United States District Court, D. South Carolina, Rock Hill Division
Ekoko K. Avoki; Francisco K. Avoki, Plaintiffs,
City of Chester SC; Police of Chester SC; PTL Covington, individually; Doe I-XXX, Defendants.
J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
Ekoko K. Avoki and Francisco K. Avoki, self-represented
litigants, filed this civil action against the named
defendants. This matter is before the court on the
plaintiffs' motion for subpoenas. (ECF No. 122.)
Plaintiffs' motion appears to request subpoenas duces
tecum from the South Carolina Department of Motor Vehicles
(“SCDMV”) and the Hy-Gloss Paint and Body Shop.
in civil cases filed in this court is governed by the Federal
Rules of Civil Procedure. These rules are applicable to all
litigants including those who are proceeding pro se.
According to Rule 26(b)(1) of the Federal Rules of Civil
Procedure, “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense.”
court's authorization of a subpoena duces tecum requested
by an in forma pauperis plaintiff is subject to limitations,
including the relevance of the information sought as well as
the burden and expense to a person subject to the subpoena.
See Fed.R.Civ.P. 26(b) & 45(d)(1); Jackson v.
Brinker, No. IP 91-471-C, 1992 WL 404537, at *7 (S.D.
Ind. Dec. 21, 1992) (finding that the court may refuse an
indigent party's request to have the United States
Marshals Service serve a Rule 45 subpoena duces tecum that is
“frivolous, requests immaterial or unnecessary
information, is unduly burdensome, would be reasonably
certain to result in the indigent's responsibility for
significant compliance costs for which he cannot provide, or
is otherwise unreasonable or abusive of the court's
process”). The court notes that, although the
plaintiffs have been granted in forma pauperis status
pursuant to 28 U.S.C. § 1915(d), such status does not
mean that the plaintiffs' discovery expenses are
underwritten or waived. See, e.g., Badman v. Stark,
139 F.R.D. 601, 604 (M.D. Pa. 1991) (holding that an indigent
plaintiff seeking issuance of a subpoena must simultaneously
tender the witness fees and the estimated mileage allowed by
law with the service of the subpoena); see also Tabron v.
Grace, 6 F.3d 147, 159 (3d Cir. 1993) (“There is
no provision in [28 U.S.C. § 1915] for the payment by
the government of the costs of deposition transcripts, or any
other litigation expenses, and no other statute authorizes
courts to commit federal monies for payment of the necessary
expenses in a civil suit brought by an indigent
litigant.”). While the plaintiffs' in forma
pauperis status may permit service of a subpoena duces tecum
by the United States Marshals Service without prepayment of
the cost of service,  the court must limit a plaintiff's
discovery requests if the documents sought from the non-party
are “cumulative or duplicative, or can be obtainable
from some other source that is more convenient, less
burdensome, or less expensive.” See Fed.R.Civ.P.
26(b)(2)(C); see also Badman, 139 F.R.D. at 605
(“The Federal Rules of Civil Procedure were not
intended to burden a non-party with a duty to suffer
excessive or unusual expenses in order to comply with a
subpoena duces tecum.”). Additionally, the plaintiffs
should demonstrate that the requested records are obtainable
only through the identified third party and that they have
made provisions to pay the reasonable costs associated with
the discovery they seek. See Badman, 139 F.R.D. at
605; Sickler v. Curtis, No. 2:11-cv-0205, 2012 WL
3778941, at *2 (E.D. Cal. Aug. 31, 2012).
their current motion, Plaintiffs have not presented all of
the information necessary for the issuance of a subpoenas
duces tecum. Specifically, Plaintiffs must:
(1) clearly identify what documents they are seeking and from
(2) explain how the requested documents are relevant to their
(3) show that the requested documents are obtainable only
through the identified third party;
(4) show that they have arranged for service of their
proposed subpoenas duces tecum pursuant to Rule 45 of the
Federal Rules of Civil Procedure or, in the alternative,
provide the court with completed USM-285 forms so that
service can be effected by the United States Marshals Service
(see 28 U.S.C. § 1915(d); see also Fed.R.Civ.P.
(5) demonstrate to the court that they have made provision or
have the funds necessary to pay the subpoenaed party for the
costs associated with the production of the requested
that Plaintiffs' motion for subpoenas is denied with
leave to re-file to provide the court with the additional
information outlined above within fourteen (14) days from the
date of this order.