United States v. 2121 Celeste Road SW
2015 U.S. Dist. LEXIS 72867
D.N.M.2015Background
- Property at 2121 Celeste Road SW was alleged to be used to facilitate large-scale drug trafficking by the "Los Padillas" organization; searches recovered cash, phones, and other indicia of distribution.
- Claimant Cruz J. Fraire (owner) sought FBI investigative materials (the "Los Padillas File") relating to the gang, Jerry Padilla III, and Fraire himself.
- Fraire served a Rule 34 RFP on the United States and, separately, a Rule 45 subpoena duces tecum on FBI Special Agent Laura A. Schwartzenberger to produce the FBI file at her deposition; Schwartzenberger did not produce the file on advice of the AUSA.
- The United States objected to producing the entire file as overly broad and asserted the proper mechanism to obtain a government file was a Rule 34 request to the United States (not subpoenaing an FBI agent).
- At hearing the parties agreed the United States would: (1) personally re-review the file for material related to Fraire, (2) produce all file material dated or created before March 22, 2011, and (3) produce any evidence it intends to use at trial to show Fraire knew of drug operations.
- The Court concluded the subpoena on Schwartzenberger was improper because she lacked possession/custody/control over the file and denied contempt/sanctions but ordered the United States to comply with the three production obligations above.
Issues
| Issue | Plaintiff's Argument (Fraire) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| May a party use a Rule 45 subpoena to obtain documents from another party? | Rule 45 may be used to subpoena documents from parties or nonparties; subpoena was proper. | Rule 45 is for nonparties; documents from a party must be sought under Rule 34. | Court: A party may use Rule 45 to subpoena a party (adopts majority view). |
| Could Fraire obtain the Los Padillas File by subpoenaing Agent Schwartzenberger? | File was within Schwartzenberger’s possession/custody/control; subpoena should have been complied with. | The file is controlled by the FBI/United States; Schwartzenberger lacked control, so subpoena was improper. | Court: Schwartzenberger did not have requisite possession/custody/control; subpoena enforcement failed. |
| Was Fraire required to pursue a Rule 34 motion to compel against the United States rather than the Rule 45 motion? | He served both Rule 34 and Rule 45 and thus preserved his remedies. | Fraire should have relied on his Rule 34 RFP and moved to compel the United States; subpoenaing the agent circumvented Rule 34. | Court: Fraire should have moved under Rule 34; his Rule 45 approach was improper here though his Rule 34 objection was preserved. |
| Are discovery sanctions or contempt appropriate for the U.S.? | Sanctions requested for failure to produce and failure to object/quash the subpoena. | No contempt or sanctions: subpoena was improper and request was overly broad; U.S. cooperated at hearing. | Court: No contempt or other sanctions; ordered limited production (re-review, pre-3/22/2011 material, and trial-use evidence). |
Key Cases Cited
- Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992) (standard and factors for imposing sanctions)
- First City, Texas-Houston, N.A. v. Rafidain Bank, 281 F.3d 48 (2d Cir. 2002) (subpoena usage against a party/nonparty addressed; district-court decision approving subpoenas to parties affirmed)
- Cumis Ins. Soc. v. South-Coast Bank, 610 F. Supp. 193 (N.D. Ind. 1985) (denying motion to quash and discussing appropriate mechanisms to obtain government/FBI files)
- In re Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009) (explaining post-2000 Rule 26 two-tiered discovery regime and court-managed limits)
- Hickman v. Taylor, 329 U.S. 495 (1947) (policy favoring broad discovery to achieve disclosure of relevant information)