United States District Court, E.D. California
JERRY F. STANLEY, Petitioner,
WARDEN, San Quentin State Prison, Respondent.
CAROLYN K. DELANEY, Magistrate Judge.
On February 4, 2015, the undersigned held a hearing on petitioner's motion to compel. Joe Schlesinger and Tivon Schardl appeared for petitioner. Attorney Jack Leavitt also appeared. In addition to argument on the motion to compel, the court heard argument on the amount of sanctions to be levied against Mr. Leavitt pursuant to the December 19, 2014 order.
Motion to Compel
In December 2014, the court granted petitioner's motion to issue a subpoena duces tecum to Mr. Leavitt for his files regarding his representation of petitioner Stanley. (ECF No. 965.) On December 10, 2014, petitioner's counsel issued the subpoena. (ECF No. 975-1.) The subpoena required Mr. Leavitt to produce the following documents by December 24:
ANY AND ALL DOCUMENTS RELATED OR REFERRING TO GERALD FRANK STANLEY, including but not limited to any and all case files, correspondence, drafts, investigative reports, notes, electronic or recorded messages, recordings, computer files, related to any and all proceedings, including but not limited to USDC No. 2:95-cv-1500, 9th Cir.Nos. 04-16255, 08-99026, 13-15987, Butte Co. No. 079825, Lake Co. No. CR-1323.
(Id.) In addition, the subpoena included a copy of the provisions of Federal Rule of Civil Procedure 45(c), (d) and (e) regarding Mr. Leavitt's duty to respond to the subpoena and "the potential consequences of not doing so." (Id.) In a letter dated December 17, 2014 to petitioner's counsel Joe Schlesinger, Mr. Leavitt refused to turn over any documents and objected to the subpoena on four grounds: (1) it did not offer to compensate his expenses to drive to Sacramento with the files; (2) it created an undue burden to provide such a "wide array of claimed documents;" (3) petitioner Stanley has stated that the Federal Defender does not represent him and may not seek to subpoena documents from any of his other attorneys; and (4) the attorney/client privilege prevents Mr. Leavitt from turning over the documents against petitioner Stanley's wishes. The present motion to compel followed. (ECF No. 975.)
Pursuant to Rule 45(d)(2)(B), a person subject to a subpoena duces tecum may object to the subpoena within 14 days after service. If the objections assert any privileges, they must "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." Fed.R.Civ.P. 45(e)(2)(A)(ii). Once an objection is made, the party serving the subpoena may move to compel compliance. Fed.R.Civ.P. 45(d)(2)(B)(i). Each of Mr. Leavitt's objections is addressed, and rejected, below.
1. Failure to Provide Witness Fees and Mileage
The subpoena did not command Mr. Leavitt's attendance and the court finds it is not necessary for Mr. Leavitt to deliver the documents himself. Accordingly, no witness fees or travel expenses are required.
2. Undue Burden
Mr. Leavitt objected on the basis that petitioner is "demanding more than sixteen years of paperwork." (ECF No. 975-1.) In his opposition to the motion to compel, Mr. Leavitt referred to the documents sought as numerous, but appeared to be primarily concerned with the costs of production. (ECF No. 987 at 7-8.) As described above, Mr. Leavitt need not personally deliver the documents. Further, the court will order petitioner's counsel to pay for the costs of delivery and the costs of return of the documents to Mr. Leavitt.
3. Petitioner has Stated that his Appointed Attorneys may not have the Documents Sought
As has been noted throughout these proceedings, petitioner Stanley has been consistently inconsistent. Recent events once again demonstrate his fickleness. In a January 29, 2015 order the court addressed Mr. Stanley's August 2014 statements to his appointed attorneys that his "time" with Mr. Leavitt "is up;" "Eleven years of this having fun is over with." (ECF No. 991-2 at 2.) During the February 4 hearing, Mr. Leavitt provided the court with a letter apparently authored and signed by Mr. Stanley indicating, among other things, that he did not wish his appointed attorneys to continue to represent him and does not want Mr. Leavitt to provide the subpoenaed files to his appointed ...