JOSHUA J. TRUEBLOOD, Plaintiff, v. OFFICER SGT. CAPPOLA, et al., Defendants CASE NO. 3:19-cv-05816-RBL-JRC United States District Court, W.D. Washington Filed July 20, 2020 Counsel Joshua Jeffrey Trueblood, Littlerock, WA, pro se. Aaron Michael Young, Attorney General's Office, Olympia, WA, Candie M. Dibble, Attorney General's Office, Spokane, WA, for Defendants. Creatura, J. Richard, United States Magistrate Judge ORDER ON MOTIONS FOR EXPERT WITNESS AND FOR SUBPOENAS *1 This matter is before the Court on plaintiff's motions for an expert witness and for subpoenas. See Dkts. 55, 56. Plaintiff's motion for an expert witness is denied and his motion for subpoenas is granted, as set forth below. I. Motion for Subpoenas Plaintiff requests that the Court issue subpoenas for witness testimony from other former prisoners at the institution where the alleged events took place. See Dkt. 55. Defendants oppose the request on the basis that the matter is not yet set for trial, that the Court has the “inherent power” to refuse to order and serve pro se subpoenas, and that plaintiff has not provided sufficient information under Fed. R. Civ. P. 45 to issue a subpoena. See Dkt. 57. Upon a party's request, “[t]he clerk must issue a subpoena, signed but otherwise in blank[.]” Fed. R. Civ. P. 45(a)(3) (emphasis added). Typically, the requesting party would then complete the subpoena and serve it. See Fed. R. Civ. P. 45(a)(3). Federal Rule of Civil Procedure 45 contains detailed requirements for the form, contents, and service of such a subpoena, as well as the appropriate procedure for objecting to, moving to quash, or moving to modify a subpoena. Plaintiff's motion is interpreted as a request for the Clerk's Office to issue a subpoena and is granted. Plaintiff should be aware that if his subpoenas impose an undue burden or expense on a person subject to a subpoena, the Court “must” impose an appropriate sanction on plaintiff. Fed. R. Civ. P. 45(d)(1). Plaintiff should also be aware that at present, no trial has been scheduled for this matter, and that the Court's practice is to wait until after any dispositive motions have been filed and ruled upon before setting a trial date (if necessary). The Clerk's Office shall issue the appropriate blank subpoena forms to plaintiff. II. Motion to Appoint Medical Expert Plaintiff's complaint brings deliberate indifference claims against various Department of Corrections employees on the basis that he was forced to wear sewage-contaminated shoes, even though employees knew that he had open cuts on his feet, and that he contracted hepatitis as a result. See Dkt. 9, at 12. No dispositive motions have yet been filed in this matter, although the deadline to do so is July 20, 2020. See Dkt. 34. Plaintiff now requests that the Court appoint a medical expert to show that he contracted hepatitis from exposure to sewage in August 2019. See Dkt. 56. Defendants assert that a medical expert is not necessary because plaintiff has not provided any medical records or other information from which the Court can determine whether the issue requires a medical expert and because whether or not plaintiff contracted hepatitis is an issue related to the amount of possible damages, not whether defendants—who are not medical professionals—were deliberately indifferent to plaintiff's serious medical needs. See Dkt. 58. Federal Rule of Evidence 702 allows for an expert witness to testify about matters if, among other requirements, “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Parties may call their own expert witnesses. In additional, Federal Rule of Evidence 706 authorizes the Court to “order the parties to show cause why expert witnesses should not be appointed[.]” Fed. R. Evid. 706(a). The expert so appointed is entitled to such reasonable compensation as the court may allow, and, in a civil case, unless funds have been provided by law to pay the compensation, the compensation is “paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.” Fed. R. Evid. 706(b). *2 Here, plaintiff proceeds in forma pauperis and, presumably, is not able to compensate an expert witness. Nor does the in forma pauperis statute, 28 U.S.C. § 1915, either provide for the payment of fees and expenses for witnesses (see Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993)), or for the waiver of such fees and expenses. See Hadsell v. Comm'r Internal Revenue Serv., 107 F.3d 750, 752 (9th Cir. 1997). Under such circumstances, the district court has the discretion to appoint an expert and apportion all costs of compensation to one side. See McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.), vacated and remanded on other grounds, 502 U.S. 903 (1991). At this point in the proceedings, no dispositive motions have been filed, and the Court has not yet had the opportunity to review the parties’ evidence and arguments in the context of a summary judgment motion. The Court finds that at this time, it is premature to decide whether the appointment of a medical expert is warranted because the Court has not yet reviewed whether the issues are so complex as to require the testimony of an expert to assist the trier of fact. Accordingly, plaintiff's motion for appointment of a medical expert will be denied without prejudice to plaintiff's renewing such motion, or the Court sua sponte considering such appointment, at an appropriate later date. Accord Wallace v. Dep't of Corr., No. 319CV05330RJBJRC, 2019 WL 3944315, at *1 (W.D. Wash. Aug. 21, 2019). CONCLUSION The motion to subpoena witnesses is interpreted as a motion for subpoena forms and is granted. See Dkt. 55. The Clerk's Office shall provide plaintiff with four blank subpoena forms for a witness to appear and testify in a civil trial or hearing. The motion to appoint an expert witness (Dkt. 56) is denied without prejudice. Attachment Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Nor Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. *3 (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may. on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research. development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they arc kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. *4 (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved, must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.