Wolfeboro v. Wright-Pierce

Wolfeboro v. Wright-Pierce            12-CV-130-JD 4/30/14
              UNITED STATES DISTRICT COURT FOR THE
                    DISTRICT OF NEW HAMPSHIRE



Town of Wolfeboro

     v.                             Civil No. 12-cv-130-JD
                                    Opinion No. 

Wright-Pierce


                        MEMORANDUM OPINION

     Defendant, Wright-Pierce, served a trial subpoena on Harry

Stewart, the Director of the Water Division for the New Hampshire

Department of Environmental Services (“NHDES”), requiring his

appearance and testimony in this case.   The NHDES moved to quash

the subpoena.   The court ordered Wright-Pierce to respond to the

motion and to provide bullet proffers of the testimony it

intended to elicit from Stewart, as well as to identify each

document which would be the subject of questioning.     Wright-

Pierce responded to the motion to quash.     The court held a

hearing on the motion on April 25, 2014, and all parties were

heard.



                            Discussion

     In support of the motion to quash, the NHDES contends that

Stewart has no relevant knowledge of the case that could not be

obtained from other sources and that it would cause an undue

burden on the NHDES for him to testify at trial.     In response,

Wright-Pierce contends that Stewart could potentially offer

information that it could not elicit from other sources.
      Under Federal Rule of Civil Procedure 45, a court “must

quash or modify a subpoena that subjects a person to an undue

burden.”    Fed. R. Civ. P. 45(d)(3)(iv).   When a party has

subpoenaed a government employee to testify, the court must

“determine whether it would be an undue burden for the government

to produce [a] requested employee[,] and to weigh that burden

against the [parties’] need for the testimony.”     Solomon v.

Nassau County, 

 (E.D.N.Y. 2011).     In

considering a motion to quash such a subpoena, the court may

consider “not only the direct burden caused by the testimony, but

also the government’s serious and legitimate concern that its

employee resources not be commandeered into service by private

litigants to the detriment of the smooth functioning of

government operations.”    

; see also Cusamano v.

Microsoft Corp., 

 (1st Cir. 1998) (“[C]oncern

for the unwanted burden thrust upon non-parties is a factor

entitled to special weight in evaluating the balance of competing

needs.”).

     In addition, if a party seeking information from a nonparty

can easily obtain the same information elsewhere, that factor

weighs in favor of granting a motion quash the subpoena.       See

Bogosian v. Woloohojian Realty Corp., 

 (1st Cir.

2003); see also Precourt v. Fairbank Reconstruction Corp., 

 (D.S.D. 2011) (“If the party seeking the

information can easily obtain the same information without

burdening the nonparty, the court will quash the subpoena.”).

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Thus, “[d]epartment heads and similarly high-ranking officials

should not ordinarily be compelled to testify unless it has been

established that the testimony to be elicited is necessary and

relevant and unavailable from a lesser ranking officer.”

Halderman v. Pennhurst State School and Hosp., 

(D.C. Pa. 1982).   Further, “[i]t is within the court’s discretion

to quash a subpoena where the testimony or information sought is

irrelevant.”   Griffiths v. Ohio Farmers Ins. Co., 

, at *1 (N.D. Ohio June 29, 2010); see also W Holding Co.,

Inc. v. Chartis Ins. Co. of Puerto Rico, 

, at *1

(D.P.R. Nov. 12, 2013) (“In determining whether a subpoena

imposes an ‘undue burden,’ the court considers . . . relevance

. . . .”).

     The NHDES represented that the subpoena should be quashed

because Stewart has not been deposed in this case and because he

has had little involvement in the matter.   It further represented

that Stewart’s limited knowledge of the issues related to the

case can be obtained from other sources, including other NHDES

employees who will testify in the case and NHDES documents.    In

addition, the NHDES represented that the testimony sought from

Stewart involved pre-decisional, deliberative communications

between Stewart and another NHDES employee, and therefore is

protected by the deliberative process privilege.

     In its objection to the motion to quash, Wright-Pierce

stated that it expects Stewart to testify regarding conversations

he had with Wright-Pierce “concerning the permitability and

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remediability of the RIB system,” and that it “expects that Mr.

Stewart’s testimony may differ from some or all of the testimony

the Town intends to elicit from other NH DES representatives.”

Wright-Pierce further stated that “no other NH DES

representatives were privy to these conversations and none are

memorialized in any documentation.”   In addition, Wright-Pierce

argued that it “does not seek evidence of NH DES’s deliberative

process,” and contended that New Hampshire does not recognize a

deliberative process privilege in any event.

     In addition, Wright-Pierce submitted several bullet proffers

of the testimony it intends to elicit from Stewart.   The bullet

proffers included Stewart’s opinions regarding current and

potential characteristics of the RIB site and Wolfeboro’s

compliance with various NHDES permits.

     In its response to Wright-Pierce’s objection, the NHDES

submitted an affidavit from Stewart, in which Stewart avers that

he has no recollection of meeting with anyone from Wright-Pierce

without another NHDES employee present, and that Stewart does not

recall any discussion concerning the Wolfeboro RIB system with

anyone from Wright-Pierce.   The NHDES also stated in its response

that the parties possess several documents indicating the NHDES’s

position regarding the permitability and/or remediability of

Wolfeboro’s RIB system.   Although not specifically noted in the

response or Stewart’s affidavit, the NHDES represented at the

hearing on its motion that Stewart has never been to the

Wolfeboro RIB site.

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     As has been established through Stewart’s affidavit, the

parties’ filings, and representations at the hearing, Stewart has

not had any conversations with Wright-Pierce in which another

NHDES employee was not present.1       Although Stewart has edited

letters and attended internal NHDES meetings concerning the

Wolfeboro RIB site in his supervisory role, Wright-Pierce has not

identified any relevant or admissible information that Stewart

might offer if allowed to testify that cannot be obtained from

other NHDES witnesses or documents.       Therefore, to the extent

Wright-Pierce seeks any relevant and admissible testimony from

Stewart, Wright-Pierce can obtain the same information from other

NHDES employees and/or NHDES documents and, therefore, Stewart

should not be compelled to testify.2




     1
      At the hearing on the motion, counsel for Wright-Pierce
appeared to concede that Paul Heirtzler, another NHDES employee
who will be called at trial, attended the meeting with Stewart
and Wright-Pierce concerning the Wolfeboro RIB site.
     2
      At the hearing, counsel for Wright-Pierce suggested that
even though Heirtzler attended the relevant meeting with Stewart
and Wright-Pierce and authored letters discussing the
permitability and remediability of the Wolfeboro RIB site,
Stewart’s testimony could contradict Heirtzler’s to the extent
Stewart had a different recollection of the meeting or edited
Heirtzler’s letter in accordance with his supervisory role.
“While the expression ‘fishing expedition’ has been generally
denigrated as a reason for objecting to discovery, in some
situations, such as the one at hand, it remains apt . . . . A
litigant may not engage in merely speculative inquiries under the
guise of relevant discovery.” Micro Motion, Inc. v. Kane Steel
Co., Inc., 

 (1st Cir. 1990). Even if such
evidence could be relevant, Stewart had only limited involvement
in this matter and limited recollection of the meeting.

                                   5
      In view of the law applicable to this subpoena, the motion

to quash was granted substantially for the reasons set forth by

the NHDES in its memoranda.3

      SO ORDERED.




                                       ____________________________
                                       Joseph A. DiClerico, Jr.
                                       United States District Judge

April 30, 2014

cc:   Rhian M.J. Cull, Esq.
      John W. Dennehy, Esq.
      Daniel Miville Deschenes, Esq.
      Patricia B. Gary, Esq.
      Kelly Martin Malone, Esq.
      Mary E. Maloney, Esq.
      Seth Michael Pasakarnis, Esq.
      T. David Plourde, Esq.




      3
      Because Wright-Pierce did not seek any information from
Stewart implicating pre-decisional, deliberative communications
between Stewart and another NHDES employee, the court need not
decide whether New Hampshire recognizes the deliberative process
privilege or whether that privilege would apply here.

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