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This weeks case update:


The Homestead at Whitefish LLC., Motion to Quash

Case no. 14-60653

Movants filed a Motion to Quash Subpoena and an amended Motion to Prohibit New or Supplementary Evidence in conjunction with the hearing on the pending Motion to Alter or Amend or Sanctions. Federal Rule of Civil Procedure 45(d) 1 provides in part:

(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. (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.

Having considered each of the 9 categories of documents identified in the subpoena, the arguments of counsel at the hearing and the procedural context of this case, the subpoena is quashed because: (i) it fails to allow a reasonable time to comply; and, (ii) and is unduly burdensome.

The subpoena required production of 9 categories of documents in 3 business days, which strikes the Court as unreasonable and burdensome under these circumstances. This matter has been ongoing for more than 2 years, and the nexus between the items requested and the Sanctions Motion is tenuous at best.

Along with the Subpoena, Maschmedts served a Notice of Deposition. As the Court noted at the hearing, more than 12 years ago Judge Kirscher explained:

As for the depositions and discovery directed to CrossHarbor, the Ad Hoc Committee of the Yellowstone Club Members and Discovery Land Company, this Court’s policy in limiting application of discovery rules to contested matters is embodied in its Local Rules. Mont. LBR 9014-1 provides that [u]pon the request of any party, the Court, in its discretion, will determine whether the provisions of F.R.B.P. 7016, 7026, and any other rules should apply to any contested matter, given the facts and the issues alleged in such matter. . . . . This Court has steadfastly required that parties adhere to Mont. LBR 9014-1 and the Court will not waive such Rule at this time.

This explanation is applicable here, and to the extent the subpoena, or notice of deposition imposes on Patten an obligation to appear for a deposition, it is quashed, and of no force or effect. The Quash Motion filed at ECF No. 325 is granted; the subpoena dated August 6, 2020, is quashed pursuant to Fed.R.Civ.P. 45(d)(3)(i) and (iv); and the Notice of Deposition to James A. Patten is quashed for failure to comply with this Court’s Local Rules.

In re The Homestead at Whitefish, David Cotner, Kyle Ryan for Maschmedt, James A. Patten and Jeffrey Garfinkle for Great Northern Ventures and others.

2020 Mont. B.R. 334 (August 11, 2020)

 

 

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