Ugwuonye motion to oppose subpoenas - NigerianMuse

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Case 8:09-cv-00658-PJM Document 37 Filed 06/09/2009 Page 6 of 10 1. “[T]he right to discovery is not unlimited, and does have ‘ultimate and necessary boundaries’.” Allen v. Howmedica Leibinger, GmhH, 190 F.R.D. 518 (W.D. Tenn. Nov. 22,1999), citing Hickman v. Taylor, 329 U.S. 495, 497 (1947). And in that regard, “[t]he trial court has the right to control the discovery schedule...” Hina v. Anchor Glass Container Corp., 2008 U.S. Dist. LEXIS 41577 (S.D. Ohio May 22, 2008), referencing Kennedy v. Cleveland, 797 F.2d 297, 300-01 (6th Cir. 1986). Moreover, the power to quash a subpoena lies with the issuing court. See Fed. R. Civ. P. 45(c)(3)(A). See also Tiberia v. CIGNA Ins. Co., 40 F.3d 110 (5 th Cir. 1995). Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure provides that a Court must quash a subpoena if it: “(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies…” 2. Here, Defendant Aluko seeks to obtain or inspect documents which are private and privileged to the Government of Nigeria, relating to confidential transactions between the Government of Nigeria and third parties. 3. At the time that the defendant sought these documents, the posture of the case shows clearly that the case is either terminated or is due to be terminated as a matter of law. In Columbia Insurance Co. v. SEESCANDY, Inc., 185 F.R.D. 573, 578-80 (N.D. Cal 1999), the court required a showing that the Complaint would survive a motion to dismiss before it could authorize a subpoena on a non-party. In the present case, the case of Aluko is to be dismissed as moot, both parties having agreed that the case be dismissed and it appearing that the court lacks subject matter jurisdiction. Even if none of the foregoing counts, the record of this case will show that the plaintiff filed a notice of dismissal under Rule 41(a)(1)(i) as far back as May 21, 2009.
Case 8:09-cv-00658-PJM Document 37 Filed 06/09/2009 Page 7 of 10 4. Seeking these documents at this time betrays an ulterior motive on the part of the defendant, as such documents, at the time they were sought, would clearly not serve any purpose in the litigation in question. See the case of Keyes v. Bowen, Obama, et.al., Superior Court of the State of California, County of Sacramento, March 26, 2009 1 . 5. These documents are protected because they are not otherwise available to the public and the only way the defendant could obtain them is to operate under the color of law. 6. There is no fact in issue which the documents can prove or disprove. Defendant Aluko stated in his pleading that he did not defame plaintiff but was only participating in a public discourse. If so, what do the documents in question have to prove then If Aluko had filed an answer to the Complaint and asserted the defense of truth, then it could be conceivable to argue that he is looking at these documents for the purpose of establishing the defense of truth. In Keyes v. Bowen, Obama, et.al., Respondents President Barack Obama, Vice President Joe Biden, and others moved for an order quashing the subpoena by petitioners directed to third party, Occidental College, demanding access to President Barack Obama’s “academic and housing records.” In that case, the respondents contended that the subpoena sought information that was neither relevant to this lawsuit nor was reasonably calculated to lead to the discovery of admissible evidence. The court agreed and quashed the subpoena. The case of Aluko deserves the same treatment. Aluko’s subpoenas are a pretext to gain access to private documents pertaining to the affairs of the Nigerian Government for no other purpose than 1 Though this is a decision by a state court, the legal principles in issue are identical and consistent with the theory that the Court exercising its inherent power to run the court would manage discover in the case before it. This case should serve as a persuasive authority for this Court.
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Ugwuonye motion to oppose subpoenas - NigerianMuse

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