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Zukley v. Town of Shererville

United States District Court, N.D. Indiana, Hammond Division

May 19, 2017

JENNIFER ZUKLEY, Plaintiff,
v.
TOWN OF SHERERVILLE, Defendants.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE.

         This matter is before the Court on a Motion to Quash Nonparty Request for Production and Subpoena Duces Tecum [DE 87], filed by Defendants on May 3, 2017. Defendants request that the Court quash a “Request for Production of Documents to a Non-Party” issued by Plaintiff to Dr. Douglas W. Caruana, who provided psychological evaluations to Defendant Schererville Police Department concerning Plaintiff's mental health while she was employed by the Police Department.

         I. Background

         Relevant to the instant Motion, Plaintiff alleges that in December 2013 her supervisors in the Schererville Police Department placed her on administrative leave after she made comments about suicide, but that male officers who made similar comments were not placed on administrative leave or declared unfit for duty. Plaintiff's supervisors required her to meet with a psychologist, Dr. Caruana, before she could return to work. Other Schererville officers, including Officer Jeff Myszak, Officer Matthew Djukic, and Corporal Timothy Aravanitis, were also referred to Dr. Caruana during their employment. Plaintiff hopes to use these male officers as comparators to prove that the Police Department discriminated against her because of her sex.

         On November 30, 2016, the Court granted Plaintiff's Motion to Compel, ordering Defendants to turn over documents concerning administrative leave, psychological evaluations, and fitness for duty examinations for Djukic, Myszak, and Aravanitis. The subject of that Order was limited to Plaintiff's February 2016 request for production of documents sent to Defendants.

         On March 1, 2017, Defendants disclosed Dr. Caruana, who is not a party to this case, as a witness, stating that “Dr. Caruana is expected to testify regarding his discussions with Schererville Police Department on December 5, 2013, regarding Plaintiff and the explanation behind the advice provided in those discussions and his consultation with Plaintiff.” Long before that, on May 13, 2016, Plaintiff's counsel served a request for production of documents on Dr. Caruana. Because Plaintiff did not receive responses to the requests, she resent them to Dr. Caruana on April 19, 2017. Defendants now move to quash the requests.

         II. Standard of Review

         “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that . . . the discovery sought is unreasonably cumulative or duplicative . . . or . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C)(i), (iii).

         III. Analysis

         A. Nonparty Requests for Production of Documents

         Although the parties do not address the issue, it appears that Plaintiff's “Request for Production of Documents to a Non-Party” was not issued in accordance with the Federal Rules of Civil Procedure. The first line of the document requests that Dr. Caruana “produce to Plaintiff's attorney, pursuant to Rule 34 of the Federal Rules of Civil Procedure” various documents in his possession. The discovery request also says that it and “the attached Subpoena Duces Tecum are issued pursuant to the provisions of Rule 34 of the Federal Rules of Civil Procedure.” Federal Rule of Civil Procedure 34, by its own terms, authorizes a party to request documents only from another party. Dr. Caruana is not a party to this lawsuit, and thus Plaintiff cannot request any documents from him under Rule 34. See Fed. R. Civ. P. 34(a); Fed.R.Civ.P. 34(c) (stating that Rule 45 governs nonparty requests for documents).

         The parties did not provide a copy of the Subpoena Duces Tecum to the Court, so the Court cannot determine whether that document complied with Federal Rule of Civil Procedure 45, which governs nonparty subpoenas and document requests. Rule 45 contains very specific content and process requirements for nonparty subpoenas, and without the document, the Court is unable to assess whether Plaintiff met those requirements in issuing the subpoena to Dr. Caruana. Similarly, Rule 45 contains exacting requirements for parties seeking to object to a nonparty subpoena, and it does not appear that Defendants have complied with those requirements.

         Either way, there is a deeper problem with Plaintiff's discovery request, as discussed below, in that it seeks information that is either irrelevant or already in Plaintiff's possession. Accordingly, despite the procedural difficulties both sides have run into in pursuing and objecting to the Dr. Caruana discovery, the Court considers whether the discovery is appropriate ...


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