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.
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
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.
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. ...