Herrera v. Domino's Pizza LLC
- John Cronan
- 1:18-cv-02996
- U.S. District Court · Southern District of New York
- 2
In Herrera v. Domino's Pizza LLC, Judge Cronan denied defendants’ request to have the court formally approve a subpoena for a nonparty expert.
The ruling affected defendants Domino’s Pizza LLC and David J. Shields, their nonparty expert Robert Haar, M.D., and the parties’ expert-deposition process.
What happened
In Herrera v. Domino's Pizza LLC, defendants Domino’s Pizza LLC and David J. Shields asked the court to formally approve a subpoena requiring their remaining expert, Robert Haar, M.D., to appear for a deposition. The parties jointly made the request, and the subpoena was returnable on February 25, 2021.
The court explained that Federal Rule of Civil Procedure 45 allows a party’s lawyer to issue a subpoena without a separate court order. A subpoena signed by defense counsel was therefore sufficient to require compliance.
Judge John P. Cronan denied the request to formally approve the subpoena. He stated that defendants could ask the court to compel compliance under Rule 37(a) and seek an order requiring Dr. Haar to explain any failure to comply.
The detailed version
- Herrera v. Domino's Pizza LLC · No. 1:18-cv-02996
- John Cronan
- Feb. 11, 2021
Background
Defendants Domino’s Pizza LLC and David J. Shields, through their counsel, asked the court to formally approve a subpoena requiring their last remaining expert, Robert Haar, M.D., to appear for a deposition. The request was made with the knowledge and consent of plaintiff’s counsel. The subpoena had previously been served on December 4, 2020, and the parties asked that it be made returnable on February 25, 2021. The expert-discovery deadline was February 22, 2021.
Court’s reasoning
The court relied on Federal Rule of Civil Procedure 45(a)(3), which permits an attorney to issue a subpoena. It explained that a subpoena signed by defendants’ counsel is a court mandate sufficient to require compliance. Because Rule 45 does not require a separate court order to issue the subpoena, the court concluded that defendants’ request to have the subpoena formally approved was unnecessary.
Ruling
The court denied defendants’ request to formally approve, or “So Order,” the subpoena. Judge John P. Cronan stated that if Dr. Haar failed to comply, defendants could move to compel discovery under Federal Rule of Civil Procedure 37(a) and request an order requiring Dr. Haar to explain why he should not be held in contempt for failing to comply.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.