277 F.R.D. 474
S.D. Fla.2011Background
- Subpoenas were served on the ACLU of Florida in a case challenging mandatory drug testing of state employees.
- ACLU objected to the subpoenas on relevance, overbreadth, and attorney-client/work-product and First Amendment privileges.
- Court stayed compliance pending ruling; motion now ripe for disposition.
- Court limited publicly available ACLU materials, finding them not privileged and already publicly disseminated.
- Court found non-public, broad discovery requests burdensome and largely irrelevant to the Fourth Amendment issue.
- Court held authenticity can be established via a sworn custodian declaration under Fed. R. Evid. 902(11); deposition of the ACLU for authenticity is unnecessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of subpoenas under Rule 26(b)(1) and Rule 45 | ACLU argues broad, irrelevant, and burdensome scope | Defendant argues broad discovery is allowed if relevant | Partially denied; non-public materials narrowed; public materials allowed but largely not required |
| Authenticity of documents and deposition need | N/A | Deposition unnecessary given 902(11) declaration | Deposition not required; authenticity via custodian declaration sufficient |
| Knowledge/position of ACLU on drug testing as discovery target | ACLU's knowledge/position is not relevant to case | Such discovery could be probative and impeachment-like | Denied; not a proper subject of discovery; credibility not appropriate rationale |
| Burden and privilege concerns for opposing counsel | Discovery should not burden counsel or affect privilege | Requests may be justified if relevant | Granted as to protection of privilege; extensive deposition of counsel not allowed unless substantial need shown |
| Cost allocation for producing documents | N/A | Costs should be borne by Defendant as non-party subpoena | Costs borne by Defendant; no attorney’s fees awarded to ACLU |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (Sup. Ct. 1947) (attorney-client privilege and work-product concerns in discovery)
- West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301 (S.D. Fla. 1990) (discusses privilege and discovery scope considerations)
- Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995) ( standards for deposition of opposing counsel when warranted)