United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO QUASH
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
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.
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.
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.)
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.)
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.
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.)
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.