United States District Court, D. Nevada
ORDER (DOCKET NO. 37)
J. KOPPE, United States Magistrate Judge
before the Court is Plaintiff's motion to compel. Docket
No. 37. Defendant filed a response and Plaintiff filed a
reply. Docket Nos. 39, 40. The parties also filed a joint
status report in compliance with the Court's December 6,
2016, order. See Docket Nos. 41 (order), 49 (status
report). The Court finds this matter properly resolved
without oral argument. See Local Rule 78-1.
dispute arises from a related action pending in the Northern
District of Illinois (“Illinois action”). Docket
No. 23 at 8. Plaintiff initiated the Illinois action on April
29, 2016, bringing claims against former employees who left
to work for Defendant. Docket No. 2 at 7. The Illinois court
issued a nonparty subpoena, which Plaintiff served on
Defendant on May 6, 2016. Docket No. 23 at 8. The subpoena
commanded compliance at Defendant's counsel's office
in Chicago, Illinois. Id.
12, 2016, Plaintiff filed a motion in the Illinois action to
compel the defendants in that action to produce the same
devices Plaintiff sought from Defendant through the nonparty
subpoena. Id. Defendant nonetheless served its
responses to the subpoena on Plaintiff. Id. Among
other objections, Defendant noted that the subpoena ordered
compliance more than 100 miles from where it regularly
transacts business, in violation of Rule
45(c)(2)(A). Id. at 9. After Defendant served
its responses, United States District Judge John J. Tharp,
Jr. of the Northern District of Illinois held a hearing on
Plaintiff's motion to compel. Docket No. 4-7. Judge Tharp
noted that Plaintiff should bring the motion against the
instant Defendant, rather than the defendants in the Illinois
action. Id. at 9-10.
16, 2016, Plaintiff and Defendant met and conferred about the
nonparty subpoena. Docket No. 23 at 9. While somewhat
fruitful, the meet and confer did not resolve all issues.
Id. at 9-11. After further communication, on July
23, 2016, Plaintiff notified Defendant that it intended to
file a motion to compel in the Central District of
California. Id. at 11. Defendant correctly
determined that the Central District of California did not
have jurisdiction to hear a motion to compel compliance with
the nonparty subpoena because the place of compliance was
Chicago, Illinois. Id. at 12-13; see also
Fed. R. Civ. P. 45(d)(3)(A)(ii). Plaintiff then suspended its
efforts to seek compliance in the Central District of
California. Id. at 13. Nonetheless, Plaintiff
informed Defendant that it would instead file a motion to
compel in this District. Id. Defendant pointed out
that doing so would not resolve the jurisdictional issue, and
sought to meet and confer further. Id. Plaintiff did
not respond. Id.
August 5, 2016, Plaintiff initiated an action in this
District. Docket No. 1. The same day, Plaintiff filed, in
this District, both a motion to compel and a motion to
transfer that motion to the Northern District of Illinois.
Docket Nos. 2, 6. On August 25, 2016, the Court granted the
motion to transfer because, inter alia, this
District, like the Central District of California, lacked
jurisdiction over the motion to compel. Docket No. 34 at 4.
September 23, 2016, Defendant filed a motion to dismiss
Plaintiff's motion to compel, or, in the alternative, to
quash for lack of personal jurisdiction, in the Illinois
action. Docket No. 39 at 7. On October 19, 2016, United
States Magistrate Judge Maria Valdez of the Northern District
of Illinois granted the motion in part and denied it in part.
Docket No. 38-7. Judge Valdez noted that, as Defendant had
previously pointed out, the subpoena improperly required
compliance outside of Rule 45(c)(2)(A)'s geographical
limits. Id. at 6-7. Judge Valdez therefore modified
the subpoena “to reflect a place of compliance in Las
Vegas, Nevada.” Id. at 8.
October 20, 2016, Plaintiff filed the instant motion to
compel in this Court. Docket No. 37. Defendant noted in its
response that the parties had not met and conferred for
months. Docket No. 39 at 11. On December 6, 2016, therefore,
the Court ordered the parties to meet and confer and to
provide any relevant updates by December 23, 2016. Docket No.
41. The parties subsequently filed a status report indicating
that they were not able to resolve their dispute. Docket No.
submits that “exceptional circumstances” exist
that warrant transferring its motion to the Northern District
of Illinois under Rule 45(f), but declines to request
transfer. Docket No. 37 at 4. Nonetheless, “Rule 45(f)
does not require that a motion to transfer be filed, and the
Court may sua sponte order transfer where
appropriate.” Buc-ee's, Ltd. v. Shepherd
Retail, Inc., No. 3:17-mc-1-N-BN, 2017 WL 86143, at *1
(N.D. Tex. Jan. 10, 2017) (internal quotation marks and
citation omitted). “Whether to transfer a
subpoena-related motion is committed to the discretion of the
court in the district where compliance is required. See
Moon Mountain Farms, LLC v. Rural Cmty. Ins. Co., 301
F.R.D. 426, 429 (N.D. Cal. 2014).
determination of whether “exceptional
circumstances” exist turns on the particular facts of
each case. Agincourt Gaming, LLC v. Zynga, Inc., No.
2:14-cv-0708-RFB-NJK, 2014 WL 4079555, at *6 (D. Nev. Aug.
15, 2014). “While a prime concern is to avoid burdens
on local nonparties subject to subpoenas, this interest of
the nonparty must be balanced with the interests in ensuring
the efficient, fair, and orderly progress of ongoing
litigation before the issuing court.” Judicial
Watch, Inc. v. Valle Del Sol, Inc., 307 F.R.D. 30, 34
(D.D.C. 2014) (internal alterations and quotations omitted).
The court considering transfer should not assume that the
issuing court is in a better position to resolve
subpoena-related motions. In re UBS Fin'l Servs.,
Inc. of Puerto Rico Sec. Litig., 113 F.Supp.3d 286, 287
(D.D.C. 2015). Nonetheless, “transfer may be warranted
in order to avoid disrupting the issuing court's
management of the underlying litigation, as when the court
has already ruled on issues presented by the motion or the
same issues are likely to arise in discovery in many
districts, ” so long as those interests outweigh the
interests of the subpoenaed party in obtaining local
resolution of the motion. Moon Mountain, 301 F.R.D.
at 428 (quoting Fed.R.Civ.P. 45(f) Advisory Committee Notes
Court finds that exceptional circumstances exist that warrant
transferring Plaintiff's motion to the Northern District
of Illinois. See Rule 45(f). Plaintiff's primary
reason for not requesting transfer appears to be that it has
already spent five months attempting to enforce its subpoena.
See Docket No. 37 at 4. However, as Judge Valdez
aptly noted, Plaintiff is responsible for this delay.
See Docket No. 38-7 at 9. Moreover, Plaintiff
presents no points and authorities in support of its motion
to compel. See Docket No. 2. Instead, Plaintiff relies on
references to how Judge Tharp indicated he might rule on
certain issues, and to the stipulated protective order in
place in the Illinois action. See, e.g., Docket No.
2. at 16-17. Plaintiff's reliance on these
factors makes clear that a ruling from this Court would
disrupt the Illinois court's management of the underlying
litigation. The Court declines to speculate as to how Judge
Tharp may rule on any issues. Similarly, the Court will not
rule on the sufficiency of the protective order issued in the
Northern District of Illinois. The Court finds that, contrary
to Plaintiff's assertions, the most direct and efficient
way to resolve this dispute is to present it for review to
the Northern District of Illinois, which is much more
familiar with the relevant facts. Finally, the Court finds
that the aforementioned interests outweigh Defendant's
interest in obtaining local resolution of this dispute.