Free Motion to Compel - District Court of Delaware - Delaware

Case 1:07-cv-00486-SLR-MPT

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD ANDRUS, Plaintiff, v. CITY OF WILMINGTON; CITY OF WILMINGTON POLICE DEPARTMENT; CORPORAL HENRY CANNON; OFFICER CPL. CHRIS CONNELLY; OFFICER MARTY STORY; OFFICER STEPHEN BROCK; and OFFICER JEFFREY GLENN, Defendants. : : : : : : : : : : : : : : :

C.A. No. 07-486***

DEFENDANTS' MOTION TO ENFORCE SUBPOENA DIRECTED TO CONNECTIONS COMMUNITY SUPPORT PROGRAM Defendants, by and through their undersigned counsel, respectfully move this Honorable Court, pursuant to Fed.R.Civ.P. 45(c)(2)(B) and (e), for an order compelling Connections Community Support Program ("Connections") to produce the documents designated in Defendants' subpoena dated August 4, 2008, and holding Connections in contempt for failing without adequate excuse to fully comply with a duly issued and served subpoena. In support of this Motion, Defendants state as follows: 1. This case arises from Plaintiff's allegations that five City of Wilmington police

officers used excessive force in attempting to transport him from Connections to the Delaware Psychiatric Center on August 8, 2005. 2. On April 8, 2008, Defendants served a subpoena on Connections (the "Original

Subpoena"), requesting copies of "office records, reports, notes, writings, correspondence, rehabilitation records, admission and discharge summaries, patient information forms and any other

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information concerning Richard L. Andrus (D.O. B. 2/6/56), including but not limited to any records related to Mr. Andrus's transport to or from Connections on August 8, 2005, and any civil commitment paperwork to have Mr. Andrus admitted to the Delaware State Hospital for treatment." See Original Subpoena, Ex. "A" hereto. Defendants also provided Connections with a copy of a medical authorization pursuant to which Mr. Andrus consented to its release of the requested information. See Ex. "B" hereto. The Original Subpoena was mailed to the Records Custodian of Connections at 500 W. 10th Street, Wilmington, Delaware 19801. 3. In late June 2008, Connections produced documents regarding Mr. Andrus's

treatment and evaluation at Connections from August 2006 through 2008. However, no records were produced regarding Mr. Andrus's treatment or evaluation at Connections on August 8, 2005 in particular or during the period prior to August 2006. This lawsuit arises from an incident that allegedly occurred at Connections on August 8, 2005. See Complaint ¶ 13, Ex. "C" hereto. In addition, Mr. Andrus indicated in his discovery responses in this action that he has been receiving treatment at Connections for mental health related issues since 2003. See Plaintiff's Response to Defendants' Interrogatory No. 4, Ex. "D" hereto. Therefore, Defendants have reason to believe that Connections is in possession of documents relating to Mr. Andrus for the period from 2003 to 2006. 4. On July 7, 2008, Defendants' counsel sent Connections a letter, informing it of the

deficiencies in its response to the Original Subpoena. That letter requested that Connections produce documents relating to Mr. Andrus's treatment at its facility during the period from 2003 to 2006 or provide written confirmation that it no longer has any such documents in its possession, custody or control. See 7/7/08 Letter to Connections, Ex. "E" hereto. 5. Connections never responded to the July 7, 2008 letter from Defendants' counsel.

Nor did it ever raise any objections to or move to limit the scope of the Original Subpoena.

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6.

On August 4, 2008, Defendants re-issued the subpoena and had it served upon the

records custodian of Connections by a process server, in accordance with Rule 45(b) (the "Reissued Subpoena"). See Reissued Subpoena, Ex. "F" hereto; and Proof of Service of Reissued Subpoena, Ex. "G" hereto). Connections' response to the Reissued Subpoena was due on August 18, 2008. On August 4, 2008, Defendants' counsel also sent Connections a letter, once again informing it of the deficiencies in its response to the Original Subpoena. That letter further informed Connections that Defendants were re-issuing the subpoena and having it served by a process server to ensure that Connections had received it. The letter also advised Connections that, if it failed to produce the requested information relating to the period from 2003 through 2006 by August 18, 2008, Defendants would file a motion to enforce the Re-issued Subpoena and for contempt with the United States District Court for the District of Delaware. See 8/4/08 letter, Ex. "H" hereto. 7. The August 18, 2008 deadline has passed, and Connections has failed to produce the

requested information relating to the period from 2003 through 2006. Connections has not raised any objections to either the Original Subpoena or the Re-issued Subpoena pursuant to Fed.R.Civ.P. 45(c)(2)(B). Nor has it moved to quash or modify either subpoena pursuant to Rule 45(c)(3). 8. Pursuant to Rule 45(e), "[t]he issuing court may hold in contempt a person who,

having been served, fails without adequate excuse to obey the subpoena. . . ." As Connections has failed without adequate excuse to fully comply with the Re-issued Subpoena, which was duly issued and served, Defendants respectfully move this Honorable Court to compel Connections to produce all of the documents requested in that subpoena relating to the period from January 1, 2003 through December 31, 2006, hold Connections in contempt, and impose any other sanctions necessary to penalize Connections' failure to fully comply with that subpoena.

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WHEREFORE, for the foregoing reasons, Defendants respectfully request that the Court grant their Motion to Enforce Subpoena Directed to Connections Community Support Program.

CITY OF WILMINGTON LAW DEPARTMENT

/s/ Andrea J.F. Rhen Andrea J.F. Rhen, Esq. (DE Bar Id. No. 3831) Senior Assistant City Solicitor City of Wilmington Law Department 800 N. French Street, 9th Floor Wilmington, DE 19801 (302) 576-2175 Attorney for Defendants

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : CITY OF WILMINGTON; CITY OF : WILMINGTON POLICE DEPARTMENT; : CORPORAL HENRY CANNON; : OFFICER CPL. CHRIS CONNELLY; : OFFICER MARTY STORY; : OFFICER STEPHEN BROCK; and : OFFICER JEFFREY GLENN, : : Defendants. : ORDER The Court, having considered Defendants' Motion to Enforce Subpoena Directed to Connections Community Support Program ("Connections") and any opposition thereto, it is hereby ORDERED that the Motion is GRANTED; and it is further ORDERED that Connections shall, no later than 30 days from the date of this Order, disclose to Defendants' counsel any and all office records, reports, notes, writings, correspondence, rehabilitation records, admission and discharge summaries, patient information forms and any other information concerning Richard L. Andrus (D.O. B. 2/6/56) for the period from January 1, 2003 through December 31, 2006, including but not limited to any records related to Mr. Andrus's transport to or from Connections on August 8, 2005, and any civil commitment paperwork to have Mr. Andrus admitted to the Delaware State Hospital for treatment; and it is further RICHARD ANDRUS,

C.A. No. 07-486***

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ORDERED that Connections is deemed in contempt of court, and shall remit a monetary sanction in the amount of $ _____________ no later than ______________________, 2008.

_________________________________ J.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : CITY OF WILMINGTON; CITY OF : WILMINGTON POLICE DEPARTMENT; : CORPORAL HENRY CANNON; : OFFICER CPL. CHRIS CONNELLY; : OFFICER MARTY STORY; : OFFICER STEPHEN BROCK; and : OFFICER JEFFREY GLENN, : : Defendants. : RICHARD ANDRUS,

C.A. No. 07-486***

CERTIFICATE OF SERVICE I, Andrea J. F. Rhen, Esquire, hereby certify that on this 25th day of August, 2008, I electronically filed the Defendants' Motion to Enforce Subpoena Directed to Connections Community Support Program with the Clerk of Court using CM/ECF which will send notification of such filing(s) and that this document is available for viewing and downloading from CM/ECF. Michael W. Modica, Esquire 715 King Street, Suite 300 P.O. Box 437 Wilmington, DE 19899 I also sent via U.S. Mail, postage pre-paid a copy of this document to the following: Connections Community Support Program 500 W. 10th Street Wilmington, DE 19801

/s/ Andrea J. F. Rhen , Esquire Andrea J. F. Rhen, Esquire (DE Bar Id. No. 3831) 800 N. French Street, 9th Floor Wilmington, DE 19801 (302) 576-2175 Attorney for Defendants