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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Shari Ferreira, et al.,

Plaintiffs,

v. 

Paul Penzone, et al.,

Defendants.

No. CV-15-01845-PHX-JAT

ORDER 

Pending before the Court is Plaintiff Shari Ferreria’s (“Plaintiff”) Motion to Quash 

Defendant’s Third Party Subpoena (“Motion to Quash,” Doc. 250) filed on January 19, 

2018. Defendants filed a timely Response (Doc. 252) on February 2, 2018. Plaintiff then 

filed its Reply (Doc. 253) on February 9, 2018. The Court now rules on the Motion. 

I. BACKGROUND 

 Plaintiff brought this action on behalf of decedent Zachary Daughtry in her 

capacity as personal representative of the estate against Defendants, following the 

decedent’s death on July 20, 2014. (Doc. 76 at 2). The Court explained the background 

facts in its Order on Defendants’ Motion for Summary Judgment and its Order on 

Defendants’ Motion to Dismiss, so the Court will not repeat them here. (See Doc. 244 at 

2; Doc. 76 at 2). On February 21, 2016, the Court entered a scheduling order that set a 

deadline for discovery in this case of February 21, 2017. (Doc. 26). The Court later 

extended the discovery deadline to June 30, 2017. (Doc. 163). Despite the fact that this 

deadline had passed, on January 12, 2018, Defendants served a subpoena on the 
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Maricopa County Sherriff’s Office (“MCSO”). (Doc. 250-2). The subpoena sought 

production of “Nice Vision video recordings of Ryan Bates (TO84946) and his defense 

team, that were produced and reviewed by Bates’ RTC doctor” across a range of dates, 

and set a deadline of January 22, 2018, for compliance. (Id.). Plaintiff received a copy of 

this subpoena on January 17, 2018, and promptly filed the pending Motion to Quash. 

(Doc. 250 at 1–2). 

II. MOTION TO QUASH

A. Legal Standard 

 The primary way for a party to request that a nonparty produce documents is to 

use a subpoena under Federal Rule of Civil Procedure (“Rule”) 45. Internmatch, Inc. v. 

Nxtbigthing, LLC, 2016 WL 1212626, at *1 (N.D. Cal. 2016). Rule 45 subpoenas are 

subject to the more general provisions of Rule 26, which outline the permissible scope of 

discovery. R. Prasad Indus. v. Flat Irons Envtl. Sols. Corp., 2014 WL 2804276, at *2 (D. 

Ariz. 2014). Because of this, “courts have found that Rule 45 subpoenas sought after the 

discovery cut-off are improper attempts to obtain discovery beyond the discovery 

period.” Internmatch, Inc., 2016 WL 1212626, at *1 (N.D. Cal. 2016) (first citing Rice v. 

United States, 164 F.R.D. 556, 557–59 (N.D. Okla. 1995); and then citing FTC v. 

Netscape Commc’ns Corp., 196 F.R.D. 559, 560–61 (N.D. Cal. 2000)); see also Joseph 

P. Carroll Ltd. v. Baker, 2012 WL 1232957 at *2 (S.D.N.Y. 2012) (“[I]t is black letter 

law that parties may not issue subpoenas pursuant to Federal Rule of Civil Procedure 45 

‘as a means to engage in discovery after the discovery deadline has passed.’”) (citations 

omitted).1 However, Rule 45 subpoenas “may be employed in advance of trial and 

outside of a discovery deadline for the limited purposes of memory refreshment, trial 

 1 Defendants argue that “[p]arties who were not themselves the target of a 

subpoena do not have standing . . . to move to quash.” (Doc. 252 at 2). It is generally true 

that “a party has no standing to quash a subpoena upon a third party, except as to claims

of privilege relating to the documents being sought.” Orthoflex, Inc. v. Thermotek, Inc., 

2012 WL 1038801, at *1 (D. Ariz. 2012) (citing Windsor v. Martindale, 175 F.R.D. 665, 

668 (D. Colo. 1997)). This general rule does not apply, however, when a party moves to 

quash a third party subpoena on the basis of its untimeliness. E.g., Davis v. Tri-Cty. 

Metro. Transp. Dist., 2015 WL 3823826, at *1 (D. Or. 2015) (granting motion to quash 

subpoena served on third party after expiration of discovery deadline); Rice, 164 F.R.D. 

at 556–58 (same). 
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preparation, or to secure for the use at trial original documents previously disclosed by 

discovery.” Circle Grp., L.L.C. v. Se. Carpenters Reg’l Council, 836 F. Supp. 2d 1327,

1352. (N.D. Ga. 2011). 

B. Discussion

 There is no question in this case that Defendants issued their subpoena after the 

close of discovery. (Doc. 250-1). Therefore, this Court must quash the subpoena unless it 

falls within one of the limited exceptions to this rule or Defendants establish an “excuse 

for their tardiness.” See Circle Grp., L.L.C., 836 F. Supp. 2d at 1352; MedImmune, LLC 

v. PDL Biopharma, Inc., 2010 WL 1266770, at *1 (N.D. Cal. 2010). Defendants do not 

allege that the subpoena is being used for one of the limited purposes described above, 

and instead attempt to excuse the late subpoena on two grounds. First, Defendants claim 

they were unaware that videos existed until after discovery had concluded. (Doc. 252 at 

4). Second, Defendants argue that because Plaintiff made a public records request on 

January 12, 2018, the motion should be denied because Plaintiff has “unclean hands.” (Id.

at 5).

 Defendants argue that “where the information subpoenaed was unknown during 

discovery, service of a subpoena after the close of discovery is appropriate.” (Id. at 4 

(citing Integra Life Servs. I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999))). 

Defendants briefly state that they did not know about the existence of the videos sought 

by the subpoena until the videos were mentioned in an order of the Maricopa County 

Superior Court, filed on December 20, 2017. (Doc. 252 at 4); (Doc. 252-1 at 2–3). But, 

courts generally require a party to actually explain why it was unaware of the subpoenaed 

material before excusing a subpoena issued after the discovery deadline, and a single 

statement—absent any explanatory facts—does not satisfy this standard. E.g., Hickey v. 

Myers, 2013 WL 2418252, at *9 (N.D.N.Y. 2013) (stating that the fact that the report that 

prompted the subpoena was issued after the discovery deadline did not “excuse Plaintiff’s 

failure to request this information during routine discovery” because “Plaintiff knew the 

importance of obtaining this information prior to the issuance of the citation”); 
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MedImmune, 2010 WL 1266770, at *1–2 (finding no good cause to excuse tardy 

subpoena even though a party alleged that it did not realize the importance of the 

subpoenaed documents until after reviewing notes produced on the last day of the 

discovery period). Defendants offer no explanation whatsoever about why they did not 

know of the existence of the subpoenaed videos, a tenuous claim considering the fact that 

they were held by MCSO and Defendants in this case include Maricopa County and the 

Sherriff in his individual capacity. See, e.g., Puritan Inv. Corp. v. ASLL Corp., 1997 WL 

793569, at *2 (D. Penn. 1997) (granting a motion to quash where the party “does not and 

credibly could not aver that it was unaware of the possible existence of the subpoenaed 

documents before the discovery deadline”) (citing McNerney v. Archer Daniels Midland 

Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995)). The Court also finds the fact that 

Defendants “were given ample opportunity to complete discovery before trial” in this 

case is a further factor weighing against them. See Ghandi v. Police Dep’t, 747 F.2d 338, 

354 (6th Cir. 1984). Finally, the Court agrees with the statement in Rice that, “[i]f 

Defendant[s] believed the information to be of importance to its case, [they] could have 

attempted to show good cause for modifying the [discovery] deadlines.” Rice, 164 F.R.D. 

at 558. Therefore, the Court finds that Defendants fail to establish an excuse for their 

tardy subpoena. 

As for Defendants’ second argument, the Court finds that the “clean hands” 

doctrine does not apply here. The maxim that “he who comes into equity must come with 

clean hands” is a “self-imposed ordinance that closes the doors of a court of equity to one 

tainted with inequitableness or bad faith relative to the matter in which he seeks relief.” 

Precision Instrument Mfg. Co. v. Automotive Maint. Mach. Co., 324 U.S. 806, 814 

(1945). Necessarily, this doctrine applies only when a plaintiff seeks an equitable 

remedy. See Adler v. Fed. Republic of Nigeria, 219 F.3d 869, 877 (9th Cir. 2000) (stating 

that the clean hands doctrine applies to “plaintiffs seeking equitable relief”) (emphasis 

added) (citing Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985)). Here, 

Plaintiff does not seek an equitable remedy, but instead seeks to quash a tardy 
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subpoena—a remedy the Rules provide to her. See Fed. R. Civ. P. 45(d)(3). Therefore, 

the Court rejects Defendants contention that Plaintiff is barred from relief because of the 

“clean hands” doctrine.

Accordingly, the Court finds that Defendants improperly issued their subpoena 

after the close of discovery and have failed to establish an excuse to justify their 

tardiness.

2

III. CONCLUSION

 Based on the foregoing, 

IT IS ORDERED that Plaintiff’s Motion to Quash (Doc. 250) is GRANTED.

The Clerk of the Court shall not enter judgment at this time.

Dated this 9th day of April, 2018.

 2 Defendant also argues that, “[b]ecause Plaintiffs allege the Subpoena constituted 

discovery, they were required to comply with the Court’s discovery dispute process prior 

to filing their discovery motion.” (Doc. 252 at 4) (citing Doc. 250 at 2). The Court rejects 

this argument. Because discovery closed on June 30, 2017, Plaintiff was not required to 

abide by the Court’s discovery dispute process and appropriately challenged the 

subpoena through a motion to quash.