United States District Court, District of Columbia
MEMORANDUM AND ORDER
BERYL A. HOWELL, District Judge.
The parties in this matter have engaged in a flurry of motion practice over the validity of, and compliance with, three virtually identical subpoenas issued by the United States District Court for the District of Arizona in connection with the pending consolidated case of Valle del Sol, et al. v. Whiting et al., Case No. 10-cv-01061-PHX-SRB (D. Ariz. filed May 17, 2010) ("Arizona Case"), which involves a constitutional challenge to Arizona Senate Bill 1070 ("S.B. 1070"), a controversial state immigration initiative. The plaintiffs in the Arizona Case have served subpoenas on a number of non-parties, including the Petitioner, Judicial Watch, for documents relating to the non-parties' alleged involvement "in the drafting and passage of the law." Resp'ts'/Cross-Pet'rs' Mot. to Compel Judicial Watch's Compliance with Subpoena Duces Tecum at 1, ECF No. 8-2; see Resp'ts'/Cross-Pet'rs' Mem. Supp. Mot. to Transfer Judicial Watch's Mot. to Quash ("Resp'ts' Transfer Mem."), at 1 ECF No. 7. Pending before the Court are four motions, two filed by the Petitioner and two filed by the Respondents, who are the plaintiffs in the Arizona Case. For the reasons set out below, three of the motions are denied as moot and the last motion, which was most recently filed by the Petitioner, is transferred to the court presiding over the Arizona Case.
A brief summary of the procedural background provides helpful context to understand the Court's resolution of the pending motions. The Respondents have served three subpoenas on the Petitioner. The Petitioner produced approximately 44 documents in response to the first subpoena, served on January 8, 2014 ("January Subpoena"), but withheld 103 documents on attorney-client and attorney work product privilege grounds because some of the withheld documents apparently include communications with an Arizona legislator. Resp'ts'/Cross-Pet'rs' Transfer Mot., Ex. F, Decl. of Justin B. Cox ("Cox Decl.") ¶¶ 8-9, ECF No. 8-4; Pet'r's Mot. to Quash and/or for Protective Order (Pet'r's Mot. Quash Aug. Subpoena") ¶ 3, ECF No. 24 (noting that Petitioner has "produced 282 pages of responsive documents to plaintiffs" and is withholding an unspecified number "under the attorney-client privilege and attorney work product doctrine"). Ultimately, the Petitioner declined to produce additional documents, contending that the January Subpoena "was unenforceable because it initially requested that documents be sent more than 100 miles from its place of business in Washington, D.C." Resp'ts' Transfer Mem. at 4. The Respondents addressed the purported deficiency in the January Subpoena identified by the Petitioner and served a second subpoena on May 7, 2014 ("May Subpoena"), which requested production of documents reflecting "communications between Judicial Watch and ARIZONA STATE OFFICIALS' (a defined term)" and provided a place of production in Washington, D.C. Id.
Shortly thereafter, the Petitioner initiated this suit by moving to quash the May Subpoena on the ground of invalid service. Pet'r's/Cross-Resp't's Mot. to Quash May Subpoena, at 3, ECF No. 1. The Respondents filed a cross-motion to compel compliance with both the January and May Subpoenas, Resp'ts'/Cross-Pet'rs' Mot. to Compel, ECF No. 7, and to transfer both the motion to quash and the cross-motion to compel to the District of Arizona, Resp'ts'/Cross-Pet'rs' Mot. to Transfer, ECF No. 8. The Petitioner opposed transfer of these motions, Pet'r's/Cross-Resp't's Opp'n to Mot. to Transfer, ECF No. 15, and also moved to stay consideration of the merits of the Respondents' motion to compel compliance with the January and May Subpoenas until the Court had resolved "whether it has jurisdiction to adjudicate the validity of the [May] subpoena and whether the January Subpoena can be enforced, " Pet'r's/Cross-Resp't's Mot. Stay, at 2, ECF No. 13.
After briefing on those cascading motions was underway, the Respondents withdrew the May Subpoena. See Resp'ts'/Cross-Pet'rs' Notice of Withdrawal of May Subpoena Duces Tecum, ECF No. 19. While this step might have crystalized the issues before the Court and focused on the challenges to the January Subpoena, the Respondents instead served, on August 4, 2014, a third subpoena on the Petitioner ("August Subpoena"). This action prompted the Petitioner to file a motion to quash the August Subpoena. Pet'r's Mot. to Quash Aug. Subpoena, at 1. The Respondents concede that the August Subpoena is virtually identical to both the January and May Subpoenas. See Resp'ts'/Cross-Pet'rs' Resp. to Order to Show Cause at 5, ECF No. 26 ("The May and August subpoenas are identical in all respects"); Resp'ts'/Cross-Pet'rs' Opp'n to Pet'r's/Cross-Resp't's Mot. to Quash and/or for Protective Order ("Resp'ts' Opp'n to Pet'r's Mot. to Quash August Subpoena"), at 11, ECF No. 28 ("the August Subpoena is substantively identical to the January Subpoena, as modified in the meet and confer process"); id. at 6 ("The August Subpoena is essentially identical to the May Subpoena and January Subpoena, except this time Plaintiffs included the reasonable accommodation language in the text of the August Subpoena itself"); Pet'r's Mot. to Quash Aug. Subpoena, ¶ 2 (noting that August Subpoena is "identical to the prior subpoena duces tecum served on Judicial Watch in January 2014").
In light of the withdrawal of the May Subpoena, which had been the principal focus of the prior motion practice, and the issuance of the virtually identical August Subpoena, which superseded the prior subpoenas, the Court issued an Order to Show Cause directing the parties to explain, among other things, inter alia, (1) "Why both Respondents-Cross Petitioners' Motion to Compel Compliance with Subpoena Duces Tecum (Doc. No. 7) and Motion to Transfer its Motion (Doc. No. 8), and Petitioner-Cross Respondent's Motion to Stay Respondents-Cross Petitiners' Motion (Doc. No. 13), should not all be denied as moot" and (2) "Why Petitioner-Cross Respondent's Motion to Quash and/or for Protective Order (Doc. No. 24), which is directed at the August 4, 2014 Subpoena Duces Tecum, should not be transferred to the District of Arizona, pursuant to Federal Rule of Civil Procedure 45(f)." The parties' responses to the Order to Show Cause have informed the Court's consideration of the pending motions.
In sum, pending before the Court are the following four motions: (1) the Respondents' Motion to Compel the Petitioner's compliance with the January Subpoena, ECF No. 7; (2) the Respondents' Motion to Transfer, ECF No. 8, which seeks to transfer only the Petitioner's Motion to Quash the May Subpoena, ECF No. 1, and the Respondents' Motion to Compel compliance with the January Subpoena, ECF No. 7; (3) the Petitioner's Motion for a Stay, ECF No. 13, which requests that the Court address the validity of the January and May subpoenas before requiring a response on the adequacy of the Petitioner's subpoena response; and (4) the Petitioner's Motion to Quash the August Subpoena and/or for a Protective Order, ECF No. 24. These motions are addressed in short order, with the last motion transferred, pursuant to Federal Rule of Civil Procedure 45(f), to the issuing court presiding over the Arizona Case for resolution, and the remaining three motions denied as moot.
Federal Rule of Civil Procedure 45(f) is a new subsection added in 2013 authorizing transfer of subpoena-related motions by "the court where compliance is required" to the "issuing court, " either when the person subject to the subpoena consents or "if the court finds exceptional circumstances." The Rules do not define "exceptional circumstances" but the Advisory Committee Note accompanying the amendment provides guidance on application of this new subsection. Specifically, the authority to transfer subpoena-related motions under Rule 45(f) broadly applies to "all motions under this rule, " including motions "for a privilege determination." FED. R. CIV. P. 45(f) advisory committee's note (2013 amendments). While a "prime concern" is to "avoid burdens on local nonparties subject to subpoenas, " this "interest of the nonparty... 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. Id. Thus, as the Advisory Committee Note explains, "transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts." Id.
In this case, the Petitioner's pending Motion to Quash the August Subpoena and/or for a Protective Order, ECF No. 24, should be transferred to the United States District Court for the District of Arizona to avoid "disrupting the issuing court's management of the underlying litigation." FED. R. CIV. P. 45(f) advisory committee's note (2013 amendments). In evaluating whether "exceptional circumstances" are present warranting transfer, the Court must not "assume that the issuing court is in a superior position to resolve subpoena-related motions, " id., but instead consider a number of factors relating to the underlying litigation. These factors include the complexity, procedural posture, duration of pendency, and the nature of the issues pending before, or already resolved by, the issuing court in the underlying litigation. See, e.g., XY, LLC v. Trans Ova Genetics, L.C., 2014 U.S. Dist. LEXIS 126258, at *4-5 (D.D.C. Sept. 10, 2014) (finding exceptional circumstances where issuing court "has already supervised substantial discovery and begun preparations for trial"); Wultz v. Bank of China, Ltd., 2014 U.S. Dist. LEXIS 73534, 27, 29 n.6 (D.D.C. May 30, 2014) (transferring subpoena-related motions in "highly complex" litigation where issuing court "is in better position to rule... due to her familiarity with the full scope of issues involved as well as any implications the resolution of the motion will have on the underlying litigation" and to further "the interest in obtaining consistent rulings on the issues presented"). In addition, the Court should consider whether requiring the local nonparty to litigate subpoena-related motions in the issuing court would present an undue burden or cost. See, e.g., Trans Ova Genetics, L.C., 2014 U.S. Dist. LEXIS 126258, at *6 (transferring subpoena-related motion where local party was national corporation "and thus the presumption of local resolution, carried less force") (citing In re Subpoena to Kia Motors Am., Inc., No. SACV 14-315 JLS (RNBx), 2014 U.S. Dist. LEXIS 72827, at *1 (C.D. Cal. Mar. 6, 2014)).
Consideration of these factors militates strongly in favor of transfer of the Petitioner's Motion to Quash the August Subpoena. First, the burden on the Petitioner to litigate this matter in Arizona is minimal. The August Subpoena mitigates the burden on Petitioner by providing that electronic production of responsive documents is acceptable and that Petitioner may simply incorporate by reference all previous objections and responses. Resp'ts' Opp'n to Pet'r's Mot. to Quash August Subpoena at 10. Moreover, by the Petitioner's own admission, "Judicial Watch litigates a great many public records lawsuits across the country." Pet'r's/Cross-Resp't's Mot. to Quash Aug. Subpoena at ¶ 10. Given the Petitioner's national reach and familiarity with litigation in courts outside this jurisdiction, the general interest in protecting local nonparties by requiring local resolution of subpoena-related disputes is significantly reduced.
Second, the Arizona Case has been pending for four years and has involved "innumerable discovery disputes (including several involving clients of Judicial Watch)." Resp'ts' Resp. OTSC at 6. The issuing court is therefore in a far better position than this one to evaluate the relevance of, and necessity for, the documents demanded in the August Subpoena. Moreover, the Petitioner has raised the extraordinary claim that it has been targeted by "these abusive litigation tactics" in the form of "serially defective subpoenas" because the Respondents' "attorneys quite plainly loathe Judicial Watch" and the subpoenas "are nothing more than harassment of a despised, perceived adversary, if not retaliation for protected, public interest advocacy that they and their counsel misunderstand and mischaracterize." Pet'r's Mot. to Quash Aug. Subpoena at ¶¶ 10-11. As the Respondents explain, the Arizona court, which has had four years to observe the Respondents' conduct in the underlying litigation, "is in the best position to evaluate Judicial Watch's argument that the Plaintiffs' August Subpoena was served for the improper purpose of attempting to harass Judicial Watch because of its political views and/or activism, rather than based on a genuine desire to gather evidence relevant to their remaining claims in the underlying litigation." Resp'ts' Resp. OTSC at 6.
More significantly, the conclusion that transfer is warranted in this case is bolstered by the grounds put forward by the Petitioner in support of its Motion to Quash the August Subpoena and relieve this nonparty from any obligation to comply further with the Respondents' document demands. Specifically, the Petitioner contends that "[t]here is nothing to enforce" because it has "already produced all of the responsive documents it was able to locate after conducting a reasonable search - some 282 pages of materials - that are not protected by the attorney-client privilege or the attorney work product doctrine." Pet'r's Mot. to Quash Aug. Subpoena at ¶ 9. Essentially then, ...