Subpoena-thon: Where Do I File a Motion to Quash a Subpoena?

If your client is randomly subpoenaed to produce records or give a deposition and wants to object, where is the resulting motion decided?  Taddeo v. Am. Invsco Corp. addressed this issue in the context of a Nevada case where the plaintiff was conducting post-judgment discovery for some reason and sought to depose a defendant in Chicago who had obtained a directed verdict.[1]  A dispute relating to the deposition arose and the question of which court had jurisdiction to rule on the dispute was key.

The Nevada court stated Rule 45(d)(3)(a) requires that when “a non-party seeks to quash a subpoena, such a motion must be filed with the court for the district where compliance is required.”  If the motion to quash is filed in any other court, “that court lacks jurisdiction to resolve the motion.”  However, if a party to the lawsuit seeks a protective order, Rule 26(c)(1) applies and the party “is permitted to seek a protective order in either the court where the action is pending or in the court for the district where the deposition will be taken.”

Is a defendant who obtained a directed verdict a party or non-party?  In the Ninth Circuit a defaulted defendant is a non-party for discovery purpose because a party in default loses many of the rights it would have had if it appeared.[2]  Other courts had “similarly ruled that prevailing former defendants should be treated as non-parties for discovery purposes subject to the requirements outlined in Rule 45.”  Applied here, the defendant had prevailed and was considered a non-party for discovery purposes, meaning any dispute about his deposition subpoena would need to be addressed in Chicago.

A similar problem arose in Stericycle, Inc. v. Patriot Envtl. Servs.[3]  The motion to compel compliance was filed in the District of Nevada, however the subpoena commanded compliance in the Northern District of Illinois.  Consequently, the Nevada court lacked jurisdiction to consider the motion.

[1] No. 2:12-cv-1110, 2016 U.S. Dist. LEXIS 17697, 2016 WL 593522 (D. Nev. Feb. 11, 2016).
[2] Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1159 (9th Cir. 2010).
[3] 2:16-cv-1861, 2016 U.S. Dist. LEXIS 113957 (D. Nev. Aug. 25, 2016).

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