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United States District Court, District of Columbia

April 4, 2003


The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge


The two subpoenas before the Court were issued in connection with the multidistrict litigation ("MDL") against Tyco currently pending before Chief Judge Paul Barbadoro in the District of New Hampshire. In that MDL proceeding, over 30 separate actions have been consolidated into three class actions. In re Tyco Int'l, Ltd Securities Litigation, MDL No. 02-1335. During the week of February 24, 2003, after Chief Judge Barbadoro ruled that document discovery should proceed in two of these class actions, Tyco's former general counsel Mark Belnick served subpoenas on two of Tyco's law firms, Goodwin, Procter LLP and Wilmer, Cutler & Pickering ("the law firms"), as well as a Request for Documents on Tyco. In these subpoenas, Belnick is seeking documents relating to the firms' representation of Tyco, which he believes will be relevant in both the MDL litigation as well as in a civil suit filed by Tyco against Belnick in the Southern District of New York. Tyco v. Belnick, Civ. Act. No 02-4644 (S.D.N.Y. June 12, 2002). The law firms have now moved to quash the subpoenas.*fn1

Ruling on the present motion requires the Court to confront an apparent conflict between FED. R. CIV. P. 45, which governs the issuance and enforcement of subpoenas, and 28 U.S.C. § 1407, which governs multidistrict litigation. Under Rule 45(a)(2), subpoenas such as these, which are for the production and inspection of documents separate from a subpoena commanding the attendance of a person, "shall issue from the court for the district in which the production or inspection is to be made." That district is the District of Columbia, and it was accordingly, from this Court that these subpoenas issued. In turn, Rule 45(c)(3)(A) suggests that the court with the power to quash or modify a subpoena is the "court by which a subpoena was issued." As such, the text of the rule "suggests that only the issuing court has the power to act on its subpoenas," and gives no hint that "any other court may be given the power to quash or enforce them." In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1991) (holding that a district court has no authority to transfer a Rule 45(c) motion to the district in which the underlying litigation is pending).*fn2

This does not mean, however, that the Court is obliged to rule on the merits of the law firms' motion. For, in contrast to the Sealed Case, the motion to quash at issue here relates directly to a set of proceedings that have been consolidated for pretrial purposes by the judicial panel on multidistrict litigation. And under § 1407(b), pretrial proceedings in MDL cases "shall be conducted by a judge or judges to whom such actions are assigned." That judge, moreover, "may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings." The reason for this is plain: consolidation of pretrial matter allows "one judge to take control of complex proceedings, the better to avoid unnecessary duplication in discovery." In re Orthopedic Bone Screw Prods. Liability Litigation, 79 F.3d 46, 48 (7th Cir. 1996).

It follows therefore that, with respect to the subpoenas at issue here, Chief Judge Barbadoro has all the powers of a federal district judge in the District of Columbia, including the power to quash. See United States ex rel. Pogue v. Diabetes Treatments Ctrs. of Am., Inc., 238 F. Supp.2d 270, 274-75 (D.D.C. 2002) (holding that the grant of authority in § 1407 extends to the enforcement of subpoenas duces tecum, even those not issued pursuant to a deposition notice); Orthopedic Bone Screw, 79 F.3d at 48; In re Disposable Contacts Lens Antitrust Litigation, 1998 WL 219773, at *1 (April 21, 1998); see also In re Corrugated Container Antitrust Litigation, 662 F.2d 875, 880-81 (D.C. Cir. 1981) ("[T]he multidistrict judge is granted the same powers as a judge of those courts where the depositions are being taken.").

As such, under § 1407, the authority to rule on the instant motion lies with Chief Judge Barbadoro, rather than with this Court. This dissolves the Rule 45 problem highlighted in the Sealed Case, because in this context, the court in charge of the consolidated proceedings (here, the District of New Hampshire) effectively operates as a "court of the district in which the production or inspection is to be made." Accordingly, it is entirely appropriate for this Court to remit this matter to Chief Judge Barbadoro for resolution. The Court will therefore abstain from ruling on the motion to quash, and will defer to Chief Judge Barbadoro's ultimate decision on the merits. This was the procedure endorsed by the Seventh Circuit in Orthopedic Bone Screw, 79 F.3d at 48-49, and is similar to the approach used by Judge Chin with respect to the Boies, Schiller subpoena.*fn3 Deferring to Chief Judge Barbadoro, who is already familiar with this massive litigation and who has consented to such a remittance, serves the interests of justice, efficiency, and consistency that underlie the MDL rules. And doing so is neither inconsistent with Rule 45 nor the Sealed Case. See 141 F.3d at 342-43 ("The rules may well allow . . . abstention on a motion to quash, followed by deference to the trial court's decision on a motion for a protective order."). For the reasons, the Court will stay the motion to quash pending resolution of that motion by Chief Judge Barbadoro.


For the reasons given in the attached Memorandum Opinion, it is hereby

ORDERED that the motion to quash the subpoenas duces tecum is remitted to Judge Paul Barbadoro, Chief Judge of the United States District Court for the District of New Hampshire; and it is

FURTHER ORDERED that the motion is STAYED pending resolution by Chief Judge Barbadoro, and the Clerk's Office is directed to administratively close the above-captioned action.


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