The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MARCI D. WALKINGSTICK DIXON, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-391-GLJ
)
STATE OF OKLAHOMA, ex rel. the )
Regional University System of the )
Oklahoma Board of Regents d/b/a )
Northeastern State University, )
)
Defendant. )
)
ORDER
This matter comes before the Court on motion by Plaintiff Marci D. Walkingstick
Dixon to quash certain pending subpoenas duces tecum Defendant issued to non-parties.
Specifically, Defendant issued subpoenas duces tecum to two of Plaintiff’s subsequent
employers seeking her complete personnel files. For the reasons set forth below, Plaintiff’s
Motion to Quash Subpoenas (“Motion to Quash”) [Docket No. 162] is hereby GRANTED.
BACKGROUND
Plaintiff filed her original Complaint in this case on November 15, 2019, then filed
an Amended Complaint on February 4, 2020. See Docket Nos. 2, 13. Plaintiff alleged
claims of gender discrimination, race discrimination, retaliation, and hostile work
environment as to Northeastern State University (“NSU”) in violation of Title VII, claims
against NSU for discrimination and retaliation in violation of the Rehabilitation Act, and a
claim against Dr. Reif for retaliation for use of FMLA leave.
On March 29, 2023, the Court granted Dr. Reif’s Motion for Summary Judgement,
dismissing him entirely, and granted in part Defendant NSU’s Motion for Summary
Judgment, dismissing all claims against NSU except for Plaintiff’s hostile work
environment claim pursuant to Title VII. See Docket No. 126.
Although the Seventh Amended Scheduling Order provided a discovery cutoff date
of February 6, 2023, NSU served document subpoenas on Pima Community College in
Tucson, Arizona and Yavapai College1 on or around December 29, 2023. See Docket No.
161. Although the Notice included two copies of the document subpoena served on
Yavapai College, both subpoenas apparently seek the production of the “Complete
Personnel File of Marcia Walkingstick Dixon, including but not limited to accommodation
requests, all performance evaluations, leave requests, compensation, and complaints made
by or about Plaintiff Dixon.” See Docket No. 161. Such documents were to be produced
to the Oklahoma Attorney General’s Office in Oklahoma City, Oklahoma on January 19,
2024. Id.
On January 4, 2024, Plaintiff’s counsel contacted NSU’s counsel indicating
Plaintiff’s objection to the subpoenas and requesting a meet and confer. See Docket No.
162. NSU’s counsel neither responded to Plaintiff’s request, id., nor apparently notified
the subpoenaed entities of Plaintiff’s objection. Pima Community College and Yavapai
1 Although not identified on the subpoena duces tecum or the notice, the Court presumes the
subpoena directed to Yavapai College is Yavapai College in Yavapai County, Arizona.
College produced documents pursuant to the subpoenas on January 10 and 11, 2024,
respectively. See Docket No. 164. On January 10, 2024, Plaintiff filed her Motion to
Quash, seeking to quash the subpoenas as irrelevant and exceeding the appropriate scope
of discovery in this case. See Docket No. 162.
ANALYSIS
A subpoena duces tecum issued to a third party is “discovery” within the meaning
of the Federal Rules of Civil Procedure. Rice v. U.S., 164 F.R.D. 556, 556–57
(N.D.Okla.1995). Indeed, NSU’s Response concedes it was seeking discovery through the
two subpoenas duces tecum. See Docket No. 164, pp. 2-4. Accordingly, discovery
conducted pursuant to a Rule 45 subpoena must be concluded by the deadline specified in
the court’s Scheduling Order. Grant v. Otis Elevator Co., 199 F.R.D. 673, 675
(N.D.Okla.2001); Rice, 164 F.R.D. at 558. “Rule 45 subpoenas sought after the discovery
cut-off date are improper attempts to obtain discovery beyond the discovery period and
should be quashed on this basis.” Alfwear, Inc. v. Kulkote, LLC, 2020 WL 4196446 , at *
2 (D. Utah July 21, 2020) (citing Hickey v. Myers, 2013 WL 2418252, at *5 (N.D.N.Y.
June 3, 2013) (“When a party issues subpoenas after the discovery deadline has passed to
obtain documents the party was aware of before the discovery cutoff date, the subpoenas
and discovery requests should be denied.”)); see also 9A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2459 (3d ed.).
“Regardless of the moving party’s standing to challenge a subpoena directed to a nonparty,
courts possess the inherent power to quash an untimely subpoena.” Dedmon v. Continental
Airlines, Inc. 2015 WL 1740095, at *2 (D. Colo. April 14, 2015) (citing Galloway v.
Islands Mechanical Contractor, Inc., 2013 WL 163985, *4 (D. V.I. Jan. 14, 2013);
Peterbilt of Great Bend, LLC v. Doonan, 2006 WL 3193371, *2 (D. Kan. Nov. 1, 2006)).
Although not raised by either party, the subpoenas at issue were served over ten
months after the close of discovery in this case. The Seventh Amended Scheduling Order
set a discovery deadline of February 6, 2023, and NSU offers no explanation or justification
for its untimely issuance of the document subpoenas. Moreover, NSU concedes that it has
long been aware of the belatedly requested documents and that the request “is not new.”
See Docket No. 164, p. 3. Thus, notwithstanding the defective nature of the Motion to
Quash,2 the Court has the inherent authority to quash such untimely subpoenas. Although
the documents may have already been produced pursuant to the subpoenas, the Court
nonetheless exercises its inherent authority and quashes these untimely issued subpoenas.
It is also deeply troubling to the Court that NSU’s counsel in particular seems to
have engaged in gamesmanship in obtaining the requested documents. NSU’s counsel
2 Since 2013, a subpoena must be issued from the court where the action is pending, but a subpoena
may only be quashed by a court for the district where compliance is required. See Fed. R. Civ. P.
45(a)(2), (d)(3). Defendant properly issued the subpoenas from the Eastern District of Oklahoma,
see Docket No. 161, as the Court where the action is pending. However, both subpoenaed non-
parties are located outside of the Eastern District of Oklahoma and the subpoenas facially
command compliance in Oklahoma City, Oklahoma. Id. Therefore, this Court is not the proper
court in which to seek to quash the subpoenas. See, e,g,, Deselms as Trustee of Anita C. Deselms
Living Trust v. Occidental Petroleum Corp., 2021 WL 2948747, at *2 (D. Wyo. June 16, 2021)
(“[W]here a subpoena-related matter is filed with the issuing court and not the court where
compliance is required, the issuing court lacks jurisdiction to decide the matter.”); In re Syngenta
Ag Mir 162 Corn Litig., 2017 WL 386835, at *1 (D. Kan. Jan. 27, 2017) (“Here, the subpoena
served on Mr. Carrato required compliance in San Francisco, California. Because compliance is
not required in the District of Kansas, this court cannot quash the subpoena or otherwise provide
the relief requested by Monsanto. [] Because this court is without power to quash the subpoena or
transfer the motion to itself, the motion is denied without prejudice to refiling in the Northern
District of California.”).
knew or should have known by January 4, 2024, that the subpoenas were disputed yet
ignored the requested meet and confer and apparently did nothing to advise the subpoenaed
parties of the dispute. Discovery is controlled by the Court and the parties are not free to
engage in discovery at their leisure, on their own timetable or under their own rules. The
Court expects better of both parties’ counsel than what has been displayed in this matter.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED THAT Plaintiff’s Motion to Quash
Subpoenas [Docket No. 162] is hereby GRANTED. It is FURTHER ORDERED that any
documents obtained pursuant to the quashed subpoenas are to be segregated from other
discovery and no such document shall not be admissible as an exhibit in this case without
express leave of Court. To obtain leave from the Court, Defendant must, at a minimum,
request leave which sets forth: (1) justification for why such document was not sought and
obtained during the permitted discovery period; and (2) how such document is relevant to
any claim or defense in this case.
DATED this 24th day of January 2024.
______________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE