
MEMORANDUM OF DECISION AND ORDER
1. INTRODUCTION
This matter is before the Court on the Defendant's motion to exclude testimony and to quash subpoenas, filed on March 13, 2002. On March 18, 2002, the Defendants faxed a letter to the Court supplementing that motion. A telephone hearing was held on March 20, 2002, in which Plaintiff's counsel agreed to the Court's consideration and resolution of the issue raised in the alleged supplement to the original motion. For the following reasons, the Defendant's motion will granted as to the Defendant's motion to quash, and we will delay ruling on the Defendant's motion to exclude pursuant to a concurrent order issued this day.
2. PROCEDURAL AND FACTUAL BACKGROUND
On November 14, 2000, the Plaintiff filed his complaint, alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. The Plaintiff alleges that the Defendant disqualified him as a candidate for employment as a Freight Train Employee ("FTE") because he only has two fingers on his dominant hand.
According to the Schedule adopted by the Court, Fed.R.Civ.P. 26(a)(1) disclosures were due on or before February 1, 2001, and discovery in this case was to be completed by August 15, 2001.
Now, one week before trial, the parties dispute whether the Plaintiff is entitled to the production of certain records pursuant to a March 15, 2002, subpoena propounded on B.W. Mason ("Mason"), a local superintendent employed by the Defendant, and whether two potential witnesses, James Arata ("Arata")and Frank Doster ("Doster"), should be allowed to testify at trial.
Although the Defendant originally objected to the testim ony of seven w itnesses no t identified in previous disclo sures, at the motion hearing, it indicates that it now only objects to Arata and Doster.
3. DISCUSSION
On March 15, 2002, eleven days before trial, the Plaintiff served a subpoena duces tecum on Mason, requesting that he produce on the second day of trial "documentation identifying the name, address, and telephone number, if any, of all individuals hired by [the Defendant] as an FTE, as a result of [the hiring session in which the Plaintiff was not hired], and records or an outline/summary of the wages earned by each said individual on an annual basis . . . for the years of 1999, 2000, 2001, and 2002, to date."
The Defendant argues that the Plaintiff is attempting to circumvent the discovery deadline by asking for a potentially voluminous amount of material that was never previously requested. Moreover, the Defendant represents that Mason does not even have direct access to the subpoenaed materials, which are stored in the Defendant's corporate headquarters in Norfolk, Virginia. Finally, the Defendant represents that it does not know the manner or means in which the subpoenaed materials are stored.
The Plaintiff in response argues that he was simply complying with the Order Controlling the Case, which authorizes the parties to serve subpoenas duces tecum as to "all necessary exhibits not otherwise voluntarily obtainable" not less than ten days before trial. (Docket No. 11 at 7.)
Trial subpoenas may be used to secure documents in certain limited instances. See Integra Lifesciences I, Ltd. v. Merck KgaA, 190 F.R.D. 556, 561 (S.D.Cal. 1999). For example, a trial subpoena could be used to secure an original document previously disclosed during discovery, or for the purposes of memory recollection or trial preparation. Id.; Rice v. United States, 164 F.R.D. 556, 558 n. 1 (N.D.Okla. 1995); Puritan Inv. Corp. v. ASLL Corp., 1997 WL 793569, *1 (E.D.Pa. Dec. 9, 1997); BASF Corp. v. Old World Trading Co., 1992 WL 24076, *2 (N.D.Ill. Feb. 4, 1992).
However, trial subpoenas may not be used as a means to engage in discovery after the discovery deadline has expired. Puritan, 1997 WL 793569, at *1; BASF, 1992 WL 24076, at *2; Potomac Elec. Power Co. v. Electric Motor Supply, Inc., 190 F.R.D. 372, 381 n. 13 (D.Md. 1999) ("courts have not hesitated to quash subpoenas where they were used as a means to reopen discovery after the cut-off date."); Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 354-55 (6th Cir. 1984) (affirming district court's decision to quash subpoena issued on the eve of trial seeking documents available during discovery); Pitter v. American Express Co. 1984 WL 1272, *5 (S.D.N.Y. Nov. 27, 1984 ("shotgun" production demands through the use of trial subpoenas are impermissible substitute for pretrial discovery). Indeed, "when [a] party . . . is aware of the existence of documents before the discovery cutoff date and issues discovery requests including subpoenas after the discovery deadline has passed, then the subpoenas and discovery requests should be denied. McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995).
In this case, there is no indication that the subpoenaed materials would be used for memory refreshment or otherwise for trial preparation. The Plaintiff's sole contention is that these materials are necessary to prove damages. However, this does not explain why the desired records and materials were not obtained through a proper Fed.R.Civ.P. 34 document request well before the close of discovery in August 2001. Indeed, prior to the instant, untimely subpoena, the Plaintiff never requested any damages-related materials from the Defendant, despite the fact that the documents he now seeks are all records routinely maintained by corporations in one form or another. Nevertheless, the Plaintiff failed to conduct timely discovery to obtain the requested documents.
Moreover, the Plaintiff's contention that the Order Controlling the Case authorized him to make this untimely demand is equally unavailing. The Order Controlling the Case does not allow the Plaintiff to sweep up any and all discovery at the virtual last-minute. Instead, it limits the Plaintiff's authority to subpoena materials to those "necessary exhibits" which are "otherwise not voluntarily obtainable." (Docket No. 11 at 7.) However, here, the Plaintiff has not even attempted to obtain these materials prior to the discovery deadline. Thus, we can hardly say that these records were unobtainable through Fed.R.Civ.P. 34 document requests.
Finally, the Plaintiff's claim that these materials are necessary for trial lacks merit in light of the fact that he has not identified the subpoenaed materials as potential exhibits in the Final Pretrial Order. Indeed, even if Mason produced the materials, the Plaintiff would still need to have the Court amend the Final Pretrial Order to allow use of these materials as exhibits. See Fed.R.Civ.P. 16(e).
Thus, it appears that the Plaintiff is attempting to impermissibly use trial subpoenas as a discovery device on the eve of trial. See Thompson v. Glenmede Trust Co., 1996 WL 529691, *1 (E.D.Pa. Sept. 16, 1996) (requiring a party to produce documents pursuant to subpoena served after discovery deadline is unjust and unduly burdensome). Moreover, if we were to allow the subpoena to go forward, it would handicap the Defendant's trial preparation since it would be required to scramble to obtain these documents at the last minute. Therefore, for all these reasons, the Defendant's motion to quash the subpoena propounded on Mason will be granted.
CONCLUSION
For the foregoing reasons, the Defendant's motion to quash the subpoena propounded on Mason is hereby GRANTED.