THOMAS B. SMITH, Magistrate Judge.
This matter comes before the Court on the United States' Ex Parte Motion to Commence Limited Early Discovery. (Doc. 3). In the motion, the United States asks the Court's permission to serve a subpoena on the Orlando Police Department ("OPD") commanding the production of documents OPD seized when executing one or more search warrants in carrying out its own investigation of Defendant. (
Rule 26(d)(1) of the Federal Rules of Civil Procedure prohibits parties from seeking discovery prior to an initial Rule 26(f) conference "except in a proceeding exempted form initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order." A court will order expedited discovery pursuant to Rule 26(d)(1) only upon a showing of "good cause."
Here, the government maintains that OPD has custody of evidence including "customer files, tax returns, financial documents, training materials, and scripts" which are "relevant and vital" to the government's case. (Doc. 3 at 3). While OPD has allowed the government to view the evidence on site, it has not allowed the government to remove the evidence. (
The Court finds that the government has shown good cause for the requested early discovery. Much of the evidence in OPD's custody is related to Defendant's tax preparation business, which is the subject of this lawsuit. If the government is not able to obtain this evidence from OPD, it may be destroyed, either by OPD, Defendant or unknown third parties to whom OPD may return the evidence.
The Court will not, however, allow the government to take this discovery ex parte. Rule 45(a)(4) requires that a subpoena must be served on each party before it is served on the person to whom it is directed.
Therefore, it is hereby
1. The United States' Ex Parte Motion to Commence Limited Early Discovery (Doc. 3) is
2. The United States may serve a subpoena on the Orlando Police Department requesting production of documents that OPD seized in its investigation of Defendant. The United States shall serve the subpoena and a copy of this order on Defendant prior to serving it on OPD.
3. The United States may accept documents responsive to the subpoena from OPD, but it shall not examine or use the documents until the earlier of:
a. Written agreement between the parties that the documents are discoverable;
b. In the absence of objection by Defendant, 14 days after service of a copy of the subpoena on Defendant; or
c. By order of the Court.