UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 16, 2013
FLOREZ, ET AL.
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DENYING PLAINTIFF'S NOTICE OF TARDY RECEIPT OF SUBPOENA DUE TO DEFENDANT'S MAILING PROCESS (CONSTRUED BY THE COURT AS A MOTION TO QUASH THE SUBPOENA) AND PETITION FOR WRIT OF HABEUS CORPUS AD-TESTIFICANDUM (Doc. 145)
Before the Court is Plaintiff's "notice of tardy receipt of subpoena due to Defendant's mailing process."*fn1 (Doc. 145). It appears in filing this notice, Plaintiff seeks to be present when the documents are produced and, therefore, seeks an order for a writ of habeas corpus ad testificandum. (Doc. 145).
Fed. R. Civ. P. 45 permits a party to command the production of documents from a third party where an undue burden or expense is not imposed. Subsection (c)(2)(A) specifically provides that a party "need not appear in person at the place of production or inspection unless commanded to appear for a deposition, hearing, or trial." Fed. R. Civ. P. 45(c)(2)(A).
Here, Plaintiff waived any objection to the production of his medical records by initiating the present matter in which he placed his medical condition at issue. Thus, Plaintiff has no basis upon which to object to the production of his medical records and shows no actual injury by the lengthy 2 processing of his mail. In any event, Plaintiff is not the producing party and has no burden in the 3 production of these documents.
Additionally, it is noted that the document attached to Plaintiff's motion is a Fed.R.Civ.P. 45 subpoena for production of documents. (Doc. 145 at 4). The subpoena indicates only that the 6 requested documents are to be produced by a certain time and date and submitted to the third-party 7 copying service.*fn2 Id. Plaintiff's presence was not required on March 28, 2013.*fn3 Thus, the motion for a 8 writ of habeus corpus ad testificandum is DENIED.
For the foregoing reasons, Plaintiff's motion is DENIED.
IT IS SO ORDERED.