Take the Hint: No Discovery Subpoenas After Discovery Closes

I have twice posted about cases noting what I thought was obvious: the power to subpoena starts when discovery opens and ends when it closes.[1] Two local cases reiterated that point.

The first problem in Singleton v. Jupiter Cmtys., LLC was the “documents Plaintiff seeks are clearly Defendant’s documents, not those of the non party witness, and Rule 45 is not the proper procedure to seek discovery more appropriately subject to a Rule 34 request.”[2] The second problem was “the subpoena duces tecum was issued after the deadline for serving written discovery in time for Defendant to respond before the discovery cutoff, and therefore intended to circumvent the court imposed deadline.” “It is black letter law that parties may not issue subpoenas pursuant to Federal Rule of Civil Procedure 45 as a means to engage in discovery after the discovery deadline has passed.”

Niemeyer v. Ford Motor Co. one upped that. “[D]iscovery in this case has been closed since April 18, 2011, approximately twenty months.”[3] But that was a minor problem compared to the next one. “This case is closed. The jury reached its verdict on November 7, 2012, and the court signed the final judgment on November 19, 2012. There is no pending action, Rule 45 does not apply, and there are no issues remaining to which the information sought in the subpoena might be relevant.” The subpoena was quashed because “Rule 45 does not authorize a party to issue a subpoena after discovery closes, much less after the entire case has been decided.”

[1]March 23, 2015; August 6, 2015.
[2] No. 2:12-cv-02056, 2014 U.S. Dist. LEXIS 8279 (D. Nev. Jan. 15, 2014).
[3] No. 2:09-cv-2091, 2012 U.S. Dist. LEXIS 181058 (D. Nev. Dec. 20, 2012).