UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Randal Fritz

v. Civil No. 06-cv-469-PB

Kenneth Brown and

Katharine Daly

O R D E R

Plaintiff moves to compel compliance with subpoenas dated

December 18, 2007 and December 19, 2007. Defendants object.

Background

The subpoenas in question have previously been the subject

of orders by me and by Judge Barbadoro. The state moved to

partially quash on behalf of the defendants, the three subpoenas

issued on December 18 and 19. Because the defendants lacked

standing to move to quash, I denied the defendants’ motion to

quash. Judge Barbadoro reversed on appeal, finding standing

because of the unusual nature of the case and an implicit

intention of the Attorney General to assert privilege on behalf

of the appropriate persons or entities. The motion to quash the

three subpoenas was granted. (Document no. 40).

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Judge Barbadoro also issued the following discovery order:

Within 30 days of the issuance of this order,

the state shall produce all responsive

documents that are relevant to any claim or

defense and that are not subject to a valid

privilege claim. At the same time, it shall

produce a document-specific privilege log of

any withheld documents. The parties shall

meet, confer, and attempt to resolve any

disputes that remain concerning the documents

listed on the privilege log. Any remaining

disputes can be presented to the court in a

motion to compel.

Document no. 40, pp. 2-3.

Plaintiff issued a fourth subpoena which was the subject of

a hearing on February 21, 2008. At that hearing, Judge Barbadoro

quashed the fourth subpoena and instructed the parties on how

they were to proceed with discovery:

1. Counsel were ordered to sit down together face-to-face

without clients and negotiate a discovery plan.

2. Counsel were to work everything out and if they

couldn’t agree, they were to serve document requests,

interrogatories and if necessary, third party subpoenas.

3. Counsel were to collect all responsive documents and

review them.

4. Counsel were to then either produce all relevant

documents or log them on a privilege work product log.

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5. No fishing expeditions were to be conducted and

discovery was to be kept to the narrow issues of the case, namely

that the basis of plaintiff’s firing was a pretense. 

Tr. 2/21/08, pp. 8-12. 

This was consistent with the order on the subpoenas

considered in the February 14th order.

Judge Barbadoro made it clear:

Let’s start again, okay. Start again. The

subpoenas’ wiped out.

Tr. 2/21/08, p.8.

Discussion

All four subpoenas were quashed. They were wiped out. 

There are no existing subpoenas to enforce. The motion is

denied. (Document no. 42). The parties are ordered to comply

with Judge Barbadoro’s orders as set forth. Unless and until

those orders are complied with, no motions to compel may be

filed.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 24, 2008

cc: Pierre C. Rumpf, Esq.

Paula J. Werme, Esq.

Nancy J. Smith, Esq.

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