La Fosse v. Winco Foods LLC
ORDER granting 1 Motion to Compel. Signed by Judge B Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (slm)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
PAM LA FOSSE, et al.,
Case No. 1:21-mc-00594-BLW
WINCO FOODS, LLC,
Before the Court is Petitioner’s Motion to Enforce Third-Party Subpoena
Duces Tecum. (Dkt. 1). Petitioner filed an affidavit certifying that Respondent
WinCo Foods LLC was served with the motion and supporting documents on July
14, 2021. WinCo failed to file a response within the allotted time, therefore the
Court must decide the motion based on the La Fosse’s briefing. For the reasons
outlined below, the Court will grant La Fosse’s motion to enforce the subpoena.
This case concerns a subpoena that was served on Boise-based WinCo
Foods LLC by the Petitioners, who are plaintiffs in LaFosse v. Sanderson Farms,
Inc., 19-cv-06970. The LaFosse case is pending in the Northern District of
MEMORANDUM DECISION AND ORDER - 1
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California. The plaintiffs allege the defendants falsely marketed Sanderson Farms
chicken as “100% Natural.” Petitioners served the subpoena on April 7, 2021,
seeking information necessary to their case that is not available anywhere else. On
June 16, 2021, WinCo claimed it would be costly and burdensome to provide sales
information, and that it only had data beginning in 2019, not 2015, but that it
would produce advertising data “early next week.” Petitioners’ counsel responded
on June 17, 2021 with suggestions to minimize the burden on Winco. Petitioners
have received neither the promised advertising documents, nor any further
response from WinCo. Petitioners asks the Court to enforce the subpoena with
respect to the requested sales data and advertising material.
Federal Rule of Civil Procedure 45 governs discovery of nonparties by
subpoena. Under Rule 45, "[a] subpoena must issue from the court where the
action is pending." Fed. R. Civ. P. 45(a)(2). However, the authority to decide a
motion to compel arising out of that subpoena is vested with the court where
compliance is required. See Fed. R. Civ. P. 45(d)(2)(B)(i) ("At any time, on notice
to the commanded person, the serving party may move the court for the district
where compliance is required for an order compelling production or inspection."
(emphasis added)); Fed. R. Civ. P. 37(a)(2) ("A motion for an order to a party must
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be made in the court where the action is pending. A motion for an order to a
nonparty must be made in the court where discovery is or will be taken."); Adv.
Comm. Notes to 2013 Amend. to Rule 45 ("Subpoenas are essential to obtain
discovery from nonparties. To protect local nonparties, local resolution of disputes
about subpoenas is assured by the limitations of Rule 45(c) and the requirements in
Rules 45(d) and (e) that motions be made in the court in which compliance is
required under Rule 45(c)."). In short, subpoenas are issued from the court where
the action is pending; while motion practice arising out of those subpoenas is
decided by the court where compliance is required (unless that court transfers the
dispute to the court where the action is pending).
Here, the subpoena was issued from the Northern District of California,
where the action is pending. The place of compliance is “within the state where the
person resides, is employed or regularly transacts business in person.” Fed. R. Civ.
P. 45(c)(1)(B). Winco Foods LLC is a Boise-based company, therefore this Court
is authorized to decide whether compliance is required.
Under Rule 45(d)(2)(B) an objection to a subpoena “must be served before
the earlier of the time specified for compliance or 14 days after the subpoena is
served.” Failure to timely serve an objection constitutes a waiver of all grounds for
objection. McCoy v. Southwest Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002).
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Here, Petitioners served WinCo on April 7, 2021, and the time required for
compliance was April 23, 2021. On June 16, 2021, Winco informed Petitioners by
email that it would be costly and burdensome to provide sales information.
However, this response was well over 14 days after the subpoena was served and
after the time required for compliance. The Court finds that WinCo’s failure to
timely serve an objection constitutes a waiver. Therefore, WinCo is required to
fully and completely respond to the subpoena under Rule 45. Accordingly, the
Court will enforce the subpoena duces tecum and order WinCo to produce the sales
and advertising data as requested by Petitioners.
IT IS ORDERED that:
Petitioners’ Motion to Enforce Subpoena Duces Tecum (Dkt. 1) is
GRANTED. WinCo shall comply with Rule 45 and respond to the subpoena and
produce all responsive sales and advertising data as requested by Petitioners
without objections no later than October 18, 2021.
DATED: October 4, 2021
B. Lynn Winmill
U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 4
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