United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. KOLAR, MAGISTRATE JUDGE.
matter is before the Court on a Verified Motion for Issuance
of a Subpoena [DE 45], filed by Defendants Purdue University
(“Purdue”), et al., on August 15, 2019.
Plaintiff John Doe filed a response on September 3, 2019, and
Defendants filed their reply on September 4, 2019. In the
instant motion, Defendants request that the Court issue a
subpoena directing non-parties the United States Navy
(“Navy”), Naval Reserve Officers Training Corps
(NROTC), and Purdue Naval Reserve Officers Training Corps
(“Purdue NROTC”) to produce certain documents
that may be in their possession. For the following reasons,
the motion is granted.
November 15, 2017, Magistrate Judge Paul R. Cherry granted
Defendants' previous motion to dismiss and dismissed the
case without prejudice. On June 28, 2019, the Seventh Circuit
Court of Appeals reversed and remanded this matter for
further proceedings. Defendants represent that, following the
Court of Appeals' decision, they contacted the Navy
General Counsel's office to determine whether the Navy,
NROTC, or Purdue NROTC was the custodian of any records
pertaining to Plaintiff, and further whether those parties
would comply with a request for production and subpoena
duces tecum issued by defense counsel. (Mot.
Subpoena 3, ECF No. 45). The Navy General Counsel's office
informed defense counsel that Purdue NROTC had responsive
documents, but that either a release from Plaintiff or a
judge-executed subpoena would be necessary before documents
could be produced. Id. Following several
communications, Plaintiff informed Defendants that he would
not execute such a release, and thus Defendants filed the
instant motion. Id. at 3-4.
to Federal Rule of Civil Procedure 45(a)(1)(A)(iii), a party
may serve a subpoena commanding a non-party to testify at a
deposition and produce designated documents. Rule
45(d)(3)(A)(iv) requires a court to quash or modify a
subpoena based on a timely motion if the subpoena subjects a
person to an undue burden. Factors considered in determining
whether a subpoena is unduly burdensome include non-party
status, relevance, the issuing party's need for the
discovery, and the breadth of the request. Uppal v.
Rosalind Franklin Univ. of Med. & Sci., 124
F.Supp.3d 811, 813 (N.D. Ill. 2015). The party seeking to
quash the subpoena bears the burden of proving that it is
unduly burdensome or that the information sought is
privileged. Malibu Media, LLC v. John Does 1-14, 287
F.R.D. 513, 516 (N.D. Ind. 2012).
broad scope of discovery, which applies to discovery requests
sent to non-parties as well as parties, permits a party to
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). “The limits and breadth of
discovery expressed in Rule 26 are applicable to non-party
discovery under Rule 45.” Noble Roman's, Inc.
v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 307 (S.D.
Ind. 2016). When a party seeks discovery that is
“unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less
burdensome, or less expensive” or is outside of the
scope of discovery, the Court must limit discovery.
Seventh Circuit Court of Appeals has stated that “there
is a strong public policy in favor of disclosure of relevant
materials.” Patterson v. Avery Dennison Corp.,
281 F.3d 676, 681 (7th Cir. 2002). The Court of Appeals has
further instructed that “[b]efore restricting
discovery, the court should consider ‘the totality of
the circumstances, weighing the value of the material sought
against the burden of providing it,' and taking into
account society's interest in furthering ‘the
truthseeking function' in the particular case before the
court.” Id. (internal citations omitted).
Seventh Circuit Court of Appeals remanded this matter for
consideration of whether, inter alia, Defendants
violated the Fourteenth Amendment by depriving Plaintiff of a
liberty interest: the freedom to pursue naval service, his
career of choice. Doe v. Purdue Univ., 928 F.3d 652,
661-63 (7th Cir. 2019). Defendants argue that the documents
at issue are relevant to this question. Specifically,
Defendants represent that, in their belief, the Navy, NROTC,
or Purdue NROTC has documents pertaining to the following:
(1) an investigation of Plaintiff, regarding his alleged
sexual assault of Jane Doe, (2) Plaintiff's service
record with Purdue NROTC, (3) Plaintiff's student file,
(4) a “disenrollment package, ” and (5) emails
and statements from Plaintiff and Jane Doe. (Mot. Subpoena 4,
ECF No. 45). As discussed below, Plaintiff disputes this,
most notably by asserting that there is no such
note that the Complaint alleges that Plaintiff lost a
scholarship and future career opportunities due to
Purdue's investigation. Id. at 5. Accordingly,
documents pertaining to the value and terms of this
scholarship, such as those that may be in Plaintiff's
“disenrollment package” and related emails, and
the extent and nature of any career opportunities with the
Navy are relevant to proving or defending against the
allegations in the Complaint. Id. at 5-6. Defendants
assert that Purdue NROTC's student file and service
record are also likely to contain information regarding the
dates Plaintiff entered the program and his official status
when he left, and that such documents are germane to the
question of whether Plaintiff's resignation from the
program was voluntary. Id. at 6. Further, Defendants
explain that the documents sought will confirm whether Purdue
NROTC or the Navy has any additional facts concerning
Plaintiff's interactions with Jane Doe. Id.
contend that the relevant factors in Federal Rule of Civil
Procedure 26 justify the Court's execution of the
requested subpoena. Defendants explain that the Navy is the
primary and potentially only entity with access to all the
documents sought by the subpoena, and in their absence
Defendants will have only Plaintiff's characterizations
of his relationship and past dealings with the Navy and
Purdue NROTC. Id. Defendants argue that these
documents are necessary to ensure the parties are equally
placed to present and defend claims. Id.
response, Plaintiff argues that Defendants are attempting to
“engage in a fishing expedition in an effort to come up
with something to avoid the U.S. Court of Appeals for the
Seventh Circuit rul[ing] in this case recognizing Plaintiff
John Doe's constitutionally protected
‘stigma-plus' liberty interest and rejecting
Defendants' attack upon that interest.” (Mem.
Opp'n 1, ECF No. 53). Plaintiff contends that none of the
five categories of documents noted by Defendants justify the
authorization of the “proposed broad subpoena, ”
stating: (1) the only investigation into Plaintiff's
alleged misconduct was conducted by Purdue; there was no
separate Navy investigation or proceeding, (2) NROTC has no
documents material to this case that were not sent to it by
Purdue, (3) Plaintiff's student file is with Purdue, not
NROTC, (4) there is no “disenrollment package, ”
and (5) emails and statements from Plaintiff and Jane Doe
were collected by Purdue investigators, not NROTC.
Id. at 17-18. Plaintiff asserts that “[t]he
statement of these categories make ...