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David A. Chami, AZ #027585

PRICE LAW GROUP, APC

8245 N. 85th Way

Scottsdale, AZ 85258

T: (818) 600-5515

F: (818) 600-5415

david@pricelawgroup.com

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ

1935 W Belmont Ave.

Chicago, IL 60657

T: (312) 635-0800

F: (202) 280-1039

haytham@farajlaw.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin as Personal 

Representative of the Estate of 

Muhammad Abdul Muhaymin Jr., 

Plaintiff,

v.

City of Phoenix, an Arizona Municipal 

Corporation, et al.,

Defendants.

Case No.: CV-17-04565-PHX-SMB

PLAINTIFF’S MOTION TO QUASH 

AND/OR FOR PROTECTIVE 

ORDER REGARDING

SUBPOENAS ISSUED 

TO PLAINTIFF’S RETAINED 

EXPERT WITNESSES, DR. 

BENNET OMALU AND 

MR. SCOTT DEFOE

NOW COMES Plaintiff, Mussalina Muhaymin, as Personal Representative of the 

Estate of Muhammad Abdul Muhaymin, Jr., by and through undersigned counsel, and

pursuant to Rules 26(c)(1)(A), 45(b), and 45(d)(3)(A), moves for a Protective Order and/or 

to Quash the subpoenas commanding production of documents from Plaintiff’s experts, 
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Dr. Bennet Omalu and Mr. Scott DeFoe, by September 4, 2020. Good cause exists to 

protect Plaintiff’s experts because the purported subpoenas were not properly served,

require compliance beyond the geographical limits specified in Rule 45(c), fail to allow a 

reasonable time to comply, and are untimely pursuant to the court-ordered written 

discovery deadline. In support thereof, Plaintiff states as follows:

MEMORANDUM OF POINTS AND AUTHORITIES

I. BACKGROUND

On August 17, 2020, defense counsel filed a notice of intent to issue subpoenas

to Plaintiff’s expert witnesses, Dr. Bennet Omalu and Mr. Scott DeFoe, seeking production 

documents pursuant to Fed. R. Civ. P. 45. (Dkt. 207). Defense counsel did not otherwise 

inform Plaintiff’s counsel of their intent to serve these subpoenas on Plaintiff’s expert 

witnesses seeking production of documents, which could and should have been requested 

from Plaintiff pursuant to Fed. R. Civ. P. 34. Nor did Defendants’ counsel request that 

Plaintiff’s counsel accept service on its expert’s behalf. Defense counsel was fully aware 

that Plaintiff’s lead counsel was preparing for trial at the time the notice was filed and 

would likely be in trial for the next few weeks. Plaintiff’s counsel did not discover that any 

such subpoenas were issued until one of Plaintiff’s expert witnesses reached out regarding 

receipt of the subpoena via certified mail on or about August 31, 2020. 

II. ARGUMENT

Plaintiff and her retained expert witnesses respectfully request that this Court 

quash and/or issue a protective order regarding the subpoenas mailed to Plaintiff’s experts 

because they were not properly served, require compliance beyond the geographical limits 
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specified in Rule 45(c), fail to allow a reasonable time to comply, and are untimely pursuant 

to the court-ordered written discovery deadline. 

a. RECEIPT OF SUBPOENAS

The purported subpoena commanding production of documents from Mr. Scott 

DeFoe was sent to his P.O. Box in Huntington Beach, CA, via certified mail, on or after 

August 19, 2020, with documents to be delivered to defense counsel’s office, 384 miles 

away, on September 4, 2020, at 9 a.m. Mr. DeFoe did not receive the subpoena until on or 

about August 31, 2020. 

Similarly, the purported subpoena commanding production of documents from 

Dr. Bennet Omalu was sent to his office in Stockton, CA, via certified mail, on or after 

August 19, 2020, with documents to be delivered to defense counsel’s office, 723 miles 

away, on September 4, 2020, at 9 a.m. 

b. IMPROPER SERVICE

The subpoenas issued to Plaintiff’s retained experts, Dr. Bennet Omalu 

and Mr. Scott DeFoe, should be quashed or a protective order entered because they 

were not properly served. 

Rule 45(b)(1) provides, in relevant part, that “[s]ervice of a subpoena upon a 

person named therein shall be made by delivering a copy thereof to such person[.]” The 

majority of courts understand “delivering” to require personal service of the subpoena. See

Rijhwani v. Wells Fargo Home Mortg., Inc., No. C 13-05881 LB, 2015 WL 848554, at *4 

(N.D. Cal. Jan. 28, 2015) (citation omitted); Spencer, 2006 WL 2734284, at *1 (citations 

omitted); Newell v. Cnty. Of San Diego, No. 12cv1696-GPC (BLM), 2013 WL 4774767, 

at *2 (S.D. Cal. Sept. 5, 2013) (citations omitted); see also Wright & Miller, 9A Fed. 
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Practice & Proc. § 2454 (3d ed. 2015) (“The longstanding interpretation of Rule 45 has 

been that personal service of the subpoena is required.”). Without proper service, 

Plaintiff’s experts are under no obligation to comply.

c. SEEKS PRODUCTION OF DOCUMENTS OUTSIDE 

GEOGRAPHICAL LIMITATIONS SET FORTH IN RULE 45

The subpoenas are improper and must be quashed because they command 

production of documents outside of the geographical limitations set forth in Rule 45.

A subpoena may command “production of documents, or tangible things at a 

place within 100 miles of where the person resides, is employed, or regularly transacts 

business in person.” F.R.C.P. 45(c)(2)(A) (emphasis added). Pursuant to Rule 

45(d)(3)(A)(ii), the court must quash or modify a subpoena that requires a person to 

comply beyond the geographical limits specified in Rule 45(c). Because the place for 

production is far more than 100 miles from Plaintiffs’ experts, the subpoena must be 

quashed. 

d. FAILURE TO ALLOW A REASONABLE TIME TO COMPLY

The subpoenas are also patently improper and must be quashed because 

they failed to allow Plaintiff’s experts a reasonable time to comply pursuant 

F.R.C.P. 45(d)(3)(A)(i). 

The scope of discovery that can be requested through a subpoena under Rule 45 

is the same as the scope under Rule 26(b). Fed. R. Civ. P. 45 Advisory Comm.'s Note 

(1970) (“[T]he scope of discovery through a subpoena is the same as that applicable to 

Rule 34 and other discovery rules.”). Where the information sought via a subpoena could 

have been requested from the Plaintiff pursuant to F.R.C.P. 34, the time to respond to such 

subpoenas is typically the same – i.e., 30 days. Mr. DeFoe, for example, did not receive 
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the purported subpoena until on or about August 31, 2020, 4 days before the time specified 

for compliance. 

The purported subpoenas must be therefore be quashed because they did not 

allow Plaintiff’s experts a reasonable time to comply. 

e. ISSUED BEYOND DEADLINE TO SERVE WRITTEN DISCOVERY

Finally, the subpoenas are untimely because the deadline to serve written 

discovery was August 7, 2020. (Dkt. 206).

The defense may not use a subpoena to circumvent the court ordered discovery 

deadlines. For that reason alone, Defendants’ subpoenas are untimely, unenforceable, and 

must be quashed. 

III. CONCLUSION

For the foregoing reasons, Plaintiff and her retained expert witnesses

respectfully request that this Court quash and/or issue a protective order regarding the 

aforementioned subpoenas because they were not properly served, require compliance 

beyond the geographical limits specified in Rule 45(c), fail to allow a reasonable time to 

comply, and are untimely pursuant to the court-ordered written discovery deadline. 

Respectfully submitted this 3rd day of September, 2020.

PRICE LAW GROUP, APC

/s/David A. Chami

David A. Chami, AZ #027585

Attorneys for Plaintiff
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CERTIFICATE OF SERVICE

I hereby certify that on September 3, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using the ECF system. Notice of such filing will be 

sent to all attorneys of record in this matter. Since none of the attorneys of record are nonECF participants, hard copies of the foregoing have not been provided via personal delivery 

or by postal mail.

PRICE LAW GROUP, APC

/s/Florence Lirato