The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER DENYING COMPEL PRODUCTION OF PLAINTIFF'S MOTION TO DOCUMENTS AND ) ELECTRONICALLY-STORED INFORMATION FROM FEDERAL DEFENDANTS, AND FROM ICE RECORDS CUSTODIAN
Plaintiff's Motion to Compel Production of Documents and Electronically-Stored Information From Federal Defendants, and From ICE Records Custodian [Do. No. 124] was set for hearing on May 15, 2009, Having taken the matter under submission on May 13, 2009, and having reviewed all papers submitted pertaining to this motion the Court, NOW FINDS AND RULES AS FOLLOWS:
I. Plaintiff's Motion to Compel in Regards to ICE
The Court DENIES Plaintiff's Motion to Compel in Regards to the Custodian of Records and the Field Office Director of the San Francisco District Office of Immigration and Customs Enforcement ("ICE Records Custodian" or "ICE").
5 U.S.C. §301 "authorizes the head of each executive department to prescribe regulations governing the procedure by which its records will be made available to the public."*fn1 United States v. Henson, 123 F.3d 1226, 1237 (9th Cir. 1997). While this "does not allow an agency to refuse to disclose [discoverable] information, it does allow an agency to choose who may disclose the information and the procedure to be followed for such disclosure." United States v. Henson, 123 F.3d 1226, 1237 (9th Cir. 1997). For example, § 301 allows a federal agency to create internal regulations for responding to a subpoena request, as well as procedures for litigants serving such subpoena requests. See 6 C.F.R. §§ 5.41-5.49 (containing the Department of Homeland Security's regulations regarding disclosure of records in litigation promulgated pursuant to § 301).
In United States v. Henson, the Ninth Circuit found that a district court did not abuse its discretion in quashing a subpoena that did not follow the federal agency's Touhy procedures. See also Lerner v. District of Columbia, 2005 U.S. Dist. LEXIS 10154, 10-11 (D.D.C. Jan. 7, 2005) (court denied motion to compel because plaintiff did not comply with federal agency's Touhy regulations for requesting documents. Specifically, plaintiff did not comply with 6 C.F.R. § 5.45, stating that Plaintiff "set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought.").
Plaintiff is correct that a federal agency cannot promulgate procedures that allow it to prevent litigants from obtaining discoverable information. However, courts are clear that internal agency procedures that regulate how an agency will respond to a subpoena request are valid. This includes regulations on how a litigant can request information.
In this case, ICE is not hiding under its Touhy Regulations in order to assert that it does not need to comply with a valid subpoena request. Instead, ICE refused to respond to the subpoena until Plaintiff complied with the proper procedures for requesting his A-File.*fn2 This included, pursuant to 6 C.F.R. §§ 5.41- 5.49, the requirement that a litigant "set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought." 6 C.F.R. § 5.45(a). Instead, Plaintiff only requested for the ICE Custodian of Records to produce:
the original complete 'file' of plaintiff Juan Carlos Valadez Lopez (A98-255-081) which defendant Yakov Grinberg 'oversaw' as described in his Statement of Undisputed Facts, Document 20-2 at 1:20-21, filed in the above captioned matter...
Plaintiff did not amend his request, despite the fact that ICE's Counsel instructed Plaintiff that ICE would comply if Plaintiff followed the agency's regulations. The Supreme Court in Touhy has upheld the use of these regulations, and the Ninth Circuit in Henson has stated that an agency may choose the procedures to be followed for [information] disclosure. Therefore, the Court will not compel ICE to respond to the subpoena request because the request did not follow ICE's Touhy Regulations for document requests.*fn3*fn4
Lastly, Plaintiff argues that the ICE waived all its objections by failing to comply with the deadlines set forth in Rule 45(c)(2)(B). On March 17, 2009, Plaintiff served his subpoena to the ICE Records Custodian. The subpoena sought production of Plaintiff's A-File by March 26, 2009. ICE filed written objections on March 31, 2009.
Rule 45(c)(2)(B) states that if a person objects to the subpoena's document request, "[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served."
Plaintiff argues that the objections were waived because they were provided five days after the subpoena's stated date for production. Plaintiff emphasizes that Rule 45 states that "[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. In other words, the word "earlier" modifies both "time specified for compliance" and "14 days." Therefore, he argues, the time specified for compliance was before fourteen days, and therefore was the earlier of the two times.
"Under Rule 45, the nonparty served with the subpoena duces tecum may make objections to the subpoena duces tecum within 14 days after service or before the time for compliance, if less than 14 days." Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005). In other words, the word "earlier" does not modify 14 days. This interpretation comports with the intention of the rule. The prior version of paragraph (c)(2) gave non-parties ten days to respond to a subpoena. When the rule was amended, the committee stated that "[t]he 10-day period for response to a subpoena is extended to 14 days to avoid the complex calculations associated with short time periods under Rule 6 and to allow a bit more time for such objections to be made." See Fed. R. Civ. Pro. 45 Advisory ...