United States District Court, District of Columbia
In re Third Party Subpoena to Boris Malyugin, M.D. Ph.D.
VALEANT PHARMACEUTICALS INTERNATIONAL, INC. et al., Defendants. ICONLAB INC. et al., Plaintiffs,
N. McFADDEN UNITED STATES DISTRICT JUDGE.
Boris Malyugin, a Russian national, seeks to quash a
third-party subpoena served on him on April 15, 2018 noticing
a deposition and the production of documents for April 17,
2018. Mem. in Supp. of Emergency Mot. to Stay and Quash
Third-Party Subpoena (“Mot. to Quash”) 2, 8, ECF
No. 1-1. Because the subpoena was served two days prior to
the deposition, and compliance will require Dr. Malyugin to
travel more than 100 miles from where he resides, is
employed, or regularly transacts business in person, the
motion to quash is granted. See Fed. R. Civ. P.
45(d)(3)(A)(i)-(ii). This Order is issued without prejudice
for the parties seeking the testimony and evidence to
re-serve Dr. Malyugin with a subpoena in compliance with Rule
November 2016, Dr. Malyugin executed a declaration in the
ongoing matter of Iconlab Inc. et al. v. Valeant Pharms.
Int'l, Inc. et al., 8:16-cv-01321, in the United
States District Court for the Central District of California.
Defs.' Opp. to Mot. to Quash (“Defs.'
Opp”) Ex. 5, ECF No. 2-6. The Second Amended Complaint,
the operative Complaint, identifies Dr. Malyugin by name a
multitude of times and seems to incorporate the information
contained in Dr. Malyugin's declaration. See Id.
Ex. 4, ECF No. 2-5. Because of this, several defendants (the
“Defendants”) in the underlying litigation
sought, starting on March 22, 2018, to depose Dr. Malyugin
and sent him and the plaintiffs in the underlying litigation
a series of communications about his deposition. Defs.'
Opp. 6-7. Dr. Malyugin did not respond to these
communications. Id. Once the Defendants learned that
Dr. Malyugin was scheduled to be in the United States--more
specifically, in the District of Columbia--for the annual
meeting of the American Society of Cataract and Refractive
Surgery and the American Society of Ophthalmic Administrators
(to be held April 13, 2018 to April 17, 2018), the Defendants
executed and served Dr. Malyugin with a subpoena noticing his
deposition for April 17, 2018. Defs.' Opp. 7-8; Mot. to
45(d)(3)(A) requires a court to “quash or modify a
subpoena that (i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a
party's officer to travel more than 100 miles from where
that person resides, is employed, or regularly transacts
business in person [with one exception not relevant here];
(iii) requires disclosure of privileged or other protected
matter . . .; or (iv) subjects a person to undue
burden.” Subparts (i) and (ii) are relevant here. The
subpoena was served on Dr. Malyugin on April 15, 2018, two
days prior to the date of compliance. Two days' notice is
plainly unreasonable. See, e.g., Judicial Watch,
Inc. v. U.S. Dep't of Commerce, 34 F.Supp.2d 47,
49-50 (witness entitled to object to a subpoena served one or
two days before the scheduled deposition); Rules of the
United States District Court for the District of Columbia
Civil Rule 30.1 (“Service of a deposition seven days in
advance of the date set for taking the deposition shall
constitute ‘reasonable notice' to a party as
required by Fed.R.Civ.P. 30(b)”). Though the Defendants
made good faith efforts to seek discovery from Dr. Malyugin
through email and other communications as early as March 22,
2018, service was not made until April 15, 2018.
Unfortunately for the Defendants, attempted service or
negotiations to effect service are insufficient. The primary
case cited by both parties, Brown v. Hendler, 2011
WL 321139 at *2 (S.D.N.Y. Jan. 31, 2011), involved a scenario
where the potential witness was served with nine days to
comply. See Mot. to Quash 6; Defs.' Opp. 9-10.
The district court in that case noted that “many courts
have found fourteen dates from the date of service
as presumptively reasonable.” Id. (emphasis
added). Thus, the subpoena fails to allow a reasonable time
to comply. See Fed. R. Civ. P. 45(d)(3)(A)(i).
Dr. Malyugin is presently in the District of Columbia and
therefore would not currently need to “travel more than
100 miles from where that person resides, is employed, or
regularly transactions business in person [in this case, the
Russia Federation], ” his stay in the District of
Columbia is temporary. See Mot. to Quash 1-2 (the
annual meeting for which Dr. Malyugin is in the District of
Columbia ends on April 17, 2018). It is apparently
uncontested that he lives and works in Russia. See
generally Defs.' Opp. In light of Rule
45(d)(3)(A)(i)'s requirement that a subpoena provide a
reasonable amount of time to comply, re-noticing the
deposition with a reasonable timeframe for compliance may
then violate Rule 45(d)(3)(A)(ii)'s geographical
Defendants argue that the subpoena can be modified to give
Dr. Malyugin a reasonable time to comply, and that the
Defendants are amenable to other measures to lessen any
burden on Dr. Malyugin's compliance. Defs.' Opp. 13
(noting the Defendants' willingness to conduct the
deposition by video conference and the document production by
electronic means). While this Circuit has expressed
“the importance of the modification alternative”
and instructed courts in this District to “carefully
examine the circumstances presented to it and, when
appropriate, consider the possibility of modifying the
subpoena rather than quashing, ” Northrop Corp. v.
McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir.
1984), the circumstances in this case are unique: service was
effected only two days before the subpoena was due, Dr.
Malyugin is a Russian citizen, he resides and works in
Russia, and he is only in the District of Columbia briefly to
attend a professional conference. See Mot. to Quash.
6. Under these circumstances, modification of the subpoena
would be ineffectual to bring it into conformance with Rule
45's requirements. While the Defendants suggest that this
Court should follow the lead of Probulk Carriers Ltd. v.
Marvel Int'l Mgmt. and Transp., 180 F.Supp.3d 290,
292, 294 (S.D.N.Y. 2016), in which a subpoena served on a
Turkish resident was modified by the court to allow for the
deposition to occur in Turkey, that case did not apparently
involve a violation of the reasonable notice provision of
Rule 45, and the case already involved significant
international components that are absent in the current case.
It is not immediately clear to the Court that a deposition in
Russia is either acceptable to the Defendants or lawful under
the circumstances of the current case. The Defendants,
however, should not interpret this Order as prohibiting
reserving Dr. Malyugin with a subpoena in compliance with
Dr. Malyugin seeks sanctions on the Defendants under Rule
45(d)(1). I do not find that sanctions are warranted. Given
the declaration that Dr. Malyugin executed which attested to
having personal knowledge of the facts in the declaration and
his ability to “competently testify thereto as if
called as a witness in this proceeding, ” and the
numerous references to Dr. Malyugin in the Second Amended
Complaint, he is clearly a relevant witness in the underlying
litigation. See Defs.' Opp. Exs. 4-5;
Fed.R.Civ.P. 26(b)(1) (“Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense . . . .”). The Defendants
have persistently and in good faith contacted Dr. Malyugin
and/or the plaintiffs in the underlying matter to arrange a
deposition at a mutually agreeable time and place without
court intervention. See, e.g., Defs.' Opp. Ex.
14, ECF No. 2-15. The Defendants have consistently indicated
their willingness to work with Dr. Malyugin to obtain the
information they seek, including potentially withdrawing the
subpoena altogether if Dr. Malyugin does not intend to submit
further evidence or to testify in the underlying litigation.
Id. These are "reasonable steps to avoid
imposing undue burden or expense on a person subject to the
subpoena." See Fed. R. Civ. P. 45(d)(1).
Because sanctions are only authorized under Rule 45 for
unduly burdensome subpoenas, and I do not find the subpoena
to be unduly burdensome-regardless of its other obvious
defects- sanctions are not appropriate.
foregoing reasons, it is hereby
that Dr. Malyugin's Motion to Quash is GRANTED. It is
that Dr. Malyugin's Motion to ...