United States District Court, District of Columbia
DEBORAH A. ROBINSON, Magistrate Judge.
Before the Court is Google Inc.'s ("Google") Rule 45(f) Motion to Transfer its Motions to Compel Document Production by Digital Citizens Alliance ("DCA"), Jenner & Block ("Jenner"), and Motion Picture Association of America ("MPAA") to the United States District Court for the Southern District of Mississippi where Google's underlying case is pending. Google Inc.'s Rule 45(f) Motion to Transfer (Doc. No. 9); see also Memorandum of the MPAA and Jenner & Block Opposing Petitioner Google Inc.'s Rule 45 Motion to Transfer ("MPAA and Jenner Opp'n") (Doc. No. 22); Non-Party Digital Citizens Alliance's Memorandum of Points and Authorities in Opposition to Google Inc.'s Rule 45(f) Motion to Transfer ("DCA Opp'n") (Doc. No. 23); Google Inc.'s Reply in Support of Rule 45(f) Motion to Transfer ("Pet'r's Reply") (Doc. No. 26); Notice of Supplemental Authority in Further Support of the Memorandum of MPAA and Jenner & Block Opposing Petitioner Google Inc.'s Rule 45 Motion to Transfer ("MPAA and Jenner Suppl. Auth.") (Doc. No. 28); Google Inc.'s Response to the MPAA and Jenner & Block's Notice of Supplemental Authority ("Pet'r's Resp.") (Doc. No. 29); Reply to Google's Response to the MPAA's and Jenner's Notice of Supplemental Authority (Doc. No. 30); Google's Response to the MPAA and Jenner's Further Statement in Support of Their Notice of Supplemental Authority (Doc. No. 31); Notice of Supplemental Authority in Further Support of Google Inc.'s Rule 45(f) Motion to Transfer (Doc. No. 32); Transcript of Motion Hearing ("Tr.") (Doc. No. 33); Notice of Supplemental Authority in Further Support of Google Inc.'s Rule 45(f) Motion to Transfer ("Pet'r's Suppl. Auth.") (Doc. No. 34).
Upon consideration of the motion, the oppositions and replies thereto, the arguments made at the motion hearing on July 8, 2015, and the notices of supplemental authority provided by the parties, the Court will grant Google's Motion to Transfer.
Google filed the underlying action against Mississippi Attorney General Jim Hood (AG Hood) in the United States District Court for the Southern District of Mississippi following a dispute with respect to the removal of certain online content. See Memorandum of Points and Authorities in Support of Google Inc.'s Rule 45(f) Motion to Transfer ("Pet'r's Mem.") (Doc. No. 9) at 2-3. Leading up to the suit, AG Hood had requested Google to remove objectionable content from its online services, and upon Google's refusal, later served Google with a seventy-nine-page Civil Investigative Demand ("CID"). Id. On March 2, 2015, the Honorable Henry T. Wingate, the United States District Judge to whom this action is assigned, issued a preliminary injunction blocking AG Hood from enforcing his CID against Google, finding significant evidence suggesting bad faith and retaliatory motives by AG Hood. Id. at 3. Judge Wingate currently has under advisement a motion to compel filed by Google involving certain documents also covered by the three subpoenas duces tecum at issue in the present case. Id. AG Hood is claiming work product and attorney-client privilege regarding certain subpoenaed documents. Id.
The instant matter concerns third-party subpoenas which Google served on DCA, Jenner, and MPAA seeking documents pertaining to the underlying action against AG Hood. Google alleges that MPAA, along with its attorneys at Jenner, lobbied AG Hood and directly assisted in preparing the CID served on Google. See Pet'r's Mem. 11. Google further alleges that DCA hired Mike Moore, a Mississippi lawyer, to work with AG Hood regarding actions against Google. See Pet'r's Reply 13.
On April 10, Judge Wingate issued an order clarifying the disputed discovery timeline for nonparties, but as of now, it does not appear that Respondents have actually furnished any of the subpoenaed documents. See Pet'r's Mem. 4. The Respondents have agreed to release their direct communications with AG Hood, but MPAA and Jenner are withholding those documents pending a ruling from Judge Wingate as to AG Hood's privilege claims regarding the same documents. See MPAA and Jenner Opp'n 2-3; Tr. at 32, 61-62. The Respondents claim that all other requested documents are irrelevant or privileged. See MPAA and Jenner Opp'n 2, 5; DCA Opp'n 6-7.
Federal Rule of Civil Procedure 45(f), amended in 2013, provides for the transfer of subpoena-related motions from the court where compliance is required to the court where the underlying action is pending where "the person subject to the subpoena consents or if the court finds exceptional circumstances." Fed.R.Civ.P. 45(f). While the rule does not explicitly define "exceptional circumstances, " the advisory committee notes state that a "prime concern" is to "avoid burdens on local nonparties subject to subpoenas." Fed.R.Civ.P. 45(f), Advisory Committee Notes (2013 Amendment). In some circumstances, 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 order to alleviate any burdens associated with transfer, the rule permits counsel admitted in the compliance court to "file papers and appear on the motion as an officer of the issuing court" and encourages the issuing court to allow telecommunication as needed. Id.
A. Exceptional Circumstances
Absent the consent of the parties, the Court must find exceptional circumstances in order to transfer the subpoena-related motions to the issuing court. See Fed.R.Civ.P. 45(f). When considering if exceptional circumstances are present, the Court must account for 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." Judicial Watch, Inc. v. Valle Del Sol, Inc., No. 14-mc-0538-(BAH), 2014 WL 4954368, at *3 (D.D.C. Oct. 3, 2014); see, e.g., Fed. Home Loan Mortg. Corp. v. Deloitte & Touche LLP, No. 15-mc-568 (RMC), 2015 WL 3413540, *3 (D.D.C. May 28, 2015) (finding transfer proper when a case demands a "nuanced legal analysis based on a full understanding of the [u]nderlying [a]ction, " not "a mere relevancy determination"); XY, LLC v. Trans Ova Genetics, L.C., No. 1:14-mc-00778 (CRC), 2014 WL 4437728 (D.D.C. Sept. 10, 2014) (transferring where the nonparty was intricately involved with a party to the underlying case and the need for relevance determinations outweighed the minimal burden on the nonparty); Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 46 (D.D.C. 2014) (finding the issuing court was "in a 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").
Courts have recognized that exceptional circumstances exist warranting transfer of subpoena-related motions "when transferring the matter is in the interests of judicial economy and avoiding inconsistent results.'" Wultz, 304 F.R.D. at 46 (internal citation omitted); see also Agincourt Gaming, LLC v. Zynga, Inc., No. 2:14-cv-0708-RFB-NJK, 2014 U.S. Dist. LEXIS 114348, at *17 (D. Nev. Aug. 15, 2014) (accounting for judicial economy, docket management, and the risk of inconsistent rulings in deciding to transfer motion); Fed. Deposit Ins. Co. v. Everest Reinsurance Holdings, Inc., 13 Misc. 381 (KPF), 2014 U.S. Dist. LEXIS 8506, at *5-7 (S.D.N.Y. Jan. 23, 2014) (concluding that judicial efficiency and comity were principal factors for transferring). But see Woods ex rel. U.S. v. SouthCare, Inc., 303 F.R.D. 405, 408 (N.D. Ala. 2014) (noting that the advisory committee notes do not explicitly cite judicial efficiency as a basis for transfer).
Upon full consideration of the factors outlined above, the Court finds exceptional circumstances exist warranting transfer of the subpoena-related motions. First, the potential of disrupting the management of the underlying case bolsters the argument for transfer. While the Respondents argue that transfer is not warranted because the Mississippi Court has not yet ruled on the exact contentions at issue in the motions to compel, "nothing in the Advisory Committee Note, or subsequent case law, precludes this Court from relying on other aspects of case management, such as impending discovery deadlines and case-specific issues, to transfer a subpoena-related motion." Deloitte, 2015 WL 3413540, *3. Discovery in the underlying case has been set at a "very rapid pace" and is ...