Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gilpatrick v. Harper Co.

United States District Court, D. Kansas

December 11, 2018

FLORA GILPATRICK, et al., Plaintiffs,
v.
HARPER CO., KANSAS, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO QUASH

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE.

         Now before the Court is Defendants' Motion to Quash Subpoena. (Doc. 14.) Having reviewed the submissions of the parties, Defendants' motion is GRANTED for the reasons set forth below.

         FACTUAL BACKGROUND

         In the present action, Plaintiffs bring claims for deprivation of civil rights pursuant to 42 U.S.C. § 1983 relating to the death of decedent Brett Moon while he was in custody in the Harper County, Kansas, jail. Plaintiffs are the mother and brother of decedent, who bring this action alleging that his death resulted from a violation of his Constitutional rights by Defendants Harper County and Sheriff Tracy Chance in his official and individual capacities. Plaintiffs also bring a wrongful death claim pursuant to state law.

         Plaintiffs contend they previously sought information from the Kansas Bureau of Investigation (“KBI”) about its investigation into decedent's death. “That request was met with KBI's response that a subpoena would be required in an effort to gain said information.” (Doc. 18, at 1.) Plaintiffs indicate that “one of the reasons for Plaintiffs filing this lawsuit is to obtain a subpoena for the KBI investigation file and/or report” in an effort to determine “who all of the potential defendants are so that notice under K.S.A. 12-105(b) may be given and suit brought accordingly against all of the potential defendants.” (Id.)

         Plaintiffs filed a “Notice of Subpoena” on October 2, 2018, indicating that they intended to serve the subpoena at issue on the KBI “on October 3, 2018, or as soon thereafter as service may be effectuated.” (Doc. 6.) Defendants bring the present motion arguing that the KBI subpoena was “both premature and [P]laintiffs have not complied with the prerequisites to its service, ” in violation of Fed.R.Civ.P. 26 and 45. (Doc. 15.)

         ANALYSIS

         Defendants contend the KBI subpoena was served before the parties' Rule 26(f) scheduling planning conference. (Id., at 3.) Defendants also contend Plaintiff did not comply with the Rule 45(a) requirement of serving a notice and copy of the subpoena on each party because Defendants had no counsel of record at the time the “Notice of Subpoena” was served. (Id.) Defendants argue that this “deprived [them] of their right to object in advance to the service of the subpoena.” (Id.) Plaintiffs respond that Defendants do not have standing to object to the subpoena. The Court will address these arguments below.

         A. Standing.

         As an initial matter, Plaintiffs contend Defendants do not have standing to bring this Motion to Quash because the subpoena at issue was not served on Defendants, but rather was served on the KBI, a third party. (Doc. 16, at 3.) See McDonald v. Kellogg Co., No. 08-2473-JWL, 2009 WL 10664465, at *1 (D. Kan. Nov. 5, 2009) (“Only the person or entity to whom a subpoena is directed can seek to quash or modify that subpoena under Rule 45[d].”). “An exception to this rule is when the party challenging the subpoena ‘has a personal right or privilege in respect to the subject matter requested in the subpoena.'” Holick v. Burkhart, No. 16-1188-JTM-KGG, 2017 WL 3723277, at *5 (D. Kan. Aug. 28, 2017) (quoting Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D. Kan. 1995). Plaintiffs argue that in the present case, “Defendants have no such right or privilege, and hence, no standing to quash the KBI subpoena.” (Doc. 16, at 3.)

         The Court acknowledges that Defendants do not have standing to raise certain substantive objections to the subpoena. For instance, without standing, Defendants cannot argue that the subpoena seeks to harass or embarrass the recipient or that it encompasses information protected by the attorney-client privilege or work product doctrine. Defendants do, however, have standing to object to the timing of the subpoena and Plaintiff's failure to comply with Rules 26 and 45. Plaintiffs' objection as to Defendants' standing to object to the subpoena is overruled.

         B. Legal Standards.

         1. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.