On December 28, 2007, the plaintiffs in two civil suits pending in different jurisdictions, Rhodes v. E.I. Dupont Demours & Co., Civil Action Case No. 6:06-530 (S.D. W. Va.), and Rowe v. E.I. Dupont Demours & Co., Civil Action Case No. 06-1810-RMB-AMD (D.N.J.), filed a motion to compel John Adams Associates, Inc. ("John Adams") "to produce documents and electronically stored information responsive to subpoenas issued" by this Court relating to the Rhodes and Rowe cases pursuant to Federal Rule of Civil Procedure 45. Plaintiffs' Motion to Compel Production Pursuant to a Subpoena and Memorandum of Law in Support at 1. Thereafter, the plaintiffs filed a motion seeking to compel John Adams to remove its designation of certain produced documents as "confidential" within the meaning of separate protective orders entered in the Rhodes and Rowe cases, which designations were made pursuant to an agreement between the parties whereby John Adams agreed to produce certain documents subject to the Court's subpoena issued on the plaintiffs' behalf in exchange for the plaintiffs' agreement to extend the protections of those protective orders to John Adams. Plaintiffs' Motion to Compel Removal of Defendant's Confidentiality Designations on Certain Produced Documents (the "Pls.' Mot.") at 1-2 & n.1. John Adams opposed this request on the grounds that its designations were appropriate under the terms of the protective orders at issue and under Rule 45. John Adams Associates Inc.'s Opposition to the Plaintiffs' Motion to Compel Removal of Confidentiality Designations on Certain Produced Documents at 5-9.
After reviewing the parties' briefs, the Court entered an order on April 30, 2008 (the "April 30 Order") in which it directed the parties to file supplemental memoranda of law regarding whether the Court, under Rule 45, has the authority to adjudicate their dispute over the propriety of John Adams's confidentiality designations. April 30 Order at 4. As the Court explained in that order:
With respect to the plaintiffs' second motion to compel, both the plaintiffs and John Adams assume that it is within the scope of the Court's authority under Rule 45 to adjudicate their dispute over the propriety of John Adams's confidentiality designations. The Court harbors serious doubts on this point. Rule 45 provides in pertinent part that "[a]t any time, . . . the [party serving a subpoena] may move the issuing court for an order compelling production or inspection." Fed. R. Civ. P. 45(c)(2)(B)(I). However, in this case the party served with a subpoena (John Adams) has already produced the documents at issue. The plaintiffs' sole grievance is with the manner in which John Adams has interpreted the agreement between the parties that led to the voluntary production of that information. This strikes the Court as a contractual dispute, or, with respect to the Rowe case, a dispute over the terms of the protective order entered by the court in that case, but it does not appear to be a conflict over the "production or inspection" of documents subject to a subpoena issued by this Court. The Court is therefore inclined to deny the plaintiffs' second motion to compel, as it appears to contain a request for relief outside the authority conferred upon this Court by Rule 45.
Id. at 2-3 (footnotes omitted). The Court deferred its final ruling on the plaintiffs' motion only "because the Court ha[d] not yet had an opportunity to research the scope of its authority under Rule 45 in exhaustive detail" and "[b]ecause the Court . . . raised the issue sua sponte," and therefore had not received the benefit of any briefing from the parties on this issue. Id. at 3. Having now reviewed the parties' supplemental memoranda of law, and having researched the state of the law on this point to its satisfaction, the Court is convinced that its assessment of the situation in its April 30 Order was correct, and that the plaintiffs' motion should be denied.
Federal Rule of Civil Procedure 45 gives the court issuing a subpoena the power to compel the production of documents from the non-party subject to that subpoena. See In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998) ("Rule 34(c) explicitly makes the subpoena process of Rule 45 the route to compelling production of documents from nonparties."). The "language [of Rule 45] suggests that only the issuing court has the power to act on its subpoenas," and "nothing in the Rules even hints that any other court may be given the power to quash or enforce them." Id. However, to comply with Rule 45, a non-party need only produce documents required by the subpoena in the manner "they are kept in the ordinary course of business[,] or must organize and label them to correspond to the categories in the demand." Fed. R. Civ. P. 45(d)(1)(A).
The plaintiffs do not contend that the defendant failed to produce the demanded documents in the manner "kept in the ordinary course of business" or "organize[d] and label[ed] . . . to correspond to the categories in the demand." Instead, they seek to have the Court enforce the terms of an agreement between the plaintiffs and John Adams that led to the voluntary production of the documents. Although the plaintiffs dismiss this fact as "incidental," Supplemental Memorandum of Law In Support of Plaintiff[s'] Motion to Compel Removal of Defendant's Confidentiality Designations on Certain Produced Documents ("Pls.' Supp. Mem.") at 4, the lack of any reference to the designation of documents as "confidential" in the subpoena at issue forecloses any possibility of relief for the plaintiffs under Rule 45. The Court's authority to enforce the provisions of its subpoena, whether located in Rule 45 or inherent to the Court itself, is not implicated because there is no provision in the subpoena that requires enforcement.
The plaintiffs argue in the alternative that "[t]here is 'no provision in the Judicial Code or the Rules of Civil Procedure [that] allows a district judge to transfer a particular motion for decision elsewhere,'" id. at 6 (quoting In re Orthopedic Bone Screws Prod. Liability Litig., 79 F.3d 46, 48 (7th Cir. 1996)), and that as a consequence "'disputes over discovery from a non-party are decided by the court which issued the subpoena unless the non-party consents that the matter be resolved by a court in another district,'" id. at 7 (quoting In re Welding Rod Prod. Liability Litig., 406 F. Supp. 2d 1064, 1065 (N.D. Cal. 2005)). The Court agrees with both of these propositions, but finds neither of them applicable here. This is not a case in which a non-party resisting a subpoena seeks the entry of a protective order from the trial court rather than the court issuing the subpoena pursuant to Federal Rule of Civil Procedure 26(c); rather, the Rowe court has already entered a protective order that by all accounts covers the documents at issue here,*fn1 and the parties agreed on their own initiative to extend the protective order entered in the Rhodes case to those same documents.*fn2 Such orders "may only be enforced through a motion for sanctions under Federal Rule of Civil Procedure 37(b)," Westinghouse Elec. Co. v. Newman & Holtzinger, P.C., 992 F.2d 932, 935 (9th Cir. 1993), and that rule authorizes only "the court where the action is pending" to "issue further just orders." Fed. R. Civ. P. 37(b)(2)(A).*fn3
Nor does the Court intend to transfer or stay the plaintiffs' motion to compel. Actions of that sort are only necessary where there is an actual controversy within the Court's subject-matter jurisdiction to be resolved. John Adams has already produced the documents at issue in accordance with the Court's subpoena; thus, there is nothing left for the Court to do with respect to its subpoena. It has no choice but to deny the plaintiffs' motion as moot, just as it would deny as moot any motion to compel the production of documents that have already been produced in the manner demanded in a subpoena. See, e.g., Platypus Wear, Inc. v. K.D. Co., Inc., 905 F. Supp. 808, 810 (S.D. Cal. 1995) (holding that the parties' dispute as to which federal court should have issued subpoena was moot because subpoenaed witness was willing to testify).
Had the subpoena issued by this Court specified that John Adams should produce its documents in accordance with the guidelines set forth in the Rowe or Rhodes protective orders, or had John Adams requested the entry of a protective order governing its production, the parties' dispute might have fallen within the Court's jurisdiction. However, on the state of the record here, the plaintiffs' disagreement with John Adams concerns a pre-existent protective order entered by the Rowe court and a private understanding between the parties concerning another pre-existent protective order entered by the Rhodes court. It is to those courts that the plaintiffs should turn for the relief that they seek.*fn4 Their dispute with John Adams does not relate to the subpoena issued by this Court, and therefore does not concern it. The Court will therefore deny the plaintiffs' motion to compel as moot and close this miscellaneous proceeding.*fn5
SO ORDERED this 8th day of ...