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Case 1:03-cv-01041-PSF-BNB

Document 116-3

Filed 09/16/2005

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Westlaw Download Summary Report for COTE,KRISTI A 4841518 Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: Friday, September 16, 2005 17:28:00 Central COTE DCT Not Reported in F.Supp.2d 283 1 0

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Case 1:03-cv-01041-PSF-BNB

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2002 WL 1822432 (D.Kan.) (Cite as: 2002 WL 1822432 (D.Kan.))

Motions, Pleadings and Filings Only the Westlaw citation is currently available. United States District Court, D. Kansas. WESTERN RESOURCES, INC., Plaintiff, v. UNION PACIFIC RAILROAD CO., et al., Defendants. No. 00-2043-CM. July 23, 2002. MEMORANDUM AND ORDER DAVID J. WAXSE, Magistrate Judge. *1 Pending before the Court is Plaintiff's Motion to Compel William E. Greenwood's Compliance with Subpoena (doc. 331). For the reasons stated below, Plaintiff's Motion is granted. Relevant Factual Background This case arises out of agreements between Plaintiff and Defendants Union Pacific ("UP") and The Burlington Northern and Santa Fe Railway Company ("BNSF") (collectively "the Defendants") for the transportation of coal from the Powder River Basin in Wyoming to Plaintiff's Jeffrey Energy Center near Topeka, Kansas. Pursuant to Fed.R.Civ.P. 26(a)(2), Defendants disclosed William E. Greenwood ("Greenwood") as one of their expert witnesses in this case. Greenwood submitted an expert report pursuant to Fed.R.Civ.P. 26(a)(2)(B) on October 1, 2001. On November 7 and 8, 2001, Greenwood was deposed by Plaintiff's counsel. Greenwood's deposition covered a variety of topics and included a discussion of Greenwood's prior employment by predecessors of BNSF from 1963 to 1994. Plaintiff's counsel asked a series of questions concerning Greenwood's financial interest in BNSF leading up to and following his

departure from the company. Relevant to the pending Motion, Greenwood testified his compensation had risen to the level of approximately $1 million per year at the time he left the BNSF and that prior to his departure, he was the second largest shareholder of company stock among the company corporate officers. Greenwood further testified that his pension included both a lump sum cash payment of approximately $2 million and a monthly payment for the balance of his life. Finally, Greenwood testified he is being compensated for his work on this case at a rate of $500 per hour and, at the time of his deposition last fall, had worked approximately 300 hours on the case. On or about November 27, 2001, Plaintiff initiated service of a document subpoena upon Greenwood by certified mail, with copies simultaneously served upon Defendants' counsel by facsimile. The subpoena called for production of the referenced documents by December 18, 2001. The United States Post Office made three recorded attempts to deliver the subpoena to Greenwood, but service was not accepted. Plaintiff states that on December 19, 2001, counsel for BNSF advised Plaintiff's counsel that, although Greenwood was aware of the November 27 subpoena, Greenwood would not be producing any documents because he had not received formal service of the subpoena. Plaintiff states it then retained a process server to personally serve the subpoena. But, when service was attempted, the server was told Greenwood was on vacation and Greenwood's staff refused to accept delivery on Greenwood's behalf. Plaintiff maintains the server subsequently left the subpoena in Greenwood's mailbox. [FN1] Plaintiff then served an additional copy of the subpoena on Greenwood by Federal Express. [FN2] Although Greenwood nor his staff signed for the Federal Express package, tracking documents generated by Federal Express indicate

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2002 WL 1822432 (D.Kan.) (Cite as: 2002 WL 1822432 (D.Kan.))

Greenwood previously had executed a signature release waiver, which means any signature requirement is waived in order for signature in order to accomplish delivery. [FN3] FN1. See Affidavit of Service, Exhibit 4 to Plaintiff's Motion to Compel (doc. 331). FN2. See Federal Express Tracking Results, Exhibit 5 to Plaintiff's Motion to Compel (doc. 331). FN3. Id. *2 On January 18, 2002, Plaintiff filed this Motion to Compel Greenwood to comply with the subpoena. In response, Greenwood states he is not required to respond to the subpoena because · he was never personally served with the subpoena; · even if he had been personally service with the subpoena, such request for discovery was untimely in light of the December 21, 2001 discovery deadline; · the document requests are overly broad on their face; and · the document requests set forth in the subpoena impose an undue burden on Greenwood because they are cumulative in nature. The Court will address each of Greenwood's objections in turn. · Personal Service The issue before the Court is whether service of a subpoena on a non-party individual must be accomplished by personal service or whether, at least under these circumstances, service upon a non-party's attorney or service upon the non-party by Federal Express when the party has signed a signature waiver with Federal Express satisfies the requirements of Rule 45(b)(1). Fed.R.Civ.P. Rule 45(b)(1) provides that "[s]ervice of a subpoena upon a person named

therein shall be made by delivering a copy thereof to such person...." Although the rule does not use the term "personal service," many courts have interpreted the relevant language as permitting exclusively this method of service. [FN4] Several courts have held, however, that personal service of a subpoena is not required. [FN5] FN4. See, e.g., F.T.C. v. Compagnie de Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300, 1312-13 (D.C.Cir.1980) (stating, in dicta, that "under the Federal Rules, compulsory process may be served upon an unwilling witness only in person"); Agran v. City of New York, 1997 WL 107452, at *1 (S.D.N.Y.1997) (noting that "the weight of authority is that a subpoena duces tecum must be served personally" and "the Court is without authority to sanction an alternative form of service"); Conanicut Investment Co. v. Coopers & Lybrand, 126 F.R.D. 461, 462 (E.D.N.Y.1989) ( "Nowhere in Rule 45 is the Court given discretion to permit alternate service in troublesome cases."). FN5. See, e.g., King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y.1997) ("the court sees no reason for requiring in hand delivery so long as service is made in a manner that reasonably insures actual receipt of the subpoena by the witness"); First Nationwide Bank v. Shur, 184 B.R. 640, 642 (E.D.N.Y.1995) (" 'delivering' a copy of a subpoena, for the purposes of Rule 45 includes any act or series of acts that reasonably assures the entity to which it is addressed fair and timely notice of its issuance, contents, purpose and effect"); Hinds v. Bodie, 1988 WL 33123, at *1 (E.D.N.Y.1988) (court ordered service by alternative means after five unsuccessful attempts to serve subpoena on non-party

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2002 WL 1822432 (D.Kan.) (Cite as: 2002 WL 1822432 (D.Kan.))

witness). The language of Rule 45 does not explicitly demand personal service of a subpoena, but instead requires only that a copy be "deliver[ed]" to the person whose attendance or production of documents is sought. Such language "neither requires in-hand service nor prohibits alternative means of service." [FN6] Further, reading the relevant language to require personal service would render superfluous that part of Rule 45 indicating that proof of service is accomplished "by filing with the clerk of the court ... a statement of the date and manner of service." [FN7] Moreover, if Rule 45 is read as requiring personal, in-hand service, then the language in Rule 4(e) specifying that "delivery" to the relevant individual be done "personally" would be pure surplusage. [FN8] FN6. King, 170 F.R.D. at 356. FN7. Fed.R.Civ.P. 45(b)(3). FN8. See Fed.R.Civ.P. 4(e)(2) (service may be effected by "delivering a copy of the summons and of the complaint to the individual personally."). In accordance with the interpretative principle that the rules "be construed and administered to secure the just, speedy, and inexpensive determination of every action" [FN9] and given the textual ambiguity of Rule 45 combined with the repeated attempts of the Plaintiff to effectuate personal service, and the cost and delay that would result by requiring further attempts at such service, this Court thus joins those holding that effective service under Rule 45 is not limited to personal service. The Federal Rules of Civil Procedure should not be construed as a shield for a witness who is purposefully attempting to evade service. Because the alternative service used here--service upon the non-party's counsel and Federal Express--reasonably insures actual receipt of the

subpoena by the witness, the "delivery" requirement of Rule 45 is met, and Greenwood has been provided with fair and timely notice of his obligation to produce documents. FN9. Fed.R.Civ.P. 1. *3 Contrary to Greenwood's assertion, the decision in Alexander v. Jesuits of Missouri Province [FN10] does not stand for the general proposition that service of a subpoena on a non-party individual can be accomplished in this jurisdiction only by personal service. In Alexander, the court found the subpoena at issue was not enforceable, but this decision was based on a finding by the court that the overall conduct of the plaintiffs' counsel in the scheduling of the nonparty deposition violated the Model Rules of Professional Conduct and Fed.R.Civ.P. 45. [FN11] More specifically, the Alexander court found that the subpoena unenforceable for the following reasons: FN10. 175 F.R.D. 556 (D.Kan.1997). FN11. Id. · the subpoena was served only three business days before the scheduled deposition; · the subpoena was not accompanied by the required tender of witness fee and mileage; · the subpeona was not served on the witness personally; and · the subpoena required a nonparty witness, who was 41 years old, worked full-time and was pregnant, to appear for deposition at 8:00 a.m.--a time much earlier than ordinary--in a city that was more than 60 miles away from her home. [FN12] FN12. Id. The Alexander court does not specifically address the issue of whether service other than personal service upon a nonparty individual is available under the federal rules, but instead holds there is

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2002 WL 1822432 (D.Kan.) (Cite as: 2002 WL 1822432 (D.Kan.))

no duty to respond to a subpoena that is served only three business days before the scheduled deposition, is not accompanied by the required tender of witness fee and mileage, is not served on the witness personally and requires a 41 year old pregnant nonparty witness to appear for deposition at 8:00 a.m.--a time much earlier than ordinary--in a city that was more than 60 miles away from her home. [FN13] Thus, the Court finds the facts and circumstances presented here are readily distinguishable from those presented in Alexander. FN13. Id. · Timeliness Greenwood argues that, even if the subpoena had been properly served, such request for discovery was untimely in light of the December 21, 2001 discovery deadline. Given the unique circumstances present, the Court disagrees. Plaintiff originally initiated service of the subpoena by certified mail on November 27, 2001, with copies simultaneously served upon Defendants' counsel by facsimile. The subpoena called for production of the referenced documents by December 18, 2001--prior to the close of discovery. Thus, the Court rejects Greenwood's argument on this issue. · Overly Broad Upon review of the requests at issue, the Court agrees with Greenwood and finds many of the requests are overly broad on their face to the extent they utilize all-encompassing phrases such as "relate to" or "relating to." The federal discovery rules provide that "request[s] shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity." [FN14] Moreover, "[r]equests should be reasonably specific, allowing the respondent to readily identify what is wanted." [FN15]

FN14. Fed.R.Civ.P. 34(b). FN15. Western Resources, Inc. v. Union Pacific Railroad, No. 00- 2043-CM, 2001 WL 1718368, *3 (D.Kan. Dec. 5, 2001) (quoting Audiotext Communications v. U.S. Telecom, Inc., No. 94-2395-GTV, 1995 WL 18759, at * 1 (D.Kan. Jan. 17, 1995)). *4 Courts may find requests overly broad when they are "couched in such broad language as to make arduous the task of deciding which of numerous documents may conceivably fall within [their] scope." [FN16] Use of broad terms such as "relate to" or "relating to" provides no basis upon which an individual or entity can reasonably determine what documents may or may not be responsive. [FN17] Here, as in Cotracom, the phrases "relate to" and "relating to" do not modify a specific type of document, but rather all documents; thus, their very use make the requests overly broad on their face. FN16. Id. FN17. Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 666 (D.Kan.1999) (citing Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D.Kan.1996)). Despite the overly broad nature of many of the referenced requests on their face due to the "relate to" or "relating to" language, Greenwood has a duty under the federal rules to respond to the extent that discovery requests are not objectionable. [FN18] The Court, however, will not compel further response when inadequate guidance exists to determine the proper scope of a request for discovery. [FN19] Although Plaintiff utilized omnibus phrases in the requests at issue here, the Court finds the balance of the language used in the requests provides adequate guidance to determine the scope of the requests propounded. Accordingly, the Court rejects Greenwood's

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2002 WL 1822432 (D.Kan.) (Cite as: 2002 WL 1822432 (D.Kan.))

argument that the requests are overly broad to the extent they fail to reasonably identify with precision the documents sought. FN18. Fed.R.Civ.P. 34(b). FN19. Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. at 666 (citing Schartz v. Unified School Dist. No. 512, No. Civ. A. 95- 2491-EEO, 1996 WL 741384, at *1 (D.Kan. Dec. 18, 1996) (addressing duty to answer interrogatories and respond to requests for production); see, also, Mackey v. IBP, Inc., 167 F.R.D. 186, 198 (D.Kan.1996) (addressing duty to answer interrogatory)). · Undue Burden/Cumulative As the party resisting the discovery, Greenwood has the burden to show facts justifying his objections. [FN20] Those resisting discovery must demonstrate that the time or expense involved in responding to requested discovery is unduly burdensome. [FN21] Moreover, the party resisting discovery has the obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to produce the requested documents. [FN22] This information is necessary to enable the Court to determine the burden imposed by the discovery. "In making a decision regarding burdensomeness, a court should balance the burden on the interrogated party against the benefit to the discovering party of having the information." [FN23] Discovery should be allowed unless the hardship is unreasonable in the light of the benefits to be secured from the discovery. [FN24] FN20. See Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D.Kan.1991). FN21. Williams v. Bd. of Cty. Commissioners of the Unified Government

of Wyandotte Cty., 98-2485-JTM, 2000 WL 1475873, *1 (D.Kan. Aug. 14, 2000). FN22. Id. FN23. Hoffman v. United Telecomms., Inc., 117 F.R.D. 436, 438 (D . Kan.1987). FN24. Snowden, 137 F.R.D. at 333. Greenwood has not shown the discovery to be irrelevant or cumulative--he only asserts that the subject of Greenwood's financial interest in BNSF was discussed at Greenwood's deposition. Neither has Greenwood provided details of the alleged burden upon him in terms of time and money required to produce the requested documents. This detailed information is necessary to enable the Court to determine the burden imposed by the discovery. On the facts before it, the Court finds Plaintiff's need for the documents requested outweighs any speculative burden to Greenwood. Accordingly, Plaintiff's Motion to Compel is granted and Greenwood shall respond to the referenced subpoena within eleven (11) days from the date of this Order. *5 IT IS SO ORDERED. Not Reported in F.Supp.2d, 2002 WL 1822432 (D.Kan.) Motions, Pleadings and Filings (Back to top) · 2:00cv02043 (Docket) (Jan. 24, 2000) END OF DOCUMENT

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