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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE:
SUBPOENA TO KELLY NELSON

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No. MC13-00082-PHX-DGC
ORDER

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Kelly Nelson (“Movant”) has filed a motion to quash a subpoena issued by Allied

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World Insurance Company, Inc. (“Allied”), or in the alternative for a protective order.

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Doc. 1. The motion is fully briefed and no party has requested oral argument. For the

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reasons that follow, the Court will deny the motion.

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I.

Background.

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Movant was served with a subpoena in connection with pending litigation in the

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Southern District of California between Allied and Millennium Laboratories, Inc.

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(“Millennium”). Doc. 10 at 2. The case centers around a dispute between Allied and

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Millennium over whether costs incurred by Millennium in responding to a Department of

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Justice (“DOJ”) investigation are covered by their insurance. Id. Allied wishes to depose

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Movant, a former Millennium employee, because she “has unique knowledge regarding

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this issue because she was called to testify as a witness before a grand jury” during the

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course of the DOJ investigation of Millennium. Id. Movant contends that the subpoena

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seeks information which is protected or privileged and that it is unduly burdensome.

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Doc. 1 at 2. Movant is also currently engaged in separate litigation with Millennium

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pending in the District of Arizona (“Millennium Litigation”). Id. at 1-2.

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II.

Motion to Quash.

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Rule 45(c)(3) of the Federal Rules of Civil Procedure allows an issuing court to

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quash or modify a subpoena for several reasons, including that the subpoena “requires

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disclosure of privileged or other protected matter, if no exception or waiver applies; or

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subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(iii)-(iv).

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A.

Privilege.

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Movant contends the subpoena should be quashed because it seeks “privileged and

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protected information related to Grand Jury Proceedings.” Doc. 3. She cites United

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States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983), and Rehberg v. Paulk, 132 S.

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Ct. 1497, 1509 (2012), to support her claim that information related to her testimony

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before a grand jury is privileged or protected. Doc. 1 at 3. Movant is incorrect. Neither

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case provides support for her argument. Sells, in fact, contains language directly contrary

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to her position, noting that Rule 6(e)(2) of the Federal Rules of Criminal Procedure

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“provides that grand jurors, government attorneys and their assistants, and other

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personnel attached to the grand jury are forbidden to disclose matters occurring before

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the grand jury,” and that “[w]itnesses are not under the prohibition unless they also

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happen to fit into one of the enumerated classes.” 463 U.S. at 425. As Allied correctly

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notes, grand jury witnesses are not a part of the Rule 6(e)(2)(B) list and a witness is “free

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to hold a press conference and reveal everything that was asked of him or her and what

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his or her answers were.” In re Graphics Processing Units Antitrust Litig., CV-06-

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07417-WHA, 2007 WL 2127577, at * 2 (N.D. Cal. July 24, 2007). The Court will

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therefore deny Movant’s motion to quash on this ground.

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B.

Undue Burden.

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Movant also argues that complying with the subpoena would be unduly

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burdensome because the litigation “has nothing to do with her.” Doc. 1 at 4. In her

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reply, she asserts that because she has already testified for fourteen hours of live

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deposition in connection with the Millennium Litigation, she should not be burdened

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“with yet another deposition with [Millennium] counsel present.” Doc. 11 at 3. The

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Court is unconvinced. The length of Movant’s depositions in the Millennium Litigation

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is not relevant here. Movant does not dispute that her testimony is relevant to a central

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issue in the case – the scope and nature of the DOJ investigation. Further, although she

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contends that she should not “be dragged into a distant litigation,” she does not contend

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that the time spent or expense incurred complying with this subpoena would be unduly

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burdensome. Because Movant raises no colorable argument that she will be subject to an

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undue burden, the Court will also deny the motion to quash on this ground.

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III.

Protective Order.

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Movant requests a protective order in the alternative (doc. 1 at 1), but neither cites

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authority nor presents arguments on the issue. She also requests in her reply that the

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Court limit her deposition to no more than 2 hours, restrict questioning to “matters raised

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only during [Movant]’s attendance at the Grand Jury Proceedings,” and allow Movant “to

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decline to answer any specific questions” that would violate a protective order entered in

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the Millennium Litigation or any confidentiality agreements to which she is subject.

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Doc. 11 at 5. Movant is already subject to a civil protective order in the Millennium

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Litigation. See Nelson v. Millennium Laboratories, Inc., CV-12-1301-SLG at doc. 36.

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The Court will not attempt to rule in advance on what issue or questions might fall within

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a protective order entered by another judge. Like any deponent, Movant is entitled to the

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protections of Rules 26 and 30 of the Federal Rules of Civil Procedure, and may seek

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assistance from the judge who entered the protective order if it becomes necessary.

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IT IS ORDERED that the motion to quash is denied. The Clerk shall terminate
this action.
Dated this 7th day of November, 2013.

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