Opinion
Case No. 1:01:MC:26
April 9, 2001
ORDER MODIFYING SUBPOENA
In accordance with the memorandum opinion filed this date:
IT IS ORDERED that the motion of Josette Nelson to quash subpoena (docket # 1) be and hereby is GRANTED IN PART AND DENIED IN PART. The subpoena served upon Josette Nelson dated February 22, 2001, is hereby MODIFIED to require Josette Nelson to appear for deposition at a place to be agreed upon by all counsel, no greater than 100 miles from Kentwood, Michigan.
IT IS FURTHER ORDERED that monetary sanctions be and hereby are assessed against plaintiffs' counsel and in favor of Josette Nelson in the amount of $250.00 pursuant to Fed.R.Civ.P. 45(c)(1).
IT IS FURTHER ORDERED that counsel for Ms. Nelson and for plaintiffs shall confer in good faith to determine the appropriate time and place for the deposition and the scope of document production under the subpoena. Plaintiffs may file a motion to compel pursuant to Rule 45(c)(2)(B) upon written certification of unsuccessful efforts to resolve these issues and the payment of the sanctions assessed herein.
IT IS FURTHER ORDERED that plaintiffs' motion to participate by telephone (docket # 6) be and hereby is DENIED as moot, and the hearing previously scheduled for April 10, 2001, at 3:30 p.m., is CANCELED.
MEMORANDUM OPINION
This is a miscellaneous proceeding, ancillary to a civil action pending in the United States District Court for the Northern District of Ohio. Matthias Jans Associates v. Dennis A. Dropic, case no. 1:97cv 2285. Plaintiffs in that action obtained a judgment against defendant Dennis A. Dropic in the approximate amount of $2,038,000.00 on December 23, 1998. The present ancillary proceedings arise from plaintiffs' service of a subpoena duces tecum on Mr. Dropic's daughter, Josette Dropic Nelson, who resides within this district. The subpoena purports to require the appearance of Josette Dropic Nelson on April 19, 2001, for a deposition in Cleveland, Ohio. It also requires her to produce all documents concerning any bank accounts in her name or in the name of any business entity which she owns or controls.
Presently pending before the court is the motion of Josette Nelson to quash the subpoena, filed pursuant to Fed.R.Civ.P. 45(c)(3). The motion contends that the subpoena should be quashed or modified because it requires Ms. Nelson's appearance more than 100 miles from the place where she resides or works and because the scope of the document demand is unreasonable. Plaintiffs have filed a brief and a supplemental brief in opposition to the motion (docket #'s 7, 8) and a motion for permission to participate in the hearing by telephone. Having reviewed the motion to quash and plaintiff's response, the court determines that oral argument would not be helpful. The motion hearing set for April 10, 2001, at 3:30 p.m., is therefore canceled. See W.D. MICH. LCIVR 7.3(d).
Rule 45(c) sets forth provisions designed to protect persons subject to a subpoena from undue burden or expense. Rule 45(c)(1) imposes an affirmative duty upon the attorney responsible for the issuance of a subpoena to take "reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Rule 45(c)(2)(B) authorizes a person subpoenaed for the production of documents to assert written objections to inspection or copying of any or all the designated materials. The filing of the objection suspends any duty to produce the subpoenaed documents, until the party serving the subpoena procures an order compelling production after notice to the deponent. If the court thereafter grants the motion to compel, the court's order must "protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded." Finally, Rule 45(c)(3)(A) authorizes motions to quash subpoenas on a number of grounds. One mandatory ground for relief is if the subpoena "requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed, or regularly transacts business in person," except for trial subpoenas. FED. R. CIV. P. 45(c)(3)(A)(ii). Proceeding under these provisions, Ms. Nelson asserts that the scope of the document production is unreasonable and that the subpoena requires her to appear at a place more than 100 miles from her place of residence and employment.
Plaintiffs' response to the motion ignores the grounds asserted. Rather, after accusing the deponent of receiving fraudulent conveyances from her father, plaintiffs' brief suggests that the subpoena cannot be quashed because it was issued pursuant to an order of the United States District Court for the Northern District of Ohio. Plaintiffs' position is not well-founded. Without question, a judgment creditor is entitled to pursue discovery in aid of execution. Plaintiffs' motion in the Northern District of Ohio sought permission for such discovery, and the court granted it. Plaintiffs did not seek permission to issue a subpoena that violates the territorial provisions of Rule 45(c), nor is it likely that the court in Ohio would have granted such relief. The order entered by Judge Manos merely permitted plaintiffs to pursue discovery, but did not purport to abrogate the Federal Rules of Civil Procedure. Because these proceedings are merely ancillary to the principal action in Ohio, this court is bound to implement the orders entered in Ohio to the fullest extent, but it cannot avoid the responsibilities placed upon it by the Federal Rules as the court under whose authority the subpoena was issued. Those rules contain mandatory safeguards for the protection of persons subject to subpoena, including a requirement that nonparties not be forced to travel more than 100 miles from their place of residence or employment. Plaintiffs have not attempted to justify their rather patent attempt to subvert this requirement of Rule 45(c). A subpoena must be quashed or modified if it purports to require a nonparty to travel to a place more than 100 miles from his or her residence or employment. See Comm-Tract Corp. v. Northern Telecom., Inc., 168 F.R.D. 4, 7 (D.Mass. 1996); 9A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 2463, at 70 (2d ed. 1995).
The motion to quash also challenges the scope of the document demand contained in the subpoena. Again, plaintiffs have not attempted to justify the breadth of their request, except to say that they have evidence indicating the existence of fraudulent conveyances from Dennis Dropic to Josette Nelson. Although post-judgment discovery of third parties is certainly allowable under Rule 69, the inquiry "must be kept pertinent to the goal of discovering concealed assets of the judgment debtor and not be allowed to become a means of harassment of the debtor to third persons." Caisson Corp. v. County West Building Corp., 62 F.R.D. 331, 334 (E.D.Pa. 1974). The scope of discovery against third parties is therefore generally limited to "the financial affairs of the judgment debtor." Third parties should not be required to disclose their own assets. Id.; see also Costamar Shipping Co. v. Kim-Sail, Ltd., No. 95 civ. 3349, 1995 WL 736907, at * 2 (S.D.N.Y. Dec. 12, 1995). The present record is insufficient for the court to determine whether the scope of plaintiffs' subpoena exceeds this limitation. The issue of the allowable scope of the subpoena, however, is not properly before the court at present. Where, as here, the subpoenaed party files an objection to production of documents, the burden is on the party serving the subpoena to seek an order of enforcement. FED. R. CIV. P. 45(c)(2)(B). Plaintiffs have not done so. The court will therefore not attempt to adjudicate the proper scope of document production. Plaintiffs will be required to confer in good faith with counsel for Ms. Nelson to determine the appropriate scope of the subpoena. If those efforts are unsuccessful, plaintiffs may file a motion to compel as envisioned by Rule 45(c)(2)(B).
For the foregoing reasons, the court will enter an order modifying the subpoena duces tecum for violation of the mandatory territorial restriction set forth in Rule 45(c)(3)(A)(ii). Counsel for the parties are directed to confer in good faith to agree upon a time and place within 100 miles of Ms. Nelson's residence for her deposition and for purposes of agreeing upon the scope of document production. Sanctions in the amount of $250.00 will be assessed against plaintiffs' attorneys and in favor of Ms. Nelson pursuant to Rule 45(c)(1), for counsel's patent breach of their affirmative duty to take reasonable steps to avoid imposing undue burden upon a deponent. An attempt to enforce a subpoena that violates the mandatory provisions of Rule 45(c)(3) is a per se violation of the Rule 45(c)(1) duty. Such sanctions are payable immediately. The court will entertain a motion by plaintiff upon certification that good-faith efforts to agree on the scope of document production have failed. The certification accompanying the motion shall recite counsel's efforts to come to agreement and shall certify that the sanctions imposed herein have been paid.