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Wang v. Nebraska Public Power District

United States District Court, D. Nebraska

October 24, 2014

NIT WANG, Plaintiff,


THOMAS D. THALKEN, Magistrate Judge.

This matter is before the court on the plaintiff's Motion to Reverse the Quashed Subpoena (Filing No. 41). The plaintiff filed evidence attached to the motion. The plaintiff requests the court reconsider the September 23, 2014, Order (Filing No. 39) granting the defendant's Motion to Quash Subpoena (Filing No. 37). The defendant did not file a response.


This case arises from the plaintiff's employment with the defendant from May 17, 2004, until his resignation on September 14, 2012. See Filing No. 1 - Complaint. The plaintiff alleges he was subjected to racial harassment by co-workers and discrimination and retaliation when the defendant failed to promote him because he complained about the harassment. Id. The plaintiff alleges he is a black male from Sudan. Id. After an initial review, the court allowed the plaintiff to proceed on discrimination and retaliation claims, pursuant to Title VII of the Civil Rights Act, 42 U.S.C. ยง 2000e. See Filing No. 6. The defendant denies liability on the plaintiff's claims alleging the plaintiff was a Systems Control Engineer, who had been placed on an extended performance improvement plan and did not receive various promotions because he did not meet the minimum qualifications for the positions or better-qualified candidates filled the positions. See Filing No. 13 - Answer.

On February 3, 2014, the court authorized the parties to begin discovery. See Filing No. 15. The February 3, 2014, order set deadlines for discovery and scheduled the case to trial. Id. On April 3, 2014, the court held a planning conference with the parties. During the conference, the court rescheduled trial, to be held on January 20, 2015, and extended the discovery deadline until May 30, 2014. See Filing No. 25.

On September 5, 2014, the defendant file a motion to quash a subpoena issued on July 29, 2014, by the court on behalf of the pro se plaintiff. See Filing No. 37. The subpoena sought to have the defendant produce documents described as: "Emails throughout Nit Wang's employment period (May 17, 2004-September 14, 2012)." Id. at 4. The defendant opposed compliance with the subpoena because the subpoena was issued after the end of the discovery period, the request for production was overly broad, and relevant responsive documents were previously produced. Id. at 2-3. The plaintiff did not file a timely response to the motion to quash. On September 23, 2014, the court granted the defendant's motion to quash finding the plaintiff failed to show good cause for failure to comply with the April 4, 2014, progression order (Filing No. 25), authorizing the parties to serve written discovery requests, including requests for production or inspection of documents, only until May 30, 2014. See Filing No. 39. No party sought an extension of the discovery deadline. In addition, the plaintiff failed to show any relevant previously unproduced Emails exist. Id.

On October 6, 2014, the plaintiff filed the instant motion. See Filing No. 41. The plaintiff argues the defendant is playing games by delaying discovery production beyond the deadline, then refusing to produce documents it had previously agreed to produce. Id. The plaintiff denies the subpoena is a "request for production" as contemplated by the court's discovery deadline. Id. The plaintiff writes, "For further detail of the defendant's refusal, see attached email." Id. (referencing p. 2). The attachment, an April 16, 2014, email indicates counsel for the defendant provided the plaintiff with his contact information, then stated he had encountered a problem with his email system on the same date. Id. at 2. The plaintiff responded to both contacts by requesting "all [of his] employment records, i.e., all yearly reviews and Emails pertaining to any Communication about Nit Wang through his employment by NPPD.'" Id. The evidence does not include the defendant's response to the plaintiff's request for discovery. See id.


A party to a federal lawsuit may obtain documents relevant to the matter through discovery as authorized by the Federal Rules of Civil Procedures. Rule 34 authorizes:

A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information....

Fed. R. Civ. P. 34(a) (emphases added).

While Rule 34 applies only to parties involved in a case, "a nonparty may be compelled to produce documents and tangible things or to permit an inspection" under Rule 45. Fed.R.Civ.P. 34(c) (emphasis added); see Fed.R.Civ.P. 45. Rule 45 governs the issuance and content of subpoenas. Since the defendant is a party, Rule 34 applies and ...

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