Opinion
Civil Action No: 98-2456 c/w 99-1819 SECTION: "J"(1)
August 16, 2000
HEARING ON MOTIONS
MOTIONS:
1. MOTION OF DEFENDANTS FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFFS' REQUEST FOR ADMISSIONS.
GRANTED IN PART AND DENIED IN PART
2. MOTION OF PLAINTIFFS' TO OVERRULE OBJECTIONS TO DOCUMENT SUBPOENAE AND COMPEL PRODUCTION OF DOCUMENTS.
DENIED
3. MOTION OF PLAINTIFFS TO COMPEL PRODUCTION OF DOCUMENTS BY FIRST ASSURANCE LIFE OF AMERICA
DENIED
Before the court is the motion of the defendants, Louisiana Dealer Services Inc., Ford Motor Credit Company, American National Insurance Company, Nissan Motor Acceptance Corporation and Chrysler Financial Corporation, for an extension of time to respond to plaintiffs' first request for admissions served on July 13, 2000, and plaintiffs' second request for admissions served on July 13, 2000. Rec. doc. 266. On July 21, 2000, United States District Judge Barbier ordered that the parties shall brief to the Court whether federal subject matter jurisdiction is present in this case, and more specifically, whether plaintiffs have a viable RICO claim by August 11, 2000. Rec. doc. 249.
The defendants contend that the responses to the requests for admission will be burdensome and time consuming for the defendants. Certain of the defendants will be required to manually retrieve the information. Noting that the need to respond to the requests for admission may be mooted by the Court's ruling on the issue of subject matter jurisdiction, the defendants request an extension until September 1, 2000, to respond.
The plaintiffs show that the class certification hearing is set for September 13, 2000. While the plaintiffs do not object to extending the time for responding to the discovery until after the Court rules on the subject matter jurisdiction, the plaintiffs do not want the defendants' time to object to the requests similarly extended. The plaintiffs express the concern that an extension of time to object will not provide the parties sufficient time to respond to the objections and complete the discovery in time for September 13, 2000.
The defendants shall serve any objections to the plaintiffs' first and second requests for admissions by August 23, 2000. The defendants shall admit or deny the requests for admissions by September 1, 2000.
Also before the court are plaintiffs' motions to overrule the objections to document subpoenae and compel production of documents. Rec. doc. 256 and 264. The plaintiffs issued subpoenae duces tecum to all of the defendants in these actions. The subpoenae all provided for service through counsel of record for the defendants. The subpoenae seek similar information relating to the named plaintiffs. For example, the subpoenae served upon counsel for Crescent Bank Trust seeks the following:
The subpoenae are attached to plaintiffs' motion to supplement. Rec. doc. 258. The defendants filed objections to the subpoenae. Rec. doc. 250, 252-55 and 257. This minute entry is applicable to all of these subpoenae and the objections thereto.
(A)ll documents . . . relating to a policy of credit life insurance, including any documents evidencing a refund of the premium, which credit life insurance, and the premium thereof is reflected on a retail installment contract dated March 13, 1999, financing the sale of a vehicle and credit life insurance to Kevin Wells, and assigned to Crescent Bank Trust by Crescent City Nissan East.
The objections of Chrysler Financial Corporation are representative of the objections filed by the defendants. Chrysler Financial's objection urges: (1) the documents sought by the subpoena are irrelevant to the pending motion to certify the class, (2) the use of the subpoena is an improper attempt to avoid Fed.R.Civ.P. 30 and 34, (3) the subpoena was improperly served upon counsel for Chrysler Financial rather than its agent for service of process, and (4) the subpoena fails to designate who is to be deposed if it is for a deposition. Rec. doc. 254. As acknowledged by Ford Motor Credit Company's reply to plaintiffs' motion, the plaintiffs resolved part of the objections by advising that the subpoenae were only for the production of documents and there was no requirement that a corporate representative be appointed.
In their motions to overrule the objections, plaintiffs show that all the subpoenae are directed to documents concerning the named plaintiffs only, the documents (relating to refunds of credit life insurance) are not voluminous, the documents are relevant as they relate to plaintiffs' claims in these actions concerning the sale of credit life insurance, and a party may obtain discovery from another party either by Fed.R.Civ.P. 33 and 34 or by Fed.R.Civ.P. 45, citing Tiberi v. CIGNA Insurance Company, 40 F.3d 110 (5th Cir. 1994).
The defendants argue that there is no issue that each of the named plaintiffs financed and purchased credit life insurance, and the information concerning refunds of credit life insurance is not pertinent to the class certification issues. The court agrees that the information sought concerning refunds of credit life insurance is not relevant to the class certification issues.
The defendants also argue that the plaintiffs' use of Fed.R.Civ.P. 45 to obtain discovery is improper. Fed.R.Civ.P. 34, and not Rule 45 provides the proper way for a party-plaintiff to obtain documents from a party-defendant. Traina v. Blanchard, 1998 WL 178762 (E.D.La. 1998).Tiberi v. CIGNA Insurance Company, 40 F.3d 110 (5th Cir. 1994), does not support a contrary result. Frederick Tiberi and others were plaintiffs in a breach of contract suit against CIGNA Insurance Company. CIGNA, by means of subpoenae duces tecum, sought discovery of documents in the possession of Millers Mutual Fire Insurance and Millers Group Insurance, who were not parties to the action between the Tiberi plaintiffs and CIGNA. Millers Mutual and Millers Group moved for a protective order. The issues on appeal were (1) whether the district court erred in refusing to admit a faxed affidavit, (2) the award of attorneys fees' awarded to Millers Mutual and Millers Group, and (3) the district court's order barring discovery of Millers Mutual and Millers Group. There was no issue concerning whether a party may use a subpoena duces tecum to obtain discovery from another party, because Millers Mutual and Millers Group were not parties to the litigation.
It is ORDERED that (1) the motion of the defendants for an extension of time to respond to plaintiffs' request for admissions (Rec. doc. 266) is DENIED in part and GRANTED in part in that defendants shall serve any objections to the plaintiffs' first and second requests for admissions by August 23, 2000, and defendants shall admit or deny the requests for admissions by September 1, 2000, (2) the motions of the plaintiffs to overrule objections to subpoenae duces tecum and compel production of documents (Rec. doc. 256 and 264) are DENIED.