*1 On March 17, 2023, defendant Riverside County Sheriff's Department Deputy Saidleman (“Defendant”) filed an ex parte motion seeking to quash the subpoena to produce documents served on Defendant by plaintiff Angel Felipe Aleman (“Plaintiff”) and directed to the Riverside County Sheriff's Department (“Motion”). ECF Docket No. (“Dkt.”) 82. For the reasons set forth below, Defendant's Motion is GRANTED.

On May 1, 2022, Plaintiff, who is currently an inmate at Richard J. Donovan Correctional Facility, constructively filed[1] the operative SAC. Dkt. 17. In his sole remaining claim, Plaintiff alleges Defendant violated Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by unleashing a K-9 dog on Plaintiff after Plaintiff was apprehended following his escape from custody on July 18, 2020. Id.

On March 3, 2023, Defendant received by mail Plaintiff's “Notice of Subpoena”; “Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action” directed to “the Riverside County Sheriff's Department (Chad Bianco)”; and Requests for Production of Documents “pursuant to Rule 34 of the Federal Rules of Civil Procedure.” Dkt. 82-1 at 1-2, Declaration of Andrea K. Kornblau (“Kornblau Decl.”), ¶ 2, Ex. A. The deadline provided for responding to the subpoena is March 27, 2023. Id.

On March 17, 2023, Defendant filed the instant Motion. Dkt. 82. Defendant seeks an order quashing the subpoena directed to the Riverside County Sheriff's Department on the grounds (1) the subpoena was not issued by the Clerk of Court or an attorney authorized to practice in this Court, (2) Defendant has not received a valid notice of subpoena, and (3) Federal Rule of Civil Procedure 45 provides the exclusive mechanism for requesting production from a nonparty. See id.

The matter thus stands submitted.

As an initial matter, the Court finds ex parte relief is appropriate, since Defendant did not receive Plaintiff's “Notice of Subpoena” until March 3, 2023, and the deadline for responding to the subpoena directed to the Riverside County Sheriff's Department is March 27, 2023. See Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995) (stating, to justify use of ex parte procedures, a party must show: (1) “the moving party's case will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures,” and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or [ ] the crisis occurred as a result of excusable neglect”).

The Court further finds the subpoena directed to the Riverside County Sheriff's Department must be quashed for failure to comply with the requirements of Federal Rule of Civil Procedure 45 (“Rule 45”). A party seeking discovery from a nonparty may obtain a subpoena pursuant to Rule 45. Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014). Rule 45 provides that a subpoena must be issued and signed by the clerk of court or an attorney authorized to practice in the issuing court. FED. R. CIV. P. 45(a)(3). If the subpoena commands the production of documents, electronically stored information, or tangible things, a notice and a copy of the subpoena must be served on each party to the action before the subpoena is served on the party to which it is directed. FED. R. CIV. P. 45(a)(4).

*2 Here, the subpoena directed to the Riverside County Sheriff's Department was not issued and signed by the Clerk of Court or an attorney authorized to practice in this Court, as required by Rule 45. Accordingly, the Court GRANTS Defendant's Motion and QUASHES the subpoena directed to the Riverside County Sheriff's Department.

In order to obtain a Rule 45 subpoena issued and signed by the Clerk of Court, Plaintiff must file a copy of the subpoena along with a motion requesting issuance of the subpoena. Plaintiff is advised that a subpoena directed to a nonparty must be (1) limited in scope; (2) supported by clear identification of the documents sought; and (3) supported by a showing that the records are obtainable only through the identified third party.[2] See Davis v. Ramen, No. 1:06-CV-1216-AWI-SKO-PC, 2010 WL 1948560, at *1 (E.D. Cal. May 11, 2010).

For the reasons set forth above, Defendant's Motion is GRANTED.

IT IS SO ORDERED.

v.

Civil Action No.

To: _________ (Name of person to whom this subpoena is directed)

​ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material:

​ Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Place: Date and Time:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so.

*3 Date: _________ CLERK OF COURT

OR

The name, address, e-mail address, and telephone number of the attorney representing (name of party) _________ who issues or requests this subpoena, are:

If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

I received this subpoena for (name of individual and title, if any) _________ on (date) _________.

​ I served the subpoena by delivering a copy to the named person as follows: _________ on (date) _________ ; or

​ I returned the subpoena unexecuted because: _________ Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day's attendance, and the mileage allowed by law, in the amount of $ _________

My fees are $ _________ for travel and $ _________ for services, for a total of $ 0.00.

I declare under penalty of perjury that this information is true.

Date: _________

Additional information regarding attempted service, etc.:

(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person

(i) is a party or a party's officer; or

(ii) is commanded to attend a trial and would not incur substantial expense.

(2) For Other Discovery. A subpoena may command:

(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

*4 (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information; or

(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

*5 (2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(g) Contempt.

The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).