Opinion
CAUSE NO. 1:01-CV-462
September 19, 2002
ORDER
This matter is before the Court on the pro se Plaintiff's July 25, 2002 Request for Production (Docket No. 31), his July 26, 2002 motion to hold the Defendants and their attorney, Robert Semler ("Semler") in contempt of court (Docket No. 33), and his September 3, 2002 motion to hold the Indiana State Police ("State Police") in contempt of Court (Docket No. 47), and a motion filed by the Defendants to quash a subpoena served by the Plaintiff on the Wells County Circuit Court. ( See Docket No. 41.)
This case involves the Plaintiff's claims under 42 U.S.C. § 1983 that the Defendants violated his rights under the Fifth, Sixth and Eighth Amendments when they intimidated him into confessing, failed to give him Miranda warnings, denied him access to counsel, delayed his trial, manufactured and tampered with evidence, denied him educational opportunities by waiving him into adult court denied him use of hygiene products that he purchased, and denied him necessary psychiatric treatment.
Defendant Brooks Mounsey is the Wells County Sheriff, defendant Diane Gilliam is a detective lieutenant with the Wells County Sheriff's Department, defendant Randy Steele is a deputy sheriff with the Wells County Sheriff's Department, defendant Marci Burch is a former probation officer with the Wells County Probation Department, and defendant Mike Smekens is the Wells County Jail Commander.
I. The Procedural Background
On July 25, 2002, the Plaintiff filed his request for the production of documents with the Court and the following day, July 26, 2002, he filed his motion to hold the Defendants and Semler in contempt of court for failing to comply with five subpoenas he sewed on them on July 1, 2002. In response, the Court set parallel briefing schedules for both motions. On August 15, 2002, the Defendants filed a response to both motions, and the Plaintiff filed a reply on September 3, 2002.
Meanwhile, on July 26, 2002, the Defendants produced the Plaintiff's complete inmate file, and in response to the Plaintiff's subpoenas, they produced on August 8, 2002, copies of all documents in their possession relating to the Plaintiff's arrest and prosecution. Finally, on August 14, 2002, the Defendants responded to the Plaintiff's remaining requests for production.
On August 12, 2002, the Plaintiff served a subpoena on the Clerk of the Wells County Circuit Court seeking transcripts of his prior state court case. Subsequently, on August 22, 2002, the Defendants filed a motion to quash this subpoena, apparently at the request of Wells County Attorney. The Plaintiff filed a response brief on September 9, 2002.
Finally, on August 12, 2002, the Plaintiff served the Indiana State Police with a subpoena seeking the production by August 22, 2002, of records and bills for telephone monitoring equipment used by the Wells County Sheriff. When the Indiana State Police objected to this request, the Plaintiff filed a motion to hold them in contempt on September 3, 2002.
II. Discussion
A. The Plaintiff's Motion for Contempt
The Plaintiff seeks to hold the Defendants and Semler in contempt of Court for not producing the materials requested in the five subpoenas he served on them. The Federal Rules of Civil Procedure contain separate provisions for obtaining documents from parties, see Fed.R.Civ.P. 34, and non-parties, see Fed.R.Civ.P. 45. Specifically, Rule 34 allows a party to request the production of documents and things in the "possession, custody, or control" of any other party, but Rule 45 provides that such materials can only be obtained from a non-party through a subpoena.
Although the Plaintiff served five subpoenas on the Defendants, they properly regarded them as Rule 34 document requests. Notably, however, only one subpoena sought any documents from the defendants, the remaining four actually sought documents in the "possession, custody, or control" of various non-parties. In response, the Defendants provided materials satisfying the sole subpoena directed to them, and objected to the remaining four since the documents sought there were not in their possession, custody, or control.
Specifically, the subpoenas sought the production of various telephone records regarding certain calls made by the Wells County Probation Department, files and notes regarding the Plaintiff made by the Wells County Probation Department, and the telephone records regarding certain calls made by the Wells County Prosecutor's Office to the Whitley County Prosecutor's Office.
Of course, a party may not be compelled to produce papers or things not in their possession, custody or control. Burton Mechanical Contractors, Inc. v. Foreman, 148 F.R.D. 230, 236 (N.D. Ind. 1992). Moreover, the "party seeking production of documents [i.e., the Plaintiff here] bears the burden of establishing the opposing party's control over those documents." Id. (quoting Camden Iron Metal v. Marubeni America Corp., 138 F.R.D. 438, 441 (D.N.J. 1991)); McAuslin v. Grinnell Corp., 1999 WL 24617, *2 (E.D. La. Jan. 19, 1999); Sithon Maritime Co. v. Holiday Mansion, 1998 WL 182785, *6 (D. Kan. April 10, 1998). Control is broadly defined to include "the legal right to obtain the documents requested upon demand." Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984), Burton Mechanical Contractors, 148 F.R.D. at 236; Henderson v. Zurn Indus., Inc., 131 F.R.D. 560, 567 (S.D. Ind. 1990); Bowman v. Consolidated Rail Corp., 110 F.R.D. 525, 526 (N.D. Ind. 1986).
However, the Plaintiff has failed to establish that the Defendants have any "control, " or even the right to obtain, any documents in the Wells County Probation Department or the Wells County Prosecutor's Office. The best the Plaintiff can do is argue that defendant Burch has control of those documents at the Wells County Probation Department since she was formerly employed there as a probation officer. However, that fact alone falls short of establishing that Burch has any "legal right" to obtain, upon demand, the subpoenaed documents. Indeed, Burch has only been sued in her individual capacity, and as a former employee, doubtless lacks access to the Probation Department's files regarding the Plaintiff. McBryar v. U.A.W., 160 F.R.D. 691, 697 (S.D. Ind. 1993) (access and use of documents is a factor in determining control). More significantly, it appears Burch's attorney actually requested the documents from the Probation Department but was denied. (Docket No. 38, ¶ 10.)
Under Indiana law, at least some of the records are confidential. See, e.g., Ind. Code § 35-38-1-13.
As to the documents sought from the Wells County Prosecutor's Office, the Plaintiff has clearly not met the burden of establishing that the Defendants have control over these documents either. Indeed, the Plaintiff states he thought the subpoena only needed to be served on the Defendants' attorney, and is just now getting around to serving the Prosecutor's Office directly. (Docket No. 48 at 3.) Thus, with regard to his motion for contempt, this is insufficient to establish that the Defendants have control of the documents sought from the Wells County Prosecutor's Office.
Accordingly, because the Defendants lacked any control over the documents in the Wells County Probation Department or the Wells County Prosecutor's Office and because they properly produced those documents otherwise in their possession, custody or control, we cannot compel any further production, and the Plaintiff's motion to hold the Defendants and Semler in contempt will be denied.
B. The Plaintiff's Request for Production
Liberally construed, Haines v. Kerner, 404 U.S. 519, 521 (1972), the Plaintiff's request for production appears to be a motion to compel the discovery of 13 requested items. However, five of those (Requests 4-8) seek the subpoenaed material discussed supra. Since the Defendants do not have the documents from the Probation Department and the Prosecutor's Office in their possession, custody or control and since they have otherwise provided documents responsive to the subpoena served on Sheriff Mounsey, the Plaintiff's motion to compel will be denied as to Requests 4, 5, 6, 7, and 8. The remaining items will be addressed seriatim.
Request 1 seeks Wells County Circuit Court transcripts in which the Defendants testified against the Plaintiff. However, the Defendants do not have any such transcripts, a point the Plaintiff apparently concedes since he is now trying to get such transcripts prepared. Therefore, the motion to compel will be denied as to Request 1.
Request 2 seeks documents "issued or testified to in all court matters pursuant to Blake Elliot Urshel, " but the Defendants contend they have already produced all responsive documents. However, the Plaintiff argues that certain documents he knows exist are missing because his attorney in the underlying state court proceeding provided them to him. This concession leads to the invocation of the common-sense rule that a "court may refuse to require a party to produce documents that the requesting party already has within [his] control." 7 Moore's Federal Practice, § 37.12[5][a] (Mathew Bender 3d ed. 2000). Moreover, the Plaintiff does not explain why the Defendants should produce documents he already possesses. Therefore, the Plaintiff's motion to compel will be denied as to Request 2.
Request 3 seeks "[a]ll personal notes and correspondences to Michael Lautzenhiser, Prosecuting Attorney, and to Ricky Meyers, Deputy Prosecuting Attorney." The Defendants object to the request as overly broad and burdensome, but also respond that they have no such documents in any event. Although the Plaintiff attempts to establish the relevancy of this request, he fails to demonstrate that the Defendants have these documents in their possession, control or custody. See Burton Mechanical, 148 F.R.D. at 236 (party requesting documents has burden of showing them to be in the possession, custody or control of other party). Therefore, the Plaintiff's motion to compel Request 3 will be denied.
Requests 9 seeks notes and minutes of meetings between the Wells County Sheriff's Department and the Indiana State Police regarding federal charges of drug dealing. The Defendants claim they are unaware of any such meeting or any related notes and consequently have no responsive documents. The Plaintiff apparently concedes that the Defendants do not have these documents since he is in the process of subpoenaing them from a different source. Therefore, his motion to compel will be denied as to Request 9.
Request 10 seeks files on employees fired for tampering with the drug evidence locker. However, the Defendants claim they are not aware of any such employees or related files, and consequently have no responsive documents. The Plaintiff argues that he thinks the Defendants have these materials, but he has pointed to no evidence that suggests that the prior response was pretextual. Indeed, as discussed supra, the Plaintiff must show that these documents are in the Defendants' possession, custody, or control, Burton Mechanical, 148 F.R.D. at 236, and this requires more than intuition or subjective belief. Accordingly, the Plaintiff's motion to compel will be denied as to Request 10.
Request 11 seeks "[a]ll records on defendant Diane Gilliam, on purjury [sic] in the Plaintiff, Blake Elliot Urschel, waiver hearing" and any disciplinary records from Gilliam's personnel file. The Defendants respond that they are unaware of any perjury by Gilliam and have no documents regarding disciplinary actions against her. Nevertheless, the Plaintiff appears to argue that Gilliam possesses such documents. However, since he offers no evidence on the point, he has failed to establish that they exist or that she has custody of them. Id. Therefore, the Plaintiff's motion to compel will be denied as to Request 11.
Request 12 seeks records concerning civil rights violations committed by defendant Randy Steele and any disciplinary records. The Defendants claim that no responsive documents exist and the Plaintiff apparently accepts this explanation since he does not offer a reply. Therefore, his motion to compel will be denied as to Request 12.
Finally, Request 13 seeks "[a]ll records and probable cause affidavits on the wiretapping of the residence of Blake Elliot Urshel." The Defendants respond that they are unaware of any such wiretapping or related documents, and consequently have no responsive documents. The Plaintiff argues that the Defendants in fact know of the wiretapping and points to his father's affidavit (supposedly attached as Exhibit 3 to his reply) in support. However, no such affidavit was attached, and thus there is simply no evidence establishing the existence of these documents. Accordingly, the Plaintiff's motion to compel will be denied as to Request 13.
Thus, for the foregoing reasons, the Plaintiff's motion to compel will be denied.
C. The Plaintiff's Motion to Hold the State Police in Contempt
The Plaintiff also seeks to hold the State Police in contempt for not producing documents responsive to his August 12, 2002 subpoena seeking the production by August 22, 2002, of "[a]ll log records for the use of telephone monitoring equipment by the Wells County Sheriff's, the length and usage of equipment and copy of Bill for usage, and all subsequent papers and probable cause court orders accompanying and who picked up and returned equipment." (Docket No. 47, Attachment 2.) The State Police then objected to the subpoena because it seeks a response in less time than provided by Fed.R.Civ.P. 34(b) and because no responsive documents exist. (Docket No. 47, Attachment 1.)
The Plaintiff apparently does not believe the claim that no such documents exist because in his motion, the Plaintiff accuses the State Police of covering up for Sheriff Mounsey.
The standard for production of documents from nonparties under Fed.R.Civ.P. 45(d) is similar to the standard applicable to parties under Fed.R.Civ.P. 34. See Fed.R.Civ.P. 45, 1991 Advisory Committee's Notes ("[t]he non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34."); 9 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2457, at 431-32 (1971); Graham v. Casey's General Stores, 206 F.R.D. 251, 253 (S.D. Ind. 2002); Jackson v. Brinker, 147 F.R.D. 189, 193-194 (S.D. Ind. 1993); Sony Corp. v. S.W.I. Trading, Inc., 104 F.R.D. 535, 544 (S.D.N.Y. 1985). Thus, as discussed supra, Rule 45 charges the Plaintiff with establishing the State Police's control over subpoenaed documents. See, e.g., Burton Mechanical, 148 F.R.D. at 236.
However, the Plaintiff has failed to make this rather minimal showing. Indeed, the State Police contend that they do not control or possess any responsive documents. Although the Plaintiff offers his subjective belief that the State Police have these documents and are engaged in some sort of far flung cover-up to protect the Defendants, as discussed supra, this is insufficient. See, e.g., Burton Mechanical, 148 F.R.D. at 236 (requesting party has burden of establishing opposing person's control of documents).
Accordingly, since the Plaintiff has not established that the subpoenaed documents exist or that the State Police control them, his motion for contempt will be denied.
D. Defendants' Motion to Quash Subpoena
Finally, the Defendants move to quash the Plaintiff's subpoena served on the Clerk of the Wells County Circuit Court, requesting the transcripts of his prior state court proceedings. However, before we analyze the merits of Defendants' motion, we first turn to whether the Defendants have standing to quash the subpoenas. This issue arises because the subpoena was not served on the Defendants but rather on a third party, the Clerk of the Wells County Circuit Court. Generally speaking, a party to the lawsuit does not have standing to quash a subpoena served on a non-party. Stewart v. Mitchell Transport, 2002 WL 1558210, * 1 (D.Kan. July 8, 2002). However, there is standing where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested. Dreyer v. GACS Inc., 204 F.R.D. 120, 122 n. 3 (N.D. Ind. 2001); Minnesota School Boards Ass'n Ins. Trust v. Employers Ins. Co. of Wausau, 183 F.R.D. 627, 629 (N.D. Ill. 1999).
Nevertheless, the Defendants do not invoke any privilege or personal right, and simply object that under Indiana state law, Ind. Code § 33-15-23-5, the Plaintiff is obligated to pay for the transcript and to allow him to circumvent that statute would work an undue burden on Wells County. While this may be true, as discussed infra, it appears that the Defendants lack standing to object to the Plaintiff's subpoena.
Nevertheless, a close reading of the motion reveals that the Wells County Circuit Court apparently joined the Defendants in bringing the motion to quash. Indeed, Paragraph 5 of the motion reads "[t]he Wells Circuit Court therefore objects to plaintiff's subpoena . . . and moves that the subpoena be quashed due to plaintiff's failure to tender required fees for preparation of the transcripts, and due to the subpoena imposing an undue burden upon the clerk of the Wells Circuit Court." (Defs. M. to Quash ¶ 5.) Further, in Paragraph 6, James Stephenson, attorney for the Defendants, explains that the Wells County Attorney, Trent Patterson, personally asked him to file the motion to quash on behalf of the Wells County Circuit Court. (Defs. M. to Quash. ¶ 6.) Accordingly, we think it clear that the motion to quash is brought by both the Defendants and the Clerk of the Wells County Circuit Court. Thus, because the Wells County Circuit Court has standing to move to quash the subpoena, we will consider its merits.
The Wells County Circuit Court contends that while the Plaintiff may be entitled to the transcripts, he must pay the required fees, and allowing him to skirt payment by simply issuing a subpoena would impose an undue burden. Indeed, Ind. Code § 33-15-23-5 provides that before preparing any transcript, the court reporter "may require a payment for such a transcript . . . before he proceeds to do the work required of him." Ind. Code. § 33-15-23-5.
Nevertheless, the Plaintiff objects that the $3.00 per page fee is unreasonable because it would force him to pay between $450.00 and $750.00 for the complete transcript. To support his argument, the Plaintiff cites the Indiana Access to Public Records statute for the general proposition that Indiana public policy favors the disclosure of government information.
However, we agree with the Wells County Circuit Court that requiring it to produce the transcripts without collecting a fee would subject them to "significant expense" and an "undue burden." See Fed.R.Civ.P. 45(c)(2)(B) and (c)(3)(A)(iv). Whether a subpoena imposes an "undue burden" is a case specific inquiry that turns on "such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed." American Elec. Power Co., Inc. v. United States, 191 F.R.D. 132, 136 (S.D. Ohio 1999) (citing Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y. 1996)). Moreover, where a subpoena would impose excessive cost on the subpoenaed party, it imposes an undue hardship. See Kostelecky v. NL Acme Tool/NL Indus., Inc., 837 F.2d 828, 832-33 (8th Cir. 1988) (substantial loss of income for complying with subpoena was excessive cost justifying quashing the subpoena); also 9 Moore's Federal Practice, § 45.04[3][b] (Matthew Bender 3d ed. 2000).
Here, requiring the Wells County court reporter to provide the Plaintiff with free transcripts would impose an undue burden and significant expense. After all, the court reporter is statutorily entitled to insist upon the prepayment of her fees, in this instance at least $450.00. Ind. Code § 33-15-23-5. However, the Plaintiff is apparently of the view that by issuing a subpoena he can force her to do the transcript for free or at a mere fraction of what is customarily required. of course, the entire tenor of Fed.R.Civ.P. 45 is to prohibit a party from simply shifting his significant litigation expenses to a non-party. Additionally, while Indiana law generally provides that any person can inspect and copy public records, Ind. Code § 5-14-3-3, it does not require, as the Plaintiff would suggest, that a governmental entity provide them free of charge.
Nevertheless, the Plaintiff goes on to contend that the transcription fee of $3.00 per page is unreasonable and points to an inapplicable statute that proscribes a maximum fee, see Ind. Code § 5-14-3-8(c), for copying records. However, the court reporter here is not simply copying pages, she is being asked to undertake the laborious process of actually preparing a transcript. For this, she is entitled to charge a reasonable fee set by local rule. See Ind. Administrative Rule 15 § C(1)(2). We do not know the maximum per page charge the Wells County Courts have authorized by local rule, but we do know that other courts have set similar fees to that quoted to the Plaintiff. See Allen Cty. L.R. 2 for Ct. Repr. Servs., § 2(4) ($3.25 per page fee for private parties); St. Joseph Cir. Ct. Rule 16, § 2(2)-(7) ($2.75 per page fee for non-expedited transcripts). Therefore, the Plaintiff's request that we order the court reporter of the Wells County Circuit Court to provide him with a free transcript, or one at a reduced price than that authorized by that court's local rule is denied.
Even if proceeding in forma pauperis, the Plaintiff would still have to pay for his own discovery. See, e.g., Windsor v. Martingale, 175 F.R.D. 665, 672 (D. Colo. 1997); Gregg v. Clerk of United States District Court, 160 F.R.D. 653, 654 (N.D. Fla. 1995).
Thus, for the foregoing reasons, the Wells County Circuit Court's motion to quash the Plaintiff's subpoena (Docket No. 41) will be granted.
CONCLUSION
For the foregoing reasons, the Plaintiff's motion to hold the Defendants and Semler in contempt of court (Docket No. 33) is DENIED, his motion to compel (Docket No. 31) is DENIED, his motion to hold the Indiana State Police in contempt of court (Docket No. 47) is DENIED, and the Wells County Circuit Court's motion to quash (Docket No. 41) is GRANTED.