Subpoena-thon: Transferring a Motion to Quash a Subpoena

Last Thursday’s post gave an indication of where a motion to quash a subpoena should be filed.  There is a catch.  Rule 45(f) permits the enforcing court to transfer the motion to the issuing court.  “When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.”  Two local orders have addressed this rule.

Obesity Research Inst., LLC v. Fiber Research Int’l, LLC was a case from the United States District Court for the District of Southern California where a deposition subpoena served in Las Vegas also commanding a person to appear for deposition in Las Vegas.[1]  The person then failed to appear and a non-appearance was taken.  A motion resulted and the party that served the subpoena asked that the local district (D. Nev.) either enforce the subpoena or transfer the motion for to compel to the issuing district (S.D. Cal.).

“Whether ‘exceptional circumstances’ exist for a transfer turns on the particular facts of each case.  The court considering the transfer motion should not assume that the issuing court is in a better position to resolve subpoena-related motions.”  Whoever requests the Rule 45(f) transfer has the burden to demonstrate exceptional circumstances.

When is a transfer appropriate?  “Although a prime concern is to avoid burdens on local nonparties subject to subpoenas, the nonparty’s interest in obtaining local resolution of the motion must be balanced with the interests in ensuring the efficient, fair and orderly progress of ongoing litigation before the issuing court.”

Rule 45 itself does not expound on what constitutes “exceptional circumstances;” however, the Advisory Committee Notes state that “transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation, as when the court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts,” so long as those interests outweigh the interests of the subpoenaed party in obtaining local resolution of the motion.  The Advisory Committee Notes do not provide an exhaustive list of all circumstances in which transfer is appropriate under Rule 45(f), but instead formulate a balancing test. On one hand, the court considers the burden on the party responding to the subpoena in the event of a transfer, and on the other hand, the court considers factors such as judicial economy, docket management, and the risk of inconsistent rulings.

Magistrate Judge Leen concluded exceptional circumstances were demonstrated on the facts of the case and subpoena.

Argento v. Sylvania Lighting Servs. Corp. concerned a lawsuit pending in the District of Arizona that had generated a subpoena for documents served in Nevada upon the Clark County School District.[2]  The Arizona court had previously quashed a version of this subpoena, and a motion was made to transfer enforcement of the second subpoena to Arizona.  Exceptional circumstances were present that warranted transfer.  “The issuing court has already reviewed the subpoena now in dispute here in resolving Defendant’s motion to quash.  In doing so, the issuing court has also already ruled on the scope of relevant documents for which production is required under the subpoena.”  This generally outweighed other objections to transferring.

[1] No. 2:16-cv-61, 2016 U.S. Dist. LEXIS 17990 (D. Nev. Feb. 11, 2016).
[2] No. 2:15-cv-1277, 2015 U.S. Dist. LEXIS 108818, 2015 WL 4918065 (D. Nev. Aug. 18, 2015).