Crabill v. Hill

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION ROBERT CRABILL, III Plaintiff, v. CIVIL ACTION NO. 2:22-cv-00013 LT. ANDREW HILL, et al., Defendants. MEMORANDUM OPINION AND ORDER Pending before the court is the defendants’ motion to quash [ECF No. 62] Plaintiff Robert Crabill’s subpoena of Donald Ames, the Superintendent of Mount Olive Correctional Complex [ECF No. 48]. Plaintiff responded in opposition. [ECF No. 63]. Because Defendants lack standing to quash the subpoena, their motion is DENIED. “Ordinarily, a party does not have standing to move to quash a subpoena served on a third party. Rather, only the person or entity to whom a subpoena is directed has standing to file a motion to quash.” , 258 F.R.D. 192 , 194–95 (D. Conn. 2009); , 595 F.2d 961, 967 (5th Cir. 1979) (first citing , 41 F.R.D. 346, 348 (S.D.N.Y. 1967); and then citing , 20 F.R.D. 184, 188 (W.D. Mo. 1957)). An exception may apply where the moving party “asserts a personal right or privilege with respect to the materials subpoenaed” from the nonparty. , No. CIV-17-992-G, 2018 WL 6037536 , at *2 (W.D. Okla. Nov. 16, 2018) (quoting , No. CIV-10-651- D, 2011 WL 691204 , at *2 (W.D. Okla. Feb. 16, 2011)). In the instant motion to quash, Defendants make no claim of privilege or personal right. Defendants do mention the report that Mr. Ames, their employer, is directed to bring with him to trial, [ECF No. 62, ¶ 2], and courts have found a “personal right” sufficient to confer standing where the challenged subpoena seeks the movant’s employment records, , , 2018 WL 6037536 , at *2. But Defendants do not invoke the report as grounds to quash the subpoena; because Defendants have repeatedly indicated their willingness to stipulate to the authenticity of the report, they mention it in their motion only to show the lack of apparent purpose for Mr. Ames to appear as a witness. [ECF No. 62]. Rather than claiming any personal right or privilege, Defendants focus on Plaintiff’s failure to previously disclose Mr. Ames as witness.1 (citing Fed. R. Civ. P. 26, 37). Accordingly, the court finds that Defendants lack standing to quash this subpoena. Their motion [ECF No. 62] is therefore DENIED. 1 From the record before the court, it does appear that Mr. Crabill never previously disclosed Mr. Ames as a potential witness. But the Federal Rules of Civil Procedure expressly exclude from the disclosure requirements those witnesses who are used “solely for impeachment,” Fed. R. Civ. P. 26(a)(1)(A)(i), 26(a)(3)(A)(i), and Mr. Crabill asserts that he “intends to call Mr. Ames as a rebuttal witness or for the purpose of impeachment of the defendants and/or other witnesses called by the defendants,” [ECF No. 63, ¶ 4]. If, however, Mr. Crabill attempts at trial to elicit testimony from Mr. Ames for purposes other than impeachment, he will need to show that his failure to disclose the witness “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). [2] The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: April 13, 2023 JOSEP . GOODW ee STATES om JUDGE