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Berner v. Eggemeyer

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 23, 2008

SUSAN BERNER, ADMINISTRATOR OF THE ESTATE OF DAVID P. SEYMOUR, DECEASED, PLAINTIFF,
v.
CARL EGGEMEYER AND JASON SCHLESINGER, DEFENDANT.

The opinion of the court was delivered by: Clifford J. Proud U. S. Magistrate Judge

ORDER

Before the Court is plaintiff's "Motion for Examination of Evidence." (Doc. 21). Plaintiff specifically requests a 2" x 2" cross-section of the plastic wrap currently in the possession of the Illinois State Police in connection with the death of David P. Seymour, so that the plastic can be tested by plaintiff's experts. The plastic at issue is currently in the Illinois State Police's Central Vault in Springfield, Illinois. Plaintiff indicates the Illinois State Police require a court order before releasing any evidence. No objection to the subject motion has been filed and, according to plaintiff, all parties have already generally inspected the evidence in possession of the Illinois State Police.

Federal Rule of Civil Procedure 34(c) permits third parties to be compelled to produce things for inspection and testing through the issuance of a subpoena in accordance with Federal Rule of Civil Procedure 45. Rule 45(a)(2)(C) provides that such a subpoena issue from the district where the production is to be made. In this instance, it appears that production would be made in the Central District of Illinois, which encompasses Springfield, Illinois. There is no indication that a subpoena has been issued to the Illinois State Police. In the absence of the issuance of a subpoena, the Court has no way of knowing in advance whether production of the requested piece of plastic would interfere with any ongoing criminal case or investigation, or whether the State Police have any objection to the request for production.

IT IS THEREFORE ORDERED that the subject motion for production, examination and testing of a 2" x 2" cross-section of the plastic wrap currently in the possession of the Illinois State Police in connection with the death of David P. Seymour (Doc. 21) is DENIED. Plaintiff must comply with the procedures set forth in Federal Rules of Civil Procedure 34(c) and 45(a)(2)(C).

IT IS SO ORDERED.

20081023

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