ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ORDER

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19B

ORDER

This cause came on for consideration without oral argument on the following motions filed herein:

MOTION: PLAINTIFF'S MOTION FOR PROTECTION OF PERSON SUBJECT TO SUBPOENA; MOTION TO QUASH SUBPOENA (Doc. No. 32)

FILED: May 12,1998

THEREON it is ORDERED that the motion is GRANTED, in part, to the extent not MOOT.

Plaintiff objects to the subpoenas duces tecum served up on him on the following grounds: he has already complied with the request for production of documents; there is unreasonable time for compliance; the creation of undue hardship; and the possible required disclosure of privileged or protected matters. The first subpoena is dated May 4, 1998 seeking attendance with records at a May 13, 1998 deposition.

In Defendants' response to the motion (which Defendants entitle a "motion to enforce"(Footnote 1)), Defendants' counsel notes that: 1) she tried, without success, to contact counsel for Plaintiff to set up a deposition date; 2) on May 11, 1998 she renoticed the deposition (the second subpoena) for May 28 and 29, thus the motion is moot; 3) the documents sought are relevant and discoverable; 4) no privilege log has been provided; and, 5) "a party bringing a FACE claim against a clinic and individuals providing reproductive health services therein should not be granted a protective order and order to quash subpoena, complaining of undue burden and untimeliness, when that party is occupying his time exclusively for anti-abortion activities and related protests" (Doc. No. 37, p. 5).

The Court initially notes that it is unnecessary to subpoena a party to appear at deposition; a notice of deposition pursuant to Rule 30(b), Fed. R. Civ. Pro. is sufficient. Moreover, the subpoena is deficient in several respects in that it does not set forth the required text of Rule 45(c) and (d) (see Rule 45(a)(D)) and attempts to circumvent the 30 day time period for responding to a request for production of documents pursuant to Rule 34. See also Rule 30(b)(5).

The Court rejects defense counsel's contention that Plaintiff should be ordered to comply with the subpoena anyway because "[Plaintiff] is presently unemployed and, therefore, available to comply with the discovery requests in a shorter time than provided in the Rules." The Rule makes no such distinction between employed and unemployed litigants. Equally meritless is defense counsel's contention that Plaintiff is not entitled to argue undue burden, because Plaintiff chooses to occupy his time with anti-abortion activities. The Federal Rules of Civil Procedure apply to all litigants equally; an adversary is not entitled to ignore proper procedure because he disagrees with the beliefs or actions of his opponent. The Court thus concludes that the subpoenas are due to be QUASHED, based on procedural deficiencies. The Court does not reach any issue as to whether any privilege or undue burden has been shown.

(Footnote 1) "Motion to enforce deposition and subpoena" is misnamed. The proper vehicle for enforcing a subpoena is pursuant to a motion to compel. Rule 37, Fed. R. Civ. Pro.

Should the Defendants wish to depose the Plaintiff, they should do so pursuant to Rule 30(b). Requests to Produce should be served pursuant to Rule 34. Should the Plaintiff have objections based on privilege, he may assert them in accordance with the federal and local rules.

The Court notes that the parties, through counsel, are having difficulties complying with Local Rule 3.01(g). Counsel are admonished that failure to place or return telephone calls is not only discourteous, it is a violation of Local Rule 2.04(g), requiring attorneys and litigants to "conduct themselves with civility and in a spirit of cooperation in order to reduce unnecessary cost and delay." Further instances of non-cooperation will result in the imposition of sanctions on the offending individual.

MOTION: STIPULATION FOR SUBSTITUTION OF COUNSEL (Doc. No. 36)
FILED: May 21, 1998

THEREON it is ORDERED that the motion is DENIED without prejudice.

MOTION: SPECIAL ADMISSION TO PRACTICE (Doc. No. 38)
FILED. May 26, 1998

THEREON it is ORDERED that the motion is DENIED without prejudice.

The motion does not comply with Local Rule 3.01(g). Further, the Court directs Susan A. England to provide evidence that she is a member of the bar of the Middle District.(Footnote 2)

DONE and ORDERED in Orlando, Florida on May 28, 1998.

DAVID A. BAKER <signed>
UNITED STATES MAGISTRATE JUDGE

Copies furnished to:
Christopher F. Sapp
Lisa L. Hogreve
Roy Lucas
Susan A. England
Vincent G. Torpy

(Footnote 2) Ms. England is not listed on the Court's roster as a member in good standing of the bar of this Court. Pursuant to Local Rule 2.01 (a) and 2.03(d), counsel must be admitted to practice in the District Court in order to appear on Defendants' behalf.