T.H. v. Martinez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
T.H.,
Plaintiff,
v. 	No. 2:24-cv-00887-MIS-KRS
MICHAEL ANDREW MARTINEZ,
in his individual capacity,
Defendant,
and
DOÑA ANA COUNTY,
Defendant-in-Intervention.
ORDER
THIS MATTER is before the Court on the County’s Motion For Order Directing
Subpoenaed Witnesses To Attend Their Depositions (“Motion”) (Doc. 171).
Good Faith Conferral Over Discovery Disputes
The Motion states that when counsel for Plaintiff was contacted about whether Plaintiff
opposed the Motion, Plaintiff’s counsel stated: “if you feel you complied with the rules on service
of subpoena then I would say we do not object to your motion.” (Id. at 1). Based on this response,
the County filed the Motion as “Unopposed.” However, the Motion in fact was not unopposed, as
shown by the emails attached to the Motion as well as Plaintiff’s written response in opposition to
the Motion and the emails attached thereto. As the emails attached to the Motion indicate,
Plaintiff’s counsel indicated their opinion that the subpoenas were not properly served. At one
point in the email exchange, one of Plaintiff’s counsel did make the statement: “if you feel you
complied with the rules on service of subpoena then I would say we do not object to your motion.”
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Seizing upon Plaintiff’s counsel’s statement in the aforementioned email, the County filed the
Motion as unopposed, despite the County clearly recognizing in other parts of the email exchange
that Plaintiff’s position was that the witnesses in question could not be compelled to attend their
depositions because the subpoenas had been improperly served, or otherwise didn’t comply with
applicable rules. See (Doc. 171-6 at 3). Plaintiff’s counsel is partly at fault for having made the
statement that opened the door to the County filing this premature motion. But the County also is
at fault for filing a motion as “unopposed,” when it knew or should have known the motion was
opposed, and without addressing the issue identified by Plaintiff’s counsel in counsels’ email
exchange as the reason for Plaintiff’s opposition.
The Court finds that neither Plaintiff’s response to the County’s Local Rule 7.1(a) inquiry
(as quoted in the Motion), nor the County’s filing of the Motion as unopposed on the basis of that
response, fully complies with the conferral requirement of D.N.M. LR-Civ. 7.1(a). The Court also
finds that the parties failed to comply with their good faith obligations to confer over disputed
discovery in an attempt to resolve those issues without court intervention. See Fed. R. Civ. P.
37(a)(1). This is not the first time that the Court suspects that a discovery motion could have been
avoided but for counsels’ apparent unwillingness to engage over discovery disputes in a
substantive way with the goal of seeking in the first instance to resolve those disputes through
compromise and cooperation.
Merits Issues
The Court does not believe it is necessary to address the service issue, at least not at this
time. The parties are directed to meet and confer, which must occur either in person or by
telephone, in an attempt to seek a resolution of their disagreements regarding the depositions of
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the subpoenaed witnesses by agreement. To the extent that the County believes that compromise
is unnecessary because of its position that the subpoenas were properly served, the County should
take note of the various issues that exist with the County’s Motion as filed.
First, the Motion cites Fed. R. Civ. P. 37(d)(1)(A)(i) and Fed. R. Civ. P. 37(d)(2) as the
legal basis for an order directing the subpoenaed witnesses to attend their depositions, see (Doc.
171 at 4), when the plain language of those provisions applies only to parties. The subpoenaed
witnesses at issue in the Motion are not parties to this litigation. The very case law cited by the
County in the Motion makes clear that the County’s citation to Rule 37 was inappropriate. See
Daniel & Max LLC v. BAB Holding Co., LLC, No. CV 19-173 GJF/GBW, 2021 WL 2953114, at
*4 (D.N.M. July 14, 2021) (“Neither Rule 37(b)(2) nor Rule 37(d) authorizes the Court to hold
Mr. Dixson in contempt or otherwise sanction him since he is not a party to this case.”).
Second, as Daniel & Max LLC also makes clear, assuming the County is correct that the
subpoenas were properly served, the relief to which the County would be entitled in that situation
would not be an order directing the subpoenaed witnesses to attend their depositions, but a
contempt order under Rule 45. Id. at *5 (“Rule 45 gives courts the discretion to hold a subpoenaed
individual in contempt for failing to comply with a subpoena without adequate excuse.” (citing
FED. R. C IV. P. 45(g)). However, “it [is] rare for a court to use contempt sanctions to do other than
order attendance at a deposition without first ordering compliance with a subpoena.” Id. (quoting
FED. R. C IV. P 45(g) advisory committee’s note to 2013 amendment). Therefore, the Motion should
have requested an order directing the third-party witnesses to show cause why they should not be
held in contempt.
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Third, the Motion fails to establish a factual basis for a contempt order. “To prevail in a
civil contempt proceeding, the movant has the burden of proving, by clear and convincing
evidence, that (i) the subpoena was valid; (ii) the contemnor had knowledge of it; and (iii) the
contemnor disobeyed it. Disobedience, though, need not be willful. If the movant satisfies its
burden, the burden shifts to the non-movant to show that its noncompliance is excused.” Daniel &
Max LLC v. BAB Holding Co., LLC, 2021 WL 2953114, at *3 (internal citations omitted). D.N.M.
LR-Civ. 7.3(b) provides that “[p]arties must submit evidence, in the form of declarations,
affidavits, deposition excerpts, or other documents, in support of allegations of fact” in motions
and other filings. And attorney statements in briefs are not evidence. Skyline Corp. v. N.L.R.B.,
613 F.2d 1328, 1337 (5th Cir. 1980); see also In re Lang, 293 B.R. 501, 513 (B.A.P. 10th Cir.
2003). Thus, the Motion fails to provide appropriate supporting evidence for the requested relief.
Finally, the Motion fails to show that the third-party witnesses have been provided with
notice of the Motion. Notice must inform the witnesses that the Court is considering holding them
in contempt under Rule 45 for not complying with the County’s subpoenas, and that they must
provide the Court with an adequate excuse for their noncompliance to avoid being held in
contempt. See Daniel & Max LLC, 2021 WL 2953114, at *4; see also id. at *5 (“Due process
requires that Mr. Dixson have adequate notice of and fair opportunity to be heard on any finding
of contempt.”).
FOR 	THE 	FOREGOING 	REASONS, 	the 	County’s 	Motion 	For 	Order 	Directing
Subpoenaed Witnesses To Attend Their Depositions (Doc. 171) is DENIED without prejudice.
The parties are ordered to meet and confer in an attempt to resolve their dispute over the third-
party depositions, which must occur either in person or by telephone.
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IT IS FURTHER ORDERED that, should the County file another motion related to
enforcing compliance with third-party subpoenas, said motion must comply with the requirements
set forth in this Order. In addition, the County must serve the motion on the subpoenaed witnesses,
with service including a cover letter indicating when the motion was filed in Court, and notifying
the witnesses that: (1) they may file a written response within fourteen days of the motion being
served on them; (2) the Court will construe their silence as a waiver of their right to be heard on
the contempt issue; and (3) if they do file a response to the Motion, the Court will hold an
evidentiary hearing on whether to hold them in contempt pursuant to Rule 45(g). Service must be
by First Class, U.S. Mail Service, postage prepaid, addressed to the witnesses at their home
address, as well as electronically if email addresses are available for said witnesses. Proof of
service must be filed with the Court.
IT IS SO ORDERED this 11th day of December, 2025.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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