1It is not clear whether counsel were unaware that the issue

is one of federal discovery law or simply chose to ignore it. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Hampton River Marina, LLC

v. Civil No. 04-cv-428-JD

New Hampshire Insurance Company

O R D E R

 The State of New Hampshire and the Town of Hampton each seek

to quash a subpoena served on them to produce documents in their

possession (see document nos. 9 and 10) as follows: 

All records, reports, statements and

photographs related to the fire that occurred

at Hampton River Marina, Building 1, 55

Harbor Road in Hampton, NH on or about

December 30, 2003. 

Document no. 9, Exhibit A. Neither the movants nor the plaintiff

complied with LR 7.1(a)(2)’s memorandum of law requirements nor

have they addressed any of the applicable federal discovery law

issues.1 Both movants assert that the basis of their objection

is that the documents sought are part of their respective ongoing

criminal investigation of the fire. The fire occurred on

December 30, 2003 and was determined to be of “incendiary” nature

Case 1:04-cv-00428-JD Document 14 Filed 07/14/05 Page 1 of 4
2

on November 30, 2004. There have been no indictments and no

facts have been offered to indicate when, if ever, the

investigations will be complete. 

Discussion

In deciding this issue it is useful, as it is in most cases,

to look at the applicable law. Had counsel considered the

applicable law they would have noted that: 

A nonparty’s motion to quash a subpoena

(under Rule 45(c)(3)) is, in essence, the

same as a motion for a protective order that

discovery not be had under Rule 26(c). 

Therefore, the court is required to balance

relevance, need, confidentiality, and harm. 

9 James Wm. Moore, et al., Moore’s Federal Practice § 45.04[3][a]

(3d ed. 2004). 

Further, the party seeking the protective order (or seeking

to quash the subpoena) has the burden of showing good cause for

issuance of the requested order. Public Citizen v. Liggett

Group, Inc., 858 F.2d 775, 789 (1st Cir. 1988). There is

precedent for staying discovery during a criminal investigation. 

See for example, Williamson v. United States Dept. of

Agriculture, 815 F.2d 368, 382 (5th Cir. 1987); G-69 v. Degnan,

130 F.R.D. 326 (1990) and 130 F.R.D. 339 (1990). The parties

however have cited no cases on point and have not considered,

Case 1:04-cv-00428-JD Document 14 Filed 07/14/05 Page 2 of 4
3

briefed or argued good cause; the need to balance relevance,

need, confidentiality, and harm; nor the appropriateness for a

two or three month stay. 

The Town does not allege that it has any active and ongoing

criminal investigation but rather that the State Fire Marshal

does. See document no. 10, ¶ 3. The Town does not allege that

its officer’s investigation is ongoing. 

The State makes a blanket statement, totally unsupported by

the affidavit required by LR 7.1(a)(2), that the Fire Marshal’s

criminal investigation is (1) ongoing, (2) that such

investigations are exempt from disclosure, (3) that you couldn’t

get the documents under the Freedom of Information Act, and (4)

disclosure would seriously damage the investigation, as well as

risk circumvention of the law. “(3)” is irrelevant. “(1)” and

“(3)” are conclusory statements unsupported by affidavit or fact. 

“(2)” is a conclusory legal proposition without citation to

controlling authority. 

It is not this court’s responsibility to protect the parties

from the inadequacies of their filings. Movants have not met

their burden. They have failed to comply with LR 7.1(a)(2),

failed to show good cause and failed to carry their burden of

Case 1:04-cv-00428-JD Document 14 Filed 07/14/05 Page 3 of 4
2Movants have not even addressed why the investigation of a

fire whose embers cooled one and a half years ago continues on

with no apparent end in sight.

4

balancing relevancy, need and harm.2 The motions (document nos.

9 and 10) are denied. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 14, 2005

cc: John G. Cronin, Esq.

 Mark S. Gearreald, Esq.

 William D. Pandolph, Esq.

 Nancy J. Smith, Esq.

Case 1:04-cv-00428-JD Document 14 Filed 07/14/05 Page 4 of 4