Millennium Laboratories Incorporated v. Allied World Assurance Company (US) Incorporated

Filing 12

ORDER that the motion to quash is denied. The Clerk shall terminate this action. Signed by Judge David G Campbell on 11/7/2013. (KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 IN RE: SUBPOENA TO KELLY NELSON 10 No. MC13-00082-PHX-DGC ORDER 11 12 13 Kelly Nelson (“Movant”) has filed a motion to quash a subpoena issued by Allied 14 World Insurance Company, Inc. (“Allied”), or in the alternative for a protective order. 15 Doc. 1. The motion is fully briefed and no party has requested oral argument. For the 16 reasons that follow, the Court will deny the motion. 17 I. Background. 18 Movant was served with a subpoena in connection with pending litigation in the 19 Southern District of California between Allied and Millennium Laboratories, Inc. 20 (“Millennium”). Doc. 10 at 2. The case centers around a dispute between Allied and 21 Millennium over whether costs incurred by Millennium in responding to a Department of 22 Justice (“DOJ”) investigation are covered by their insurance. Id. Allied wishes to depose 23 Movant, a former Millennium employee, because she “has unique knowledge regarding 24 this issue because she was called to testify as a witness before a grand jury” during the 25 course of the DOJ investigation of Millennium. Id. Movant contends that the subpoena 26 seeks information which is protected or privileged and that it is unduly burdensome. 27 Doc. 1 at 2. Movant is also currently engaged in separate litigation with Millennium 28 pending in the District of Arizona (“Millennium Litigation”). Id. at 1-2. 1 II. Motion to Quash. 2 Rule 45(c)(3) of the Federal Rules of Civil Procedure allows an issuing court to 3 quash or modify a subpoena for several reasons, including that the subpoena “requires 4 disclosure of privileged or other protected matter, if no exception or waiver applies; or 5 subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(iii)-(iv). 6 A. Privilege. 7 Movant contends the subpoena should be quashed because it seeks “privileged and 8 protected information related to Grand Jury Proceedings.” Doc. 3. She cites United 9 States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983), and Rehberg v. Paulk, 132 S. 10 Ct. 1497, 1509 (2012), to support her claim that information related to her testimony 11 before a grand jury is privileged or protected. Doc. 1 at 3. Movant is incorrect. Neither 12 case provides support for her argument. Sells, in fact, contains language directly contrary 13 to her position, noting that Rule 6(e)(2) of the Federal Rules of Criminal Procedure 14 “provides that grand jurors, government attorneys and their assistants, and other 15 personnel attached to the grand jury are forbidden to disclose matters occurring before 16 the grand jury,” and that “[w]itnesses are not under the prohibition unless they also 17 happen to fit into one of the enumerated classes.” 463 U.S. at 425. As Allied correctly 18 notes, grand jury witnesses are not a part of the Rule 6(e)(2)(B) list and a witness is “free 19 to hold a press conference and reveal everything that was asked of him or her and what 20 his or her answers were.” In re Graphics Processing Units Antitrust Litig., CV-06- 21 07417-WHA, 2007 WL 2127577, at * 2 (N.D. Cal. July 24, 2007). The Court will 22 therefore deny Movant’s motion to quash on this ground. 23 B. Undue Burden. 24 Movant also argues that complying with the subpoena would be unduly 25 burdensome because the litigation “has nothing to do with her.” Doc. 1 at 4. In her 26 reply, she asserts that because she has already testified for fourteen hours of live 27 deposition in connection with the Millennium Litigation, she should not be burdened 28 “with yet another deposition with [Millennium] counsel present.” Doc. 11 at 3. The -2- 1 Court is unconvinced. The length of Movant’s depositions in the Millennium Litigation 2 is not relevant here. Movant does not dispute that her testimony is relevant to a central 3 issue in the case – the scope and nature of the DOJ investigation. Further, although she 4 contends that she should not “be dragged into a distant litigation,” she does not contend 5 that the time spent or expense incurred complying with this subpoena would be unduly 6 burdensome. Because Movant raises no colorable argument that she will be subject to an 7 undue burden, the Court will also deny the motion to quash on this ground. 8 III. Protective Order. 9 Movant requests a protective order in the alternative (doc. 1 at 1), but neither cites 10 authority nor presents arguments on the issue. She also requests in her reply that the 11 Court limit her deposition to no more than 2 hours, restrict questioning to “matters raised 12 only during [Movant]’s attendance at the Grand Jury Proceedings,” and allow Movant “to 13 decline to answer any specific questions” that would violate a protective order entered in 14 the Millennium Litigation or any confidentiality agreements to which she is subject. 15 Doc. 11 at 5. Movant is already subject to a civil protective order in the Millennium 16 Litigation. See Nelson v. Millennium Laboratories, Inc., CV-12-1301-SLG at doc. 36. 17 The Court will not attempt to rule in advance on what issue or questions might fall within 18 a protective order entered by another judge. Like any deponent, Movant is entitled to the 19 protections of Rules 26 and 30 of the Federal Rules of Civil Procedure, and may seek 20 assistance from the judge who entered the protective order if it becomes necessary. 21 22 23 IT IS ORDERED that the motion to quash is denied. The Clerk shall terminate this action. Dated this 7th day of November, 2013. 24 25 26 27 28 -3-

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