United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL AND MOTION
RELATING TO THIRD-PARTY SUBPOENAS
KENNETH G. GALE, U.S. MAGISTRATE JUDGE.
before the Court is the “Motion to Quash or Modify
Defendant Melvin Hale's Subpoenas to Produce Documents,
Information, or Objections” filed by third-parties
Emporia State University (“ESU”) and ESU
President Allison Garrett regarding three of Defendant's
subpoenas. (Doc. 59.) Also pending is the “Motion to
Compel Compliance with Subpoena” filed by Defendant.
(Doc. 48.) This motion relates to the first of the three
subpoenas addressed in the third-party Motion to Quash.
Having reviewed the submissions of the parties, the Court is
prepared to rule.
filed the present action in the District Court of Lyon
County, Kansas, alleging Defendant defamed her by accusing
her of writing racial slur on a student's notebook on the
ESU campus. The case was removed to federal court by
Defendant, who represents himself pro se and also
filed a Motion to Proceed Without Prepayment of Fees
(IFP Application, Doc. 3, sealed), which was granted
by the Court (Doc. 6).
Rittgers previously brought the same claim as a counterclaim
in an action filed by Melvin Hale as a plaintiff in this
court in Case No. 15-4947. That case was filed on October 14,
2015. Rittgers was first named as a defendant in that case in
an amended complaint filed on November 4, 2015. She filed the
counterclaim, but not as part of an answer, on April 5, 2016.
Case No. 15-4947, Doc. No. 33. The court dismissed the
counterclaim without prejudice on June 15, 2016[, ] because
the counterclaim was not asserted in an answer to the
controlling complaint; it was simply filed as a separate
pleading titled “COUNTERCLAIM BY DEFENDANT DEBRA
RITTGERS.” In the same order, the court dismissed
defendant Rittgers from the case, pursuant to a motion to
dismiss filed on behalf of Rittgers and other defendants. So,
as explained in an order denying Rittgers' motion to
alter or amend judgment, Rittgers was not able to reassert
the counterclaim in Case No. 15-4947, because she was
dismissed as a party in the case. See Case No. 15-4947, Doc.
(See Doc. 11, at 1-2.)
filed a Motion to Dismiss (Doc. 4), arguing that he did not
knowingly make a false statement, that the lawsuit was barred
by the statute of limitations, and that it was an
“affront to free speech.” (See generally
Doc. 5.) The District Court subsequently denied the
dispositive motion. (Doc. 11.)
present motion is brought by non-parties ESU and its
president Allison Garrett (hereinafter
“Movants”). (Doc. 59.) Movants seek to quash or
modify three subpoenas Defendant has addressed to them, each
discussed more specifically infra.
26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
such, the requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be
discoverable. “Federal Rule of Civil Procedure 26(c)
confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required.” Layne Christensen Co. v.
Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010)
(quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36 (1984)).
45 governs subpoenas, with section (d) of that Rule relating
to “protecting a person subject to a subpoena” as
well as “enforcement.” Subsection (d)(1) of the
Rule states that
[a] party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena. The
court for the district where compliance is required must
enforce this duty and impose an appropriate sanction - which
may include lost earnings and reasonable attorney's fees
- on a party or attorney who fails to comply.
(d)(2)(B) relates to objections to subpoenas and states that
[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. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the
serving party may move the court for the district where
compliance is required for an order compelling production or
(ii) These acts may be required only as directed in the
order, and the order must protect a person who is neither a
party nor a party's officer from significant ...