United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
motions are before the Court: (1) a motion to quash subpoena,
filed by Stephen M. Hess, Esq (ECF No. 39); (2)
Respondents’ motion for clarification (ECF No. 42); and
(3) Petitioner’s unopposed motion for extension of time
in which to complete discovery (first request) (ECF No. 40).
The Court will grant the motions to quash and for extension
of time, but deny the motion for clarification.
MOTION TO QUASH (ECF NO. 39)
the matters on which the Court granted Petitioner leave to
conduct discovery was to find records from his original plea
counsel, Bruce Voorhees. Petitioner thus served a subpoena
upon Hess. Hess states that he had rented out office space to
Voorhees. Hess also states that Voorhees retired around 4
years ago and took all his work product when he left. Hess
notes that Hess & Associates, his law firm, does not have
custody of any of Voorhees’ work product. (ECF No. 39
Petitioner is correct that a motion to quash a subpoena is
not the correct method for Hess to make this response.
Petitioner argues that the correct method would be a response
to the subpoena, signed under oath. However, Hess has stated
that he does not have any of Voorhees’ work product.
Furthermore, Hess is an attorney admitted to practice in this
court. The court will accept Hess’ representation and
grant his motion. If Petitioner later finds evidence to the
contrary, then he can file the appropriate motion.
MOTION FOR CLARIFICATION (ECF NO. 42)
Court granted Petitioner leave to conduct depositions of
Stephen Tully and Bryan (possibly “Brian”) Tully
(collectively, “the Tullys”). Respondents have
asked for clarification as to what protections both would
have against possibly incriminating themselves.
a deposition is not a custodial police interrogation within
the meaning of Miranda v. Arizona, 384 U.S. 436
(1966). See United States v. White, 589 F.3d 1283,
1285 (5th Cir. 1979). Consequently, the Tullys need not
receive the warnings required by Miranda. The Tullys
also do not have the right to appointed counsel afforded by
Miranda aside, the Tullys may invoke their Fifth
Amendment privileges against self-incrimination. The Advisory
Committee note to Rule 6 of the Rules Governing Section 2254
Cases in the United States District Courts specifically
contemplates that a petitioner being deposed may invoke the
Fifth Amendment. There is no reason why the Tullys cannot do
the same. However, unlike Miranda, when
interrogation must cease if the person invokes his right to
remain silent, the deposition need not cease if the Tullys
invoke the Fifth Amendment not to answer a question.
Miranda aside, the Tullys do have the right to bring
counsel to the depositions. Regarding whether one of them
might wish to have counsel but otherwise is unable to afford
counsel, the court will not speculate now.
does not object to placing in either the notices of
deposition or deposition subpoenas statements informing the
Tullys of their rights to bring an attorney to their
depositions and their rights to invoke the Fifth Amendment in
response to potentially incriminating questions. The Court
directs Petitioner to do so.
Court denies the motion for clarification because, other than
directing Petitioner to put the above statements in their
notices or subpoenas, the ...