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Samuel J. Bourne v. John R. Arruda

September 25, 2012

SAMUEL J. BOURNE
v.
JOHN R. ARRUDA, JR., ET AL.



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Before the court is Bourne's motion (doc. no. 142) to compel Robert King, who is not a party to this action, to produce information in response to a subpoena served upon him. King, appearing pro se, objects (doc. no. 146).

Background

Bourne served upon King a subpoena for production of: email addresses used by King in distributing case updates relating to the Bourne litigation . . . and copies of all of his emails relating either to this defamation case, or to defendants' alleged defamation of Bourne at the June 2010 and February 2011 selectmen's meetings.

Before the production was due, Bourne filed a motion for contempt, which this court denied. See Order (doc. no. 138).

On August 16, 2012, King produced a set of emails with redactions of information he considered irrelevant, along with a privilege log, and a statement indicating that he would not reproduce certain documents that defendants already produced in discovery.

King specifically redacted part or all of the text of three emails set forth on documents identified as RDK007-RDK009. King has filed unredacted copies of each of those emails under seal for in camera review. See Order (doc. no. 147).

Discussion

In the motion to compel, Bourne challenges King's failure to disclose the names and email addresses of persons to whom he has sent case updates, as well as King's failure to produce or claim a privilege as to emails sent to Madison Police Chief Mullen, the snowmobile club, and others. Bourne seeks to compel production of "a plethora" of documents, names, and email addresses he claims King has neither produced nor properly withheld.*fn1

A. Standard

If a nonparty has objected to a subpoena for the production of documents, production is required only as directed by the court, and an order compelling production must protect nonparties from any significant expense of compliance. See Fed.

R. Civ. P. 45(c)(2)(B). Valid bases for objecting to subpoenas are set forth in Rule 45 and Rule 26, which are considered in pari materia. See, e.g., Frazier v. Bed Bath & Beyond, Inc., 11-MC-80270 RS NC, 2011 WL 5854601, *2 (N.D. Cal. Nov. 21, 2011); U.S. Bank Nat. Ass'n v. James, 264 F.R.D. 17, 18 (D. Me. 2010).

Pursuant to Fed. R. Civ. P. 26(b), discovery may be obtained as to any non-privileged information that is reasonably calculated to lead to the discovery of admissible evidence, see Fed. R. Civ. P. 26(b)(1). The party moving to compel discovery bears the burden of showing that the information is relevant. See Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005). The court must limit discovery if it determines that the burden or expense of the proposed discovery outweighs its likely benefit, considering factors in Fed. R. Civ. P. 26(b)(2)(C)(iii); cf. Ackermann v. N.Y.C. Dep't of Info. Tech. & Telecomms., 09 CV 2436 JBW/LB, 2010 ...


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