The opinion
-IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:23-CV-56-D
MARY MOORE, et al., )
Plaintiffs, )
V. ORDER
SHERIFF JOHNNY BARNES, in his official
capacity as Sheriff of Washington County, North _ )
Carolina, et al., )
Defendants.
This matter comes before the court on non-party Jay Jewell’s motion to quash the subpoena
ad testificandum issued by Plaintiffs or alternatively for a protective order. [DE-55]. Plaintiffs
filed a response in opposition, [DE-59], and the motion is fully briefed and ripe for decision. For
the reasons that follow, the motion is allowed in part and denied in part.
I. Background
Non-party Jay Jewell, a retired member of the Washington County Sheriff's Office
(“WCSO”), moves to quash Plaintiffs’ deposition subpoena issued on October 4, 2024, or
alternatively for a protective order prohibiting the deposition. Jewell argues that he was not
properly or timely served with the subpoena and the discovery deadline has now expired. In
response, Plaintiffs argue that Defendants caused the delay in issuing the subpoena and lack
standing to assert objections that belong to Jewell.
On August 14, 2024, the court extended the discovery deadline to September 30, 2024 and
the dispositive motions deadline to October 30, 2024. [DE-53]. On September 16, 2024,
Plaintiffs’ counsel informed defense counsel that they wanted to depose Jewell and sought
confirmation that defense counsel would represent Jewell and correspond with him regarding his
availability on four dates prior to the close of discovery. [DE-56-3] at 4. Defense counsel
responded that he contacted the WCSO regarding Jewell and would respond shortly regarding the
request. Jd. at 3. Plaintiffs’ counsel sent a follow up email regarding scheduling Jewell’s
deposition a week later, on September 23, 2024, and again on September 30. /d. at 2-3. Defense
counsel responded to the September 30 email, stating they had not yet successfully contacted
Jewell but had obtained his contact information, which was provided for the purpose of issuing
subpoenas, and that they would be defending any deposition. /d. at 2. Plaintiffs’ counsel indicated
they would subpoena Jewell and asked Defendants to agree to extend the discovery period or
stipulate to the use of Jewell’s testimony, and defense counsel responded that they would not object
to the deposition being taken outside the discovery period if Plaintiffs would agree to a 45-day
extension of the dispositive motions deadline. /d. Plaintiffs would not agree to extend the motions
deadline, id. at 1, and Jewell filed the instant motion to quash or for a protective order.
Il. Discussion
Subpoenas issued to non-parties are governed by Fed. R. Civ. P. 45. See Fed. R. Civ. P.
34(c) (‘As provided in Rule 45, a nonparty may be compelled to produce a document and tangible
things or to permit an inspection.”). “In response to such a subpoena, a non-party may either file
a motion to quash or modify the subpoena pursuant to Fed. R. Civ. P. 45(d)(3)(A), move for a
protective order pursuant to Fed. R. Civ. P. 26(c), or oppose a motion to compel production of the
subpoenaed documents pursuant to Fed. R. Civ. P. 45(d)(2)(B).” Schaaf v. Smithkline Beecham
Corp., 233 F.R.D. 451, 453 (E.D.N.C. 2005) (citing United States v. Star Scientific, Inc., 205 F.
Supp. 2d 482, 484 (D. Md. 2002)); Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D,
2017 WL 5919625, at *4 (E.D.N.C. Nov. 30, 2017).
The court must first address the issue of standing to challenge the subpoenas. “Generally,
a party lacks standing to challenge a subpoena issued to a nonparty.” Jn re Camp Lejeune Water
Litig., No. 7:23-CV-897, 2024 WL 2950355, at *2 (E.D.N.C. June 11, 2024) (quoting Artis v.
Murphy-Brown LLC, No. 7:14-CV-237-BR, 2018 WL 3352639, at *2 (E.D.N.C. July 9, 2018)).
However, “where the challenging party has moved for a protective order, the court is permitted to
consider its position on the merits.” Jd. (citing EEOC v. Bojangles Restaurants, Inc., No. 5:16-
CV-654, 2017 WL 2889493, at *4 (E.D.N.C. July 6, 2017)); Fed. R. Civ. P. 26(c) (“A party or any
person from whom discovery is sought may move for a protective order in the court where the
action is pending—or as an alternative on matters relating to a deposition, in the court for the
district where the deposition will be taken.”). Plaintiffs argue that Defendants lack standing to
move to quash the subpoena issued to a non-party, but Defendants did not move to quash the
subpoena, Jewell did. See [DE-55] (Non-Party Jay Jewell’s Motion to Quash Plaintiff's Subpoena
Ad Testificandum and Motion for Protective Order). Accordingly, Plaintiffs’ lack of standing
argument fails.
Turning to the merits, Jewell argues that the subpoena should be quashed because it was
not properly or timely served. [DE-56] at 4-5. Plaintiffs respond that they served Jewell on
October 11, 2024, five days before the noticed deposition date but after the close of discovery, and
the delay was caused by Defendants not timely responding to Plaintiffs’ attempts to coordinate the
deposition. [DE-59] at 2-4. Plaintiffs ask the court to allow them to reissue the subpoena to Jewell
and take his deposition within sixty days but oppose extending the dispositive motions deadline
due to the upcoming holidays. The court will quash the Jewell subpoena for deposition on October
16, 2024, because it was not timely served on Jewell prior to the close of discovery. See Pannell
v. Scruggs, No. 1:18 CV 271, 2020 WL 8993133, at *1 (W.D.N.C. Feb. 12, 2020) (“[D]iscovery
subpoenas served following the close of court-enforced discovery are untimely.”) (citing
Karagiannopoulos v. City of Lowell, No. 3:05-CV-401-FDW-DCK, 2008 WL 948261, at *2
(W.D.N.C. Apr. 2, 2008)). However, the court finds good cause, based on Plaintiffs’ diligence, to
extend the discovery period to allow for Jewell’s deposition, and the court also finds a concurrent
extension of the dispositive motions deadline is appropriate.
Accordingly, for the reasons stated herein, the motion to quash or for protective order is
allowed in part and denied in part. The parties shall work cooperatively to schedule Jewell’s
deposition to occur by no later than November 7, 2024; and all potentially dispositive motions
shall be filed by no later than December 9, 2024.
SO ORDERED, the 17th day of October, 2024.
United States Magistrate Judge