Jackson v. Pagan

Background

On March 15, 2021, Thomas Jackson asked the Clerk to mail him eight subpoenas requiring witnesses to testify. Jackson later served five of those subpoenas by mail on five non-party employees of the New York Department of Corrections and Community Supervision. The opinion states that each subpoenaed employee apparently worked at Sing Sing Correctional Facility.

Each subpoena required the employee to appear in person for a deposition at Upstate Correctional Facility on April 15, 2021. The depositions were to be recorded by tape recorder, and each subpoena offered the witness $40 in attendance fees. Each subpoena also requested documents.

Defendant’s Request

The defendant asked the court for a pre-motion conference before filing a motion to quash, meaning a request to cancel, the five subpoenas. Alternatively, the defendant asked the court to quash them directly. The defendant argued that Jackson had not properly served the subpoenas because they may have been mailed to the Superintendent of Sing Sing Correctional Facility rather than to the named witnesses; that the defendant had not received notice before the subpoenas were mailed; that the deposition location was more than 100 miles from the witnesses’ workplace; and that the witnesses did not receive reasonable notice. The defendant also objected that the document requests duplicated earlier requests. Defense counsel acknowledged not having discussed these issues with Jackson before requesting the conference.

Ruling

The court denied the request for a pre-motion conference as unnecessary. It quashed all five subpoenas for failing to comply with Federal Rule of Civil Procedure 45.

The court identified two specific defects. First, there was no indication that the subpoenas had been properly served by delivering a copy to the person named in each subpoena, as required by Rule 45(b)(1). Second, the requested deposition location was not within 100 miles of where the non-party witnesses were employed, contrary to Rule 45(c)(1)(A).

The court suggested that Jackson consider serving written deposition questions under Rule 31 and directed him to review pages 8 through 10 of a previously mailed Discovery Guide. The court also certified that any appeal would not be taken in good faith and denied Jackson fee-free status for purposes of an appeal under 28 U.S.C. § 1915(a)(3).