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May 3, 2005.

BASHE ABDI YOUSUF, et al., Plaintiffs,

The opinion of the court was delivered by: REGGIE B. WALTON, District Judge


This matter stems from a case currently pending in the United States District Court for the Eastern District of Virginia ("Eastern District").*fn1 The plaintiffs seek to compel the United States Department of State ("State Department")*fn2 to comply with a subpoena for documents issued pursuant to Federal Rule of Civil Procedure 45. Plaintiffs' Motion to Compel Compliance With A Rule 45 Subpoena ("Pls.' Mot.) at 1. Currently before the Court are (1) the plaintiffs' Memorandum in Support of Plaintiffs' Motion to Compel Compliance With A Rule 45 Subpoena ("Pls.' Mem."); (2) the defendant's Memorandum in Opposition to Motion to Compel Compliance With A Rule 45 Subpoena ("State Dept.'s Mem."); and (3) the plaintiffs' Reply Memorandum in Support of Motion to Compel Compliance With A Rule 45 Subpoena ("Pls.' Reply"). For the following reasons, this Court denies the plaintiffs' motion to compel. I. Background

The plaintiffs filed a complaint in the United States District Court for the Eastern District of Virginia asserting claims under the Torture Victim Protection and Alien Tort Claims Acts, 28 U.S.C. § 1350 (respectively "TVPA" and "ATCA"), Pls.' Mem. at 1, and alleging that the defendant, Mohamed Ali Samantar, is responsible for acts of torture, murders, war crimes and other crimes against humanity that occurred while Samantar occupied several "high-ranking" positions "in the notorious regime headed by Somalia's President Mohamed Siad Barre" during the 1980s.*fn3 Id. at 2. According to the plainitffs, Samantar was or should have been aware of the alleged atrocities. Id.

  Shortly after discovery in the underlying case commenced, plaintiffs' counsel sent the State Department a request for documents pursuant to its regulation promulgated in accordance with United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951).*fn4 In addition, the plaintiffs also served the State Department with a subpoena for documents pursuant to Rule 45. See Pls.' Mem., Ex. B. Both seek to obtain an array of documents separated into three categories, namely, (1) documents relating to human rights abuses committed by the Somali Armed Forces or security services in the 1980s, (2) documents associated with the formal structure and organization of the Somali government, political system and military, as well as (3) documents related to United States interaction with representatives of the Siad Barre regime. Id. Thereafter, on March 10, 2005, the plaintiffs filed the motion to compel that is subject of this opinion, alleging that the State Department has "declined to assert any timely objections to the subpoena, but has yet to produce a single document in response, or to commit to a timetable for producing responsive documents." Pls.' Mot. at 1.

  II. Standard of Review

  In general, parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . [or which] appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). "Discovery may be obtained from non-parties pursuant to Rule 45, but that non-party can move to quash a subpoena by demonstrating that the subpoena `requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects [the non-party] to undue burden.'" In re Providian Fin. Corp. Sec. Litig., 222 F.R.D. 22, 25 (D.D.C. 2004) (quoting Fed.R.Civ.P. 45(c)(3)). In addition, Rule 45 provides that if an objection to the production of material sought pursuant to the subpoena is made, "the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production." Fed.R.Civ.P. 45(c)(2)(B). However, "such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded." Id.

  When the government is a party to litigation, it is without a doubt subject to the discovery rules of the Federal Rules of Civil Procedure. See United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958) ("The Government as a litigant is, of course, subject to the rules of discovery."). However, when discovery is sought from the government as a third-party, for example by way of a subpoena pursuant to Rule 45, the federal courts have not been consistent in their application of the rules of discovery. See Linder v. Calero-Portocarrero, 251 F.3d 178, 181-82 (D.C. Cir. 2001) (contrasting the broad approach the Ninth Circuit has taken with respect to applying the federal discovery rules to the government with the more restrictive approach of the Second and Fourth Circuits). In this Circuit, "past decisions have assumed that `person' in Rule 45 included the federal government, [but the District of Columbia Circuit has] never expressly so held," and it has expressed the possible need to review this assumption in light of recent decisions. Id. at 181 (emphasis added).

  III. The Parties' Arguments

  A. Plaintiffs' Arguments

  The plaintiffs posit that the State Department is not immune from a subpoena properly issued pursuant to Rule 45. Pls.' Mem. at 4. The plaintiffs' claim that the State Department has expressed its position to the contrary believing that it is not considered a "person" as this term is used in Rule 45. According to the plaintiffs, the State Department "seems to have reached this new position by an unsupported extension of Al-Fayed v. CIA, 229 F.3d 272, 275-77 (D.C. Cir. 2000)." Id. However, the plaintiffs opine that the District of Columbia Circuit's holding in Al-Fayed is specifically limited to the interpretation of the word "person" as used in 28 U.S.C. § 1782 (2004).*fn5 Moreover, the plaintiffs advance two reasons for their argument that Al-Fayed does not apply to subpoenas issued pursuant to Rule 45. First, they claim that "by its terms the Dictionary Act, [1 U.S.C. § 1,] upon which the Al-Fayed court based its ruling, only applies to acts of Congress, not the Federal Rules of Civil Procedure." Pls.' Mem. at 5. Furthermore, the plaintiffs contend that "even if the Dictionary Act were to apply to the Rule, the definition in that Act must give way to a more reasonable meaning if `the context indicates otherwise.'" Id. In addition, the plaintiffs posit that Rule 30(b)(6) mandates the conclusion that the State Department cannot avoid a Rule 45 subpoena. Id. Finally, the plaintiffs contend that the implications arising from the decision in Touhy do not "supplant the federal subpoena power," and therefore, "the State Department is not immune from the federal court third-party discovery process, [and] it must comply with subpoenas that satisfy Rule 45."*fn6 Id. at 7.

  B. State Department's Arguments

  The State Department maintains that "a subpoena issued pursuant to Rule 45 may not be used to seek discovery from an agency of the Federal Government because the term `person' as used in that Rule is ordinarily, and presumptively, construed not to include the sovereign." State Dept.'s Mem. at 2 (citing Al Fayed, 229 F.3d at 276-77; Linder, 251 F.3d at 181-82). To further support its argument, the State Department cites to an unreported decision issued by a member of this Court, Lerner v. District of Columbia, Civil Action No. 00-1590, Memorandum Opinion (D.D.C. January 5, 2005) (Kessler, J.), which held that the decision in Al Fayed "compels the conclusion that the term `person' in Rule 45 does not include the federal government." Id. at 9-10.

  In addition, the State Department contends that the plaintiffs' argument that the Dictionary Act is not applicable to the Federal Rules of Civil Procedure is meritless because Al-Fayed did not base its decision "solely on the Dictionary Act, but rather `more generally' on the `longstanding interpretive presumption that `person' does not include the sovereign." Id. at 3. Moreover, the State Department alleges that part of the holding in Linder, specifically that "federal agencies cannot . . . claim sovereign immunity to avoid compliance with third-party subpoenas," 251 F.3d at 180, "has no bearing on the argument made here," because "[t]he [State] Department does not argue that sovereign immunity renders it immune from service of a federal court subpoena, but rather that ordinary principles of statutory construction should be applied to reach the conclusion that Rule 45 does not apply to the federal government." State Dept.'s Mem. at 3-4.

  Additionally, the State Department argues that the plaintiffs failed to adhere to the agency's procedures as prescribed by 22 C.F.R. § 172 (the Touhy regulation), because the plaintiffs judicially challenged the actions of the State Department in response to their Touhy request before the agency issued a final decision pursuant to its regulations. State Dept.'s Mem. ...

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