Whole Woman's Health v. Paxton

Filing 25

ORDER GRANTING JANE DOE, M.D.'S MOTION TO QUASH DEPOSITION SUBPOENA ISSUED BY DEFENDANTS PAXTON, ET AL. re: 1 . Signed by U.S. MAGISTRATE JUDGE KEVIN S.C. CHANG on 10/26/2017. (afc)CERTIFICATE OF SERVICE< /center>Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE:

)
)
WHOLE WOMAN’S HEALTH, et al. )
)
Plaintiffs,
)
)
vs.
)
)
)
KEN PAXTON, et al.,
)
)
Defendants.
_____________________________ )

MISC. NO. 17-00303 JMS-KSC
ORDER GRANTING JANE DOE,
M.D.’S MOTION TO QUASH
DEPOSITION SUBPOENA ISSUED BY
DEFENDANTS PAXTON, ET AL.

ORDER GRANTING JANE DOE, M.D.’S MOTION TO QUASH
DEPOSITION SUBPOENA ISSUED BY DEFENDANTS PAXTON, ET AL.
Jane Doe, M.D. (“Dr. Doe”), requests an order quashing
Ken Paxton’s (“Paxton”) October 19, 2017 subpoena (“Subpoena”)
commanding her to appear for a deposition on October 26, 2017 on
three grounds:

1) it fails to comply with Federal Rule of Civil

Procedure (“FRCP”) 45; 2) it imposes an undue burden; and 3) it
improperly seeks her unretained expert testimony.

For the

reasons articulated below, the Court GRANTS the Motion and HEREBY
QUASHES the Subpoena.
BACKGROUND
A.

Underlying Litigation
Paxton issued the Supboena in connection with a case

currently pending in the U.S. District Court for the Western
District of Texas, Austin Division, Whole Woman’s Health, et al.
v. Ken Paxton, et al., Civil No. 1:17-00690-LY.

The lawsuit,

filed by multiple Texas Healthcare providers, challenges the

constitutionality of Texas Senate Bill 8 (“SB 8”), which was
enacted during the 2017 legislative session.

As related to the

present Motion, SB 8 requires abortion providers to cause fetal
demise prior to performing a dilation and excavation.

According

to the defendants in the lawsuit, administering digoxin is “one
of the three safe and effective methods to induce fetal demise.”
Response, Doc. No. 13 at 2.
B.

History Related to the Subpoena
Paxton initially subpoenaed Dr. Doe on September 20,

2017, commanding her to appear for a deposition on October 6,
2017.

Following service of the subpoena, Paxton and Dr. Doe,

through counsel, engaged in negotiations concerning the scope of
the deposition and terms necessary for Dr. Doe to voluntarily
appear for a deposition.

The parties eventually agreed to submit

an unopposed motion for protective order.

However, during the

exchange of the working draft, Paxton removed provisions
prohibiting disclosure of Dr. Doe’s identity.

Unable to reach an

agreement concerning the content of the motion for protective
order, negotiations terminated and on October 19, 2017, Paxton
issued the Subpoena.
On October 23, 2017, Dr. Doe filed the present Motion.
ANALYSIS
Before reaching the merits of the dispute, the Court
addresses scheduling matters that appear to impact the

2

disposition of this Motion.

In the underlying action, an order

filed on September 11, 2017 states that “the parties agreed
discovery would be completed and that the cause may be set for
bench trial beginning November 2, 2017.”

Doc. No. 73 at 3.

The

Agreed Scheduling Order, filed on September 19, 2017, establishes
deadlines for designations of deposition testimony and witness
lists, among others, and most have expired.1

Doc. No. 83.

At

the hearing, Summer Lee, counsel for Paxton, explained that the
Special Master is allowing the parties to designate deposition
testimony during trial.

While it is still unclear whether

further discovery is permissible based on the orders and
deadlines in the underlying action, the Court has concerns that
the late-issued Subpoena could disrupt the underlying proceedings
and potentially violate agreed-upon deadlines.

This alone

arguably provides a basis to quash the subpoena.
Even if the deadlines in the underlying action do not
preclude the issuance of subpoenas and/or the taking of Dr. Doe’s

1

Melissa Cohen, staff attorney for the Planned Parenthood
Federation of America, and counsel for the plaintiffs Planned
Parenthood Center for Choice, Planned Parenthood for Greater
Texas Surgical Health Service, and Planned Parenthood South Texas
Surgical Center in the underlying action, confirmed that trial is
scheduled to commence on November 2, 2017; that the plaintiffs in
the underlying action do not intend to call Dr. Doe as a witness;
that the defendants in the underlying action did not identify Dr.
Doe on their witness list and the deadline to designate
additional trial witnesses without leave of court has passed; and
that the deadline to designate deposition testimony has passed.
Mot., Decl. of Melissa Cohen at ¶¶ 1, 11-12.
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deposition, the Court quashes the Subpoena because it fails to
allow a reasonable time to comply.
Courts for the district where compliance is required
must quash or modify subpoenas that:

“(i) fail[] to allow a

reasonable time to comply; (ii) require[] a person to comply
beyond the geographical limits specified in Rule 45(c); (iii)
require[] disclosure of privileged or other protected matter, if
no exception or waiver applies; or (iv) subject[] a person to
undue burden.”2
A.

Fed. R. Civ. P. 45(d)(3)(A).

Time to Comply
Paxton argues that the Subpoena provided sufficient

time to comply because not only is six days sufficient, Paxton
and Dr. Doe had been negotiating mutually agreeable terms since
September 20, 2017, when the first subpoena was served.

Citing

FRCP 30(b)(1), Paxton contends that a week to 10 days deposition
notice is sufficient when it does not involve the production of
documents.

The case cited by Paxton, Reddy v. Precyse Sols. LLC,

No. 1:12-CV-02061- AWI-SA, 2015 WL 3407447, at *3 (E.D. Cal. May

2

Paxton notes that Dr. Doe has not sought a protective
order. A protective order is unnecessary; this Motion is the
appropriate mechanism to challenge the subpoena. In fact, even
without a request for a protective order, courts may impose
conditions instead of modifying or quashing a subpoena. Fed. R.
Civ. P. 45(d)(3)(C) (authorizing the court to “order appearance
or production under specified conditions” in the circumstances
described in FRCP 45(d)(3)(B) provided that the serving party
“(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and (ii) ensures
that the subpoenaed person will be reasonably compensated”).
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26, 2015), was an order granting the defendant’s FRCP 37 motion
to compel the plaintiff’s deposition.3
FRCP 45 were not implicated.

Thus, the strictures of

Insofar as Dr. Doe is not a party

to the underlying action,4 and this Motion concerns a subpoena,
the Court is guided by cases applying FRCP 45.
In determining the reasonableness of the time to comply
with a subpoena, courts conduct a fact-specific inquiry.

Gordon

v. Sonar Capital Mgmt. LLC, No. C 15-80080 LB, 2015 WL 1227848,
at *2 (N.D. Cal. Mar. 15, 2015).

“Service of subpoenas at least

10 days before the deposition or production is customary, but not
mandatory.”

Bonzani v. Shinseki, No. 2:11-CV-00007- EFB, 2014 WL

2521849, at *4 (E.D. Cal. June 4, 2014) (citation and quotations
omitted).

That said, courts generally conclude that fewer than

10 days to comply is unreasonable.

Gordon, 2015 WL 1227848, at

*2 (citing Tri Investments, Inc. v. Aiken Cost Consultants, Inc.,
No. 11–04, 2011 WL 5330295, at *2 (W.D.N.C. Nov. 7, 2011)
(holding that “[s]ix total days and four business days is not a
reasonable time to comply with a subpoena and notice of

3

The plaintiff failed to appear for two depositions and
the Court found that the defendant’s second amended notice of
deposition, served on April 20, 2015 and noticing the deposition
for May 8, 2015, was reasonable and complied with FRCP 30(b).
Reddy, 2015 WL 3407447, at **2-3
4

“Non-parties may occasionally have to testify and give
evidence for and against litigants, but non-parties should not be
burdened in discovery to the same extent as the litigants
themselves.” Convolve, Inc. v. Dell, Inc., No. C 10-80071 WHA,
2011 WL 1766486, at *2 (N.D. Cal. May 9, 2011).
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deposition”); Anderson v. Dobson, No. 06–02, 2006 WL 3390631, at
*3 (W.D.N.C. Nov. 22, 2006) (holding that 10 days was not an
adequate time for compliance and noting that “the usual and
customary 14 day objection period for the witness to move to
quash the subpoena would not have even run by the time of the
proposed depositions”); In re Stratosphere Corp. Sec. Litig., 183
F.R.D. 684, 687 (D. Nev. 1999) (holding that six days was not
reasonable)).
Here, the Subpoena provided only six days to comply.
The Court acknowledges that Dr. Doe was on notice, from September
20, 2017, that Paxton sought to depose her.

However, Paxton was

likewise on notice that Dr. Doe was contemplating a motion to
quash and that she believes multiple bases exist to quash the
Subpoena.

Mot., Decl. of Michael Bopp at ¶¶ 7-8.

Under the

circumstances, the Court finds that the Subpoena did not provide
a reasonable time to comply.
Revealed for the first time at the hearing, compliance
with the Subpoena would require Dr. Doe to travel to Honolulu
from Los Angeles.5

Six days is an unreasonably short window of

5

This provides yet another basis to quash the subpoena.
Fed. R. Civ. P. 45(d)(3)(A)(ii) (mandating that a subpoena be
quashed or modified if it “requires a person to comply beyond the
geographical limits specified in Rule 45(c)”). FRCP 45(c) allows
a subpoena to command a person to attend a deposition “within 100
miles of where the person resides, is employed, or regularly
transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A).
Travel to Honolulu from Los Angeles clearly violates FRCP
45(c)(1).
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time for a non-party (or any party for that matter) to appear for
a deposition thousands of miles from her residence.

Paxton

argues that Dr. Doe’s counsel asked that she be deposed in
Honolulu, but the record reflects otherwise.

During their

negotiations, the parties discussed the location of the
deposition, but at no point did Dr. Doe’s counsel request that
the deposition be noticed in Honolulu.

The parties never settled

on a location.
In an October 17, 2017 email, Christopher Hilton,
counsel for Paxton, stated:

“I don’t understand the issue with

providing a date for the deposition and confirmation that you
will accept service.
can’t agree to LA.”

We will just re-notice for Hawaii if you
Response, Doc. No. 8, Ex. E at 3.

Perlette

Jura, counsel for Dr. Doe, responded on October 19, 2017 that she
would ask Dr. Doe “if we are authorized to accept service if you
want to serve a new subpoena for Hawaii.

At this time I do not

have her authorization, so I’ll need to ask.”

Id. at 2.

Accordingly, Dr. Doe did not request that the deposition take
place in Honolulu and the Subpoena provided insufficient time to
comply.
Moreover, the period October 19-26, 2017 includes a
weekend, leaving merely four business days for the presentation
and adjudication of a motion to quash.

In re Stratosphere, 183

F.R.D. at 687 (“Mr. Di Rocco was apparently not served with the

7

subpoena until November 18, 1998, six days before the scheduled
deposition on November 24, 1998 (including the weekend), even
though Plaintiffs knew Mr. Di Rocco was contesting any taking of
his deposition.”).

Were trial not scheduled to commence on

November 2, 2017, the exigency of the situation would be less
pronounced.

If the Subpoena was issued sufficiently in advance

of trial with a reasonable time to comply, a motion to quash
could be addressed in the ordinary course.

But due to the

impending trial, Dr. Doe was instead forced to challenge the
Subpoena, and the Court tasked with resolving the matter, on an
extraordinarily expedited basis.
Paxton emphasizes that the defendants in the underlying
action are subject to an expedited schedule and that he scheduled
the deposition to provide maximum notice to Dr. Doe while
accounting for the limited discovery window.
negotiations reflect a lack of urgency.
Exs. A-E.

Yet the parties’

Response, Doc. No. 8,

The negotiation process dragged on for one month and

was ultimately unsuccessful, thereby negating counsel’s efforts.
Now, on the eve of trial and with multiple pertinent deadlines
having expired, Paxton seeks to hurriedly take Dr. Doe’s
deposition.

Paxton believes that because he commanded Dr. Doe to

appear on a date her counsel previously indicated she could be
available, Dr. Doe must articulate a reason why she requires more
than six days to arrange for her appearance.

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A person’s

availability does not automatically render the provided time to
comply reasonable.

As already discussed, compliance with the

Subpoena would have required Dr. Doe travel to Hawaii.

The

circumstances must be considered, as they have been here.

Based

on the record before it, limited as it may be, the Court finds
that the Subpoena fails to provide a reasonable time to comply.
The Subpoena is accordingly QUASHED and Dr. Doe is relieved from
any obligation to appear for the October 26, 2017 deposition.
Given the foregoing determination, it unnecessary to
address Dr. Doe’s remaining arguments.6
CONCLUSION
For the reasons stated herein, the Court HEREBY GRANTS
Dr. Doe’s Motion to Quash, filed October 23, 2017.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, October 26, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

MISC. NO. 17-00303 JMS-KSC; IN RE: WHOLE WOMAN’S HEALTH; ORDER GRANTING JANE
DOE, M.D.’S MOTION TO QUASH DEPOSITION SUBPOENA ISSUED BY DEFENDANTS PAXTON,
ET AL.

6

Paxton maintains that he only seeks to depose Dr. Doe for
authentication purposes and for factual information. If this is
true, there are less burdensome mechanisms that could be utilized
to obtain information from Dr. Doe.
9