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Ettel v. Allen

United States District Court, D. South Carolina

July 31, 2018

James P. Ettel, Plaintiff,
v.
Doctor Allen, Intern Palmetto Retina Center, Defendant.

          ORDER

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         Plaintiff James P. Ettel, a self-represented civil detainee, filed this civil action alleging a violation of his civil rights. This matter is before the court on the plaintiff's motion for subpoenas. (ECF No. 27.) Plaintiff's motion appears to request documents from two non-parties-Palmetto Retina Care and U.S.C. Palmetto Health-concerning Defendant Allen. (ECF No. 27.)

         Discovery 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.”

         The 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 plaintiff has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915(d), such status does not mean that the plaintiff's 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 plaintiff's 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, [1] 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 plaintiff should demonstrate that the requested records are obtainable only through the identified third party and that he has made provisions to pay the reasonable costs associated with the discovery he seeks. 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).

         In his current motion, Plaintiff has not presented all the information necessary for the issuance of a subpoenas duces tecum. Specifically, Plaintiff must:

(1) clearly identify what documents he is seeking and from whom;
(2) explain how the requested documents are relevant to his case;
(3) show that the requested documents are obtainable only through the identified third party;
(4) show that he has arranged for service of his 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. 4(c)(3)); and
(5) demonstrate to the court that he has made provision or has the funds necessary to pay the subpoenaed party for the costs associated with the production of the requested documents.

         It is therefore

         ORDERED 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.

         IT IS ...


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