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Wang v. Hsu

United States Court of Appeals, Tenth Circuit
Nov 15, 1990
919 F.2d 130 (10th Cir. 1990)

Summary

In Wang v. Hsu, 919 F.2d 130 (10th Cir. 1990), the court specifically said that objections to a Rule 45 subpoena must be "filed."

Summary of this case from United States v. Cmty. Health Sys., Inc.

Opinion

No. 90-1108.

November 15, 1990.

D. Michael Clayton, pro se.

Appeal from the United States District Court for the District of Colorado.

Before ANDERSON, BALDOCK and EBEL, Circuit Judges.


D. Michael Clayton, a non-party deponent, appeals from the district court's denial of his motion for a protective order. We affirm.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Defendants in the underlying civil suit served Clayton with a deposition subpoena pursuant to Rule 45, Fed.R.Civ.P. on September 28, 1989. The subpoena commanded Clayton to appear and bring specified documents on November 7, 1989. Clayton did not file an objection to inspection or copying of the documents within ten days, as required by Rule 45(d)(1). Instead, on November 7 Clayton appeared with the documents, allowed them to be inspected, but refused to allow them to be copied. Clayton's subsequent motion for a protective order was denied, first by a magistrate and then the district court judge.

The decision to grant a protective order is vested in the district court's discretion. We will reverse only if that discretion is abused. In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987). "An abuse of discretion occurs only when the trial court based its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling." Id. (quoting In re Petroleum Products Antitrust Litig., 669 F.2d 620, 623 (10th Cir. 1982)).

At each stage, Clayton has argued that the plain language of Rule 45(d)(1) requires a subpoena duces tecum to specifically authorize inspection and copying of the materials to be produced. He argues that the right to inspect and copy is permissive not mandatory.

We disagree. Clayton's argument was pre-empted twenty years ago by the 1970 amendments to Rule 45(d)(1). The Advisory Committee's note accompanying the amendment explains:

At present when a subpoena duces tecum is issued to a deponent, he is required to produce the listed materials at the deposition, but is under no clear compulsion to permit their inspection and copying. This results in confusion and uncertainty before the time the deposition is taken, with no mechanism provided whereby the court can resolve the matter. Rule 45(d)(1), as revised, makes clear that the subpoena authorizes inspection and copying of the materials produced. The deponent is afforded full protection since he can object,....

Rule 45(d)(1) Fed.R.Civ.P. Advisory Committee Notes (emphasis added).

We decline to return to "confusion and uncertainty." The subpoena commanding Clayton to produce documents simultaneously authorized their inspection and copying. Clayton was afforded full protection because he had the opportunity to object. He did not. Although Clayton orally objected at deposition, Rule 45(d)(1) requires objection to inspection or copying to be made, in writing, within ten days after service of the subpoena. Clayton argues that he did not receive a list of the documents to be produced until November 7, 1989. He did not, however, file any sort of written objection until December 26, 1989.

The district court did not abuse its discretion. We accordingly AFFIRM.


Summaries of

Wang v. Hsu

United States Court of Appeals, Tenth Circuit
Nov 15, 1990
919 F.2d 130 (10th Cir. 1990)

In Wang v. Hsu, 919 F.2d 130 (10th Cir. 1990), the court specifically said that objections to a Rule 45 subpoena must be "filed."

Summary of this case from United States v. Cmty. Health Sys., Inc.

stating that a motion for a protective order is timely if made before the date set for the discovery

Summary of this case from In re Terminix Intern. Co.

stating that a motion for a protective order is timely if made before the date set for the discovery

Summary of this case from Ex Parte Anderson

stating that a motion for a protective order is timely if made before the date set for the discovery

Summary of this case from Ex Parte Horton Homes, Inc.

stating that a motion for a protective order is timely if made before the date set for the discovery

Summary of this case from Ex Parte Reynolds Metals Co.
Case details for

Wang v. Hsu

Case Details

Full title:FRANCIS S.L. WANG, PLAINTIFF, v. PAUL HSU; C.V. CHEN; KWAN TAO Li; Lee AND…

Court:United States Court of Appeals, Tenth Circuit

Date published: Nov 15, 1990

Citations

919 F.2d 130 (10th Cir. 1990)

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