for the eastern district of louisiana...

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

LUTHER SCOTT, JR. and the LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and all other persons similarly situated, Plaintiffs,

v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants.

Civil Action No. 2:11-cv-00926-JTM-JCW

PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO QUASH SUBPOENA

Plaintiffs Luther Scott, Jr. and the Louisiana State Conference of the NAACP

(“Plaintiffs”) filed a Motion to Quash Subpoena (the “motion”) on July 11, 2012. Doc. 257. On

July 12, 2012, Defendant Schedler filed his Opposition to Plaintiffs’ Motion to Quash Subpoena

(Doc. 260). Plaintiffs now file this Reply Memorandum of Law in Support of Plaintiffs’ Motion

to Quash.

ARGUMENT

Defendant Schedler’s Opposition asserts that his improper subpoena should not be

quashed because he previously noticed the documents at issue through a Rule 34 document

request, thereby putting Plaintiffs’ counsel on notice that he would later subpoena those

Case 2:11-cv-00926-JTM-JCW Document 265 Filed 07/13/12 of 5

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documents. In support of this position, Defendant Schedler maintains that his Rule 45 subpoena

is an extension of his earlier request for production.

Defendant Schedler’s Opposition failed to address, however, the untimeliness of his

subpoena, the short notice with which it was served, or the fact that discovery requests between

parties are made under and governed by Rule 34 of the Federal Rules of Civil Procedure. His

improper subpoena must therefore be quashed.

Defendant Schedler’s representation that “[t]he same documents subject to the subpoena

were requested earlier by Schedler in a request for documents so that [Plaintiffs’] counsel have

had [sic] more than sufficient notice that the documents needed to be identified and compiled for

production,” evinces misunderstanding of the use of subpoena power under Rule 45. In fact, a

Rule 34 request for documents is not intended to serve as “notice” for documents that will later

be subpoenaed under Rule 45. Rather, Rule 34 itself is the proper method through which to

obtain documents from another party. See, e.g., Front-Line Promotions & Marketing, Inc. v.

Mayweather Promotions, 2009 WL 928568, at *5 (E.D. La. Apr. 2, 2009).

Defendant Schedler cannot use a subpoena to gain documents from Plaintiffs on a shorter

schedule than that provided by Rule 34. Defendant Schedler’s earlier request for production (the

“Third Request for Production” or “Third Request”) was made on June 22, 2012. See Doc. 257-

7. Responses to the Third Request under the Federal Rules of Civil Procedure would be due

within thirty (30) days, or July 22, 2012. See Fed. R. Civ. P. 34. However, discovery in this

case closed on July 12, 2012.1 Doc. 209.

In issuing a subpoena that would have been returnable on the last day of discovery,

Defendant Schedler seeks to circumvent the response time for Rule 34 requests for documents, 1 On the final day of discovery, Defendant Schedler improperly filed a motion to extend the discovery deadline. f. Doc. 262. Defendant Schedler has not yet properly re-filed its motion to re-open discovery.


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and to account for his late-noticed Third Request. Courts, including this one, have rejected the

use of short notice subpoenas between parties to get around untimely discovery requests. See,

Front-Line Promotions & Marketing, Inc. v. Mayweather Promotions, 2009 WL 928568, at *5

(E.D. La. Apr. 2, 2009); Pearson v. Trinity Yachts, Inc., 2011 WL 1884730, at *1, Wilkinson, J.

(E.D. La. May 18, 2011); see also Pls.’ Br. at 5-6.

Moreover, Defendant Schedler’s position that he is “willing to accept” the subpoenaed

documents “within seven (7) days of July 12, 2012” is also unavailing. See Def.’s Opp. at 2-3. A

party cannot unilaterally truncate the time period another party is entitled to under Rule 34. As

this Court determined in Pearson, “[w]hen compared to the procedure set forth in Rule 34, which

allows a party 30 days after service to respond to a request for production of documents, the

notice period [of twenty (20) days that the issuing party] provided was wholly unreasonable.”

Pearson at *1. Even accepting Defendant Schedler’s faulty premise that Plaintiffs were on notice

of the subpoena as early as June 22—which is not in fact the date the subpoena was issued, but

instead is the date of the identical Request for Production—a July 15 return date would only have

provided Plaintiffs twenty-three (23) days to respond. This is a week shorter than the time that

Plaintiffs’ are entitled to for response to document requests under Rule 34.

In sum, the essence of Defendant Schedler’s Opposition is that two untimely requests for

documents amount to one proper request for production. Plaintiffs respectfully request that this

Court must reject this flawed argument, and quash Defendant Schedler’s subpoena.

CONCLUSION

For the reasons stated herein, Plaintiffs’ Motion to Quash Subpoena should be granted.

DATED: July 13, 2012

Respectfully submitted,

/s/ Michelle Rupp


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PROJECT VOTE Niyati Shah* Michelle Rupp* Sarah Brannon*

1350 Eye St, NW, Suite 1250 Washington, DC 20005

Telephone: (202) 546-4173, Ext. 302 Facsimile: (202) 629-3754 E-mail: [email protected] E-mail: [email protected]

*Motion For Admission Pro Hac Vice Granted NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. Debo P. Adegbile Ryan P. Haygood* Dale E. Ho* Natasha M. Korgaonkar* Leah Aden 99 Hudson Street, Suite 1600 New York, NY 10013 Telephone: (212) 965-2200 Facsimile: (212) 226-7592 E-mail: [email protected] E-mail: [email protected] *Motion For Admission Pro Hac Vice Granted

Ronald L. Wilson 701 Poydras Street – Suite 4100 New Orleans, LA 70139 Telephone: (504) 525-4361 Facsimile: (504) 525-4380 E-mail: [email protected]

Counsel for Plaintiffs


Privileged & Confidential DRAFT Attorney Work Product

CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2012, I electronically filed the foregoing with the Clerk

of court by using the CM/ECF system which will send a notice of electronic filing to counsel of

record who are registered participants of the Courts CM/ECF system. I further certify that I

mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of

record who are not CM/ECF participants as indicated in the notice of electronic filing.

/s/ Michelle Rupp PROJECT VOTE

Michelle Rupp* 1350 Eye St, NW, Suite 1250 Washington, DC 20005

Telephone: (202) 546-4173, Ext. 305 Facsimile: (202) 629-3754 E-mail: [email protected]

*Motion For Admission Pro Hac Vice Granted Counsel for Plaintiffs


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