1. Grants plaintiff leave to immediately serve upon the Store Manager of Mail Boxes Etc. (MBE) Store #2900 (Store Manager is Mr. Aaron Gardin), of Scottsdale, AZ, a subpoena duces tecum directed to the identity, and true and correct (or last known) mailing address of the Defendant, Dan Doherty, as well as provide copies of any written documents dealing with the mailbox rented by Mr. Doherty, such as mailbox contracts, authorizations to sign for registered or certified mail, as well as the status of several certified mail articles mailed to Defendant Doherty by the Plaintiff.

2. Shortens the time required for MBE to respond to five (5) calendar days from the date of receipt of the order.

The Plaintiff has just become privy to information indicating that the mailing address used by the Plaintiff for the mailing of the waiver of service under F.R.Civ.P. 4(d), is in fact a franchise of Mail Boxes Etc, and is not the true business or domicile address of the Defendant, Dan Doherty. This information is attached hereto as Exh. B.

Currently, Plaintiff is unable to determine the identity and/or true location of the Defendant, and is therefore unable to obtain relief from the Defendant for the acts of the Defendant complained of in the Plaintiff's First Amended Complaint. Approval of this motion will enable Plaintiff to seek the true mailing address (or the address Defendant used with MBE) of the Defendant to effect true service of process onto the Defendant under F.R.Civ.P 4. At the current time, the Plaintiff is unable to determine with 100% particularity that the Defendant is actually receiving his copies of the documents for this case, and as such the Plaintiff is unable to consult with the Defendant, or with his counsel (if any) concerning the scheduling of any pre-trial meetings, offers of settlement or compromise, or discussions of discovery. Due to the limited nature of information requested from MBE, Plaintiff respectfully requests expedited discovery to protect his rights to relief, and to permit this case to go forward expediently. This subpoena duces tecum as written is not oppressive upon MBE, nor will it require an inordinate amount of time to satisfy. Such subpoena will be served upon Mr. Gardin of MBE by Certified Mail. Doe v. Hersemann, 155 F.R.D. 630 (N.D. Ind., 1994) (Certified mail satisfies Rule 45(b)(1) requirements for delivery by a non-party).
 

This application filed with the clerk of court on November 25, 1997.
 
 
 
 

___________________________

Douglas K. Snow
Plaintiff Pro-Se
 
 
 
 

Plaintiff's Application for Third Party Discovery directed to the Store Manager of Mail Boxes Etc, Store 2900, of Scottsdale, AZ, having been presented to this Court and the Court having reviewed the Application and the other papers on file in this case,

IT IS HEREBY ORDERED THAT:

1. Plaintiff's Application for Third Party Discovery from said MBE store is hereby granted in the form at Exh. A to Plaintiff''s Application. Plaintiff may serve upon said MBE store the Subpoena Duces Tecum as set forth as Exh. A to this Application.

2. The time for said MBE store is reduced to respond and to produce the documents sought in said Subpoena is set for five (5) calendar days from the date of service.

3. Plaintiff, upon request of MBE, may provide MBE with copies of the documents filed in this case.
 

Dated this ______ day of __________, 1997.
 

____________________________________
Robert L. Miller, Jr.
United States District Judge
 
 

Mr. Douglas K. Snow
Plaintiff pro-se
[Address removed from webposted copy]

Documents ordered to produce:

1. Copies of all written contracts, mailbox rental agreements, mailbox payment records, or any other records which refer to box #8140, which is/was rented to the Defendant, Dan Doherty.

2. Copies of all written contracts, mailbox rental agreements, mailbox payment records, or any other records which deal with other mailboxes at MBE which are/were rented by Defendant Dan Doherty.

3. Any written signature card, pickup receipt, or other written material showing whether the following Certified mail documents, sent by the Plaintiff in connection with this Court action, are still in box #8140 (or any other MBE box), or have been picked up:

1) Certified Mail/Restricted Delivery Item, Receipt No. P216-092-351, mailed by the Plaintiff from the South Bend, IN Post Office, on 9-22-97.

2) Certified Mail/Restricted Delivery Item, Receipt No. Z045-450-364, mailed by the Plaintiff from the Goshen, IN Post Office, on 10-28-97.

Any other documents under the control of MBE as ordinary business records which would assist the Plaintiff from being able to determine the true and correct business or domiciliary (or last known) address and phone number of the Defendant in this case.
 

This subpoenas duces tecum is hereby dated this _______ day of _______, 1997.
 
 

__________________________________
Clerk of court

Under F.R.Civ.P. 45(D), the following information is provided for your information.

F.R.Civ.P. 45(3)(c), Protection of persons subject to subpoenas.
 

(1) A party or an attorney responsible for the issuance and service of a subpoenas shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings or a reasonable attorney's fee.
 

(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
 

(B) Subject to para. (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days from the date of service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect the premises except pursuant to an order of the court by which the subpoena has been issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel the production shall protect any person who is not a party or an officer of the court from significant expense resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it

(i) fails to allow for reasonable time for compliance;

(ii) requires a person who is not a party or an officer of the party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which trial is held, or

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(3)(B) If a subpoena

(i) requires disclosure of trade secret or other confidential research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion of information not describing specific events or occurrences in dispute and resulting from the expert's study made not at request of any party, or

(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena was issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
 

F.R.Civ.P. 45(3)(d), Duties in Responding to Subpoena.
 

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of ordinary business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim