SharkDiver Consulting Incorporated et al v. Gemini Direct LLC et al

Filing 10

ORDER: IT IS ORDERED denying the Expedited Motion to Transfer Pursuant to Rule 45(f) (Doc. #5 ). (See attached Order). Signed by Judge John J Tuchi on 6/6/2024. (JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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SharkDiver Consulting Incorporated, et al.,
Plaintiffs,

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v.

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Gemini Direct LLC, et al.,

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Defendants.

No. MC-24-00016-PHX-JJT
ORDER

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At issue is the Expedited Motion to Transfer Pursuant to Rule 45(f) (Doc. 5, Mot.)

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filed by Defendants Gemini Direct, LLC and Steve Urvan, to which non-party Ammo, Inc.

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filed a Response (Doc. 8).

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The litigation underlying the present dispute is before the District Court for the

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Northern District of Georgia. As part of Defendants’ discovery in that matter, they wish to

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conduct a Federal Rule of Civil Procedure 30(b)(6) deposition of non-party Ammo, an

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Arizona company. Ammo now contests multiple aspects of the subpoena served by

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Defendants setting the deposition.

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As the Court stated in its prior Order (Doc. 6), the proper vehicle for objecting to

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the contents of a Rule 30(b)(6) deposition notice—for example, to argue that it is

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disproportionate to the needs of the case under Rule 26(b)(1)—is the filing of a motion for

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protective order under Rule 26(c). See ChriMar Sys. Inc. v. Cisco Sys. Inc., 312 F.R.D.

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560, 561–62 (N.D. Cal. 2016). Rule 26(c) allows the movant to request a protective order

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“in the court for the district where the deposition will be taken.” Here, the Rule 30(b)(6)

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deposition notice Defendants served on Ammo specifies a deposition by Zoom, which is

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not a location where the deposition will be taken—or at least not just one location. Ammo

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is located in Arizona, so presumably it will give the deposition from Arizona. Therefore,

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Ammo’s filing of the Motion to Quash or for Protective Order (Doc. 1) was arguably proper

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in this District.

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Under Rule 45(f), Defendants have filed the present “Expedited Motion” (Doc. 5)

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asking this Court to transfer consideration of Ammo’s Motion to Quash or for Protective

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Order (Doc. 1) to the subpoena-issuing court in the Northern District of Georgia. Rule 45(f)

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allows a court to transfer a subpoena-related motion to the subpoena-issuing court in

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“exceptional circumstances.” The Advisory Committee’s note to Rule 45(f) states that, as

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a starting point, the court’s “prime concern should be avoiding burdens on local nonparties

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subject to subpoenas and it should not be assumed that the issuing court is in a superior

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position to resolve subpoena-related motions.” But a transfer “may be warranted in order

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to avoid disrupting the issuing court’s management of the underlying litigation, as when

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that court has already ruled on issues presented by the motion or the same issues are likely

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to arise in discovery in many districts.” Fed. R. Civ. P. 45(f) advisory committee’s note to

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2013 amendment; see Moon Mountain Farms, LLC v. Rural Cmty. Ins. Co., 301 F.R.D.

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426, 429–30 (N.D. Cal. 2014) (collecting cases and noting that attempting to circumvent

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the authority of the presiding judge in the underlying action is an exceptional circumstance

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contemplated by Rule 45). “Transfer is appropriate only if such interests outweigh the

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interests of the nonparty served with the subpoena in obtaining local resolution of the

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motion.” Fed. R. Civ. P. 45(f) advisory committee’s note to 2013 amendment. “[T]he

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proponent of transfer bears the burden of showing that [the requisite exceptional

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circumstances] are present.” Id.

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In their Motion (Mot. at 3–6), Defendants conclusorily argue but fail to demonstrate

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that transfer of Ammo’s motion for protective order to the Northern District of Georgia

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will avoid inconsistent rulings. Defendants state that the underlying litigation is “incredibly

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complex” (Mot. at 5), but they do not point to a material issue wrapped up in Ammo’s

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motion that has been or is being considered by the subpoena issuing court in the underlying

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litigation, unlike in the cases Defendants cite in which courts granted motions for transfer.

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See Venus Med. Inc. v. Skin Cancer & Cosmetic Dermatology Ctr. PC, 2016 WL 159952,

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at *3 (D. Ariz. Jan. 14, 2016) (finding risk of inconsistent rulings where transfer movant

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showed the same issues involved in the subpoena-related motion were already being

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considered by the issuing court). Ammo’s motion for protective order challenges

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Defendants’ subpoena because it is overly broad, lacks particularity, and does not

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sufficiently identify a “place” for the deposition. (Doc. 1 at 8.) The Court cannot conclude

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that any of these issues are before the issuing court in the underlying litigation.

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Defendants also state that the underlying litigation “spans multiple forums” (Mot.

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at 5), but Ammo shows that it is not the underlying litigation that spans multiple forums,

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but rather that there are multiple lawsuits in multiple forums. Defendants do not

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demonstrate that the issuing court is overseeing or has knowledge of the discovery in each

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of the multiple lawsuits, let alone is deciding material issues affecting those lawsuits.

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Where the Advisory Committee’s note states that exceptional circumstances may exist

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where “the same issues are likely to arise in discovery in many districts,” it implies that it

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would be beneficial to centralize consideration of those issues to an overseeing court where

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a single underlying lawsuit exists, unlike in this instance.

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Rule 45(f) does not direct the Court to consider the case management schedule in

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the underlying litigation as an “exceptional circumstance.” As stated above, in considering

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whether to transfer a subpoena-related motion, the “prime concern should be avoiding

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burdens on local nonparties subject to subpoenas.” Fed. R. Civ. P. 45(f) advisory

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committee’s note to 2013 amendment. In the absence of a showing of exceptional

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circumstances warranting transfer, as here, this “prime concern” is left as the only concern

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the Court may consider. As a result, the Court must deny the Motion to Transfer.

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....

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....

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IT IS THEREFORE ORDERED denying the Expedited Motion to Transfer
Pursuant to Rule 45(f) (Doc. 5).
Dated this 6th day of June, 2024.

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Honorable John J. Tuchi
United States District Judge

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