The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge
This case has been referred to me for resolution of discovery disputes. Five discovery motions are currently pending: 1) Motion for Sanctions for Failure to Respond to Discovery Requests [#34] ("Mot. to Sanction"), 2) Motion for Protective Order Precluding its 30(b)(6) Designee's Deposition on March 23, 2009 [#38] ("Mot. to Protect"), 3) Motion for Extension of Time to Complete Discovery [#40] ("Mot. to Extend"), 4) Motion to Quash Subpoena [#42] ("Mot. to Quash"), and 5) Motion to Strike Surreply [#48] ("Mot. to Strike"). I will address each of these in turn.
Defendants correctly argue that there is no automatic right to file a surreply to be found in the Federal Rules of Civil Procedure or the Local Rules of this Court. Plaintiffs did not seek leave of court to file their surreply to the Motion for a Protective Order. Accordingly, that surreply [#46] shall be stricken, and the Motion to Strike shall be granted.
II. Motion for Protective Order
The time has passed for taking the deposition that defendants sought to preclude by their motion for a protective order. Thus, the motion is moot. I will address defendants' contention that their counsel should be excused for failing to appear at the deposition in my analysis of the pending Motion for Sanctions. The Motion for a Protective Order will be denied as moot.
This case arises out of an allegation that plaintiff Stephen Amobi was discriminated against by the D.C. Department of Corrections. Plaintiff was employed as a corrections officer in the D.C. Jail. He alleges that he was releasing an inmate when the inmate struck him and he responded by restraining the inmate as he was required to do. Despite his allegedly proper behavior, plaintiff was prosecuted for assault and ultimately acquitted. In addition to his prosecution, plaintiff was terminated from his job, and deficiencies in the review process form part of the basis of his complaint in this case.
Plaintiffs served a subpoena on the U.S. Attorney's Office ("USAO") seeking the USAO's files related to the criminal prosecution. Defendants are seeking to quash that subpoena on the grounds that the documents it seeks are privileged. Plaintiffs argue that defendants do not have standing to object to the third-party subpoena and that the USAO is a sophisticated entity that can preserve its own rights. I have recently addressed this very issue.
It is certainly true that a party may challenge a subpoena when enforcement of it may disclose information that that party can claim is privileged at common law or by statute or rule. That would mean that the Defendants could challenge enforcement of the subpoena if they showed it threatened the disclosure of information that was protected by the attorney-client or work product privileges. But, these defendants could not challenge the subpoena on the grounds that it threatened the disclosure of information that was privileged because of the attorney-client relationship between the insurance carrier and its counsel or because it represented the work product of the insurance carrier's counsel. They have no standing to make such an objection.
Novak v. Capital Mgmt. & Dev. Corp., 241 F.R.D. 389, 394 (D.D.C. 2007). While admittedly, a party may have standing to move to quash a subpoena directed to a third party where that subpoena infringes on the moving party's rights, the defendants here have no right to claim work product or attorney-client privilege on behalf of the USAO. Cf. Khouj v. Darui, 248 F.R.D. 729, 732 n.6 (D.D.C. 2008) (noting that parties have standing to move to quash subpoenas seeking their financial records from third-party banks because they have a legitimate interest in protecting their private financial information); Fed. R. Crim. P. 17(c)(2) (allowing government in criminal cases to move to quash subpoenas if compliance would be unreasonable or oppressive without limitation -- no comparable provision applies in civil matters).
Because the defendants here have no right to claim privilege regarding the USAO's files, I will deny the Motion to Quash.
Plaintiffs submitted written discovery requests to defendants on January 22, 2009. Defendants filed dispositive motions on February 4 and 5, 2009. Also on February 5, defendants filed a motion to stay discovery pending resolution of the dispositive motions. Judge Kennedy granted the stay temporarily while the motion to stay could be fully briefed and decided. The stay began on February 9 and was ultimately lifted on February 27. Plaintiffs filed this motion on March 13, 2009, faulting defendants for a number of ...