*1 On August 26, 2021, Defendants, through counsel Mark Jeffries, Esq., filed a Motion to Quash [ECF No. 57] the subpoenas [ECF No. 58-71] that Plaintiff served on each of the named Defendants.[1] On August 30, 2021, Plaintiff filed his Response [ECF No. 73] in opposition to the Motion to Quash, and the matter was set for argument by videoconference on September 1, 2021. ECF No. 76. On August 31, 2021, Defendants filed their Reply [ECF No. 77]. On September 1, 2021, Plaintiff failed to appear for the videoconference. As the issue has been fully briefed, the undersigned will proceed without further argument. For the reasons that follow, Defendants' Motion to Quash [ECF No. 57] is GRANTED, and the subpoenas [ECF No. 58-71] as to each named Defendant are QUASHED.

On March 15, 2021, Plaintiff filed a complaint against Defendants alleging breach of contract arising from his time as a student at American Public University System/American Military University. ECF No. 1. After service of the summons but before entry of this Court's First Order and Notice Regarding Discovery and Scheduling Conference [ECF No. 74] on August 30, 2021, Plaintiff served each Defendant with subpoenas requesting documents and electronically stored information. ECF No. 57-1. The subpoenas required the documents to be provided to Plaintiff by noon on September 5, 2021. Id.

In Defendants Motion to Quash, Defendants argue that the Court should quash the subpoenas for three reasons: “(1) a subpoena is not the proper means of obtaining discovery from a party; (2) the subpoenas cut short the time for parties to respond to discovery requests under Rule 34; and (3) the scope of the subpoenas is overbroad on its face.” ECF No. 57 at 3.

In his Response, Plaintiff contends that: (1) the parties agreed upon the terms of service and use of the subpoenas for document production requests; (2) his requested deadline of September 5, 2021 was reasonable because the information sought can be easily obtained by a university in a timely manner; and (3) his request for “any and all” documents or “all communication” related to “one student” within a period of “less than two years” was not overly broad. ECF No. 73.

In Defendants Reply, Defendants clarify that although counsel for Defendants agreed to accept service of the subpoenas on behalf of his clients, Defendants neither agreed, nor waived their right to object, to the use of subpoenas as the proper method for discovery request on parties. ECF No. 77 at 2. Furthermore, Defendants argue that Plaintiff failed to address the legal arguments made in the Motion to Quash. Id. at 1-3.

Civil discovery is governed by the Federal Rules of Civil Procedure. “Rule 34 governs the discovery of documents in the possession or control of the parties.” Richardson v. Sexual Assault/Spouse Abuse Rsch. Ctr., 270 F.R.D. 223, 225 (D. Md. 2010) (internal citations omitted). “A party may serve on any other party a request ... to produce [documents or tangible things] in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a); compare with Fed. R. Civ. P. 34(c) (authorizing parties to issue document subpoenas to nonparties under Rule 45). The undersigned finds the distinction in Rule 34 between parties and nonparties telling as to whether a party may utilize a subpoena under Rule 45 to discover documents from another party and thereby ignore the purpose of Rule 34. Again, that distinction being, when one party seeks to obtain documents from another party in discovery, Rule 34(a) requires the party to submit a request for production and to abide by the outlined procedure within subsection (b) when doing so. Then, Rule 34(c) specifically notes that in order for a party to obtain documents from nonparties, a subpoena is required under Rule 45. Thus, the undersigned agrees with Defendants' argument that Rule 45 subpoenas served on parties in the discovery stage are an improper means of obtaining documents because it would circumvent the requirements of Rule 34.

*2 Given that the text of Rule 45 does not plainly limit its application solely to nonparties, Courts are divided as to whether Rule 45 subpoenas should be served on parties, an issue of which the Fourth Circuit has yet to address. Neel v. Mid-Atl. of Fairfield, 2012 WL 98558, at *1 (D. Md. Jan. 11, 2012). That said, “traditional canons of interpretation regarding the interaction between the various Federal Rules of Civil Procedure ... require that the rules be construed in a manner that is internally consistent.” Joiner v. Choicepoint Servs., 2006 WL 2669370, at *5 (W.D.N.C. Sept. 15, 2006) (internal citations omitted). Construing Rule 45 in a manner that is internally consistent with the text and application of Rule 34, the undersigned is of the opinion that a party may not use Rule 45 subpoenas to obtain discovery documents from another party in lieu of using traditional requests for production under Rule 34.

Many district courts within the Fourth Circuit agree. “Although Rule 45 is not limited by its terms to nonparties, it should not be used to obtain pretrial production of documents or things, or inspection of premises, from a party in circumvention of discovery rules or orders. Discovery from a party, as distinct from a nonparty, is governed by Rule 34, not Rule 45.” Layman v. Junior Players Golf Acad., 314 F.R.D. 379, 385 (D.S.C. 2016); see also Draper v. United States Postal Serv., 2018 WL 2423002, at *2 (W.D. Va. May 29, 2018) (holding that a request for production under Rule 34(a)-(b) provides the proper discovery mechanism by which a party may obtain documents from another party rather than by subpoena, which is “generally not the proper vehicle for obtaining discovery documents from the opposing side”); Valcarcel v. ABM Indus./Diversico Indus., 383 F. Supp. 3d 562, 564 (M.D.N.C. 2019) (ordering that pro se plaintiff request documents from a party via a Rule 34 document request, not by way of a subpoena).

Here, rather than serving a request for production of documents under Rule 34, Plaintiff improperly issued subpoenas under Rule 45. Upon doing so, Plaintiff set the response time for less than two weeks. Notwithstanding the fact that two weeks may or may not be a “reasonable time” under Rule 45, Plaintiff deprives Defendants of the normal 30 days to respond to a request for production under Rule 34, in essence, circumventing a well-established discovery rule. See Layman, 314 F.R.D. at 385 (noting that Rule 34 gives a party 30 days to respond while Rule 45 only requires a response within a “reasonable” time period); Joiner, 2006 WL 2669370, at *6 (noting that “were the court to allow Plaintiff's subpoenas [of documents within Defendant's control] to stand ..., the procedure for discovery of documentation in civil trials encompassed by Rule 34 would be erased, and party opponents would have their time allotted for response to document production cut from 30 days to 14 days”).

Because the undersigned finds Plaintiff's use of a subpoena to be an improper vehicle for requesting documents from Defendants, the Court need not address the additional arguments raised at this juncture concerning the alleged overbroad nature of the subpoenas and the two weeks response time allotted therein. All discovery requests for documents between parties should abide by Rule 34 moving forward.

For the reasons set forth above, Defendants' Motion to Quash [ECF No. 57] is therefore GRANTED, and the Subpoenas as to each named Defendant are QUASHED. Any party may, within fourteen (14) days of this Order, file with the Clerk of this Court, specific written objections, identifying the portions of the Order to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, Chief United States District Judge. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. See 28 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845-48 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); see also Thomas v. Arn, 474 U.S. 140, 155 (1985). The filing of objections will not stay this Order.

*3 The Court directs the Clerk of the Court to provide a copy of this Order to the pro se Plaintiff and all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.

Respectfully submitted this 3rd day of September, 2021.

Chief Judge Groh referred this Motion to the undersigned on August 27, 2021. ECF No. 72.