WELCH v. ELI LILLY & COMPANY

Filing 60

ORDER denying Pltf's 52 Motion to Compel; granting USA's 33 Motion to Quash (see Order). Signed by Magistrate Judge Tim A. Baker on 1/16/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

CASSANDRA WELCH,
Plaintiff,
vs.
ELI LILLY & COMPANY,
Defendant.

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Case No. 1:10-cv-1705-LJM-TAB
Case No. 1:11-cv-0891-LJM-TAB

ORDER ON MOTIONS TO QUASH AND COMPEL
Plaintiff Cassandra Welch issued a subpoena from the Southern District of Indiana to
non-parties the U.S. Department of Homeland Security and the U.S. Secret Service. Plaintiff
also filed a motion to compel the production of the documents requested by the subpoena. The
government moved to quash the subpoena for a number of reasons, primarily arguing noncompliance with the Touhy regulations. However, the Court need not reach this issue because
the subpoena requests production outside the Southern District of Indiana, which renders the
subpoena defective. Therefore, the government’s motion to quash [Docket No. 52] is granted
and Plaintiff’s motion to compel [Docket No. 79] is denied.1
Pursuant to Federal Rule of Civil Procedure 45(a)(2)(c), a subpoena for production or
inspection, if separate from a subpoena commanding a person’s attendance, must issue “from the

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With respect to the related case Welch v. Eli Lilly, Case No. 1:11-cv-0891-LJM-TAB, in
which the parties have filed identical motions, the motion to quash [Docket No. 33] is granted
and the motion to compel [Docket No. 52] is denied.
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court for the district where the production or inspection is to be made.” In other words,
Plaintiff’s subpoena that is separate from a subpoena commanding a person’s attendance is
facially invalid because it issued from the Southern District of Indiana and commands production
in the District of Columbia. Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 412 (3d
Cir. 2004) (“‘Production’ refers to the delivery of documents, not their retrieval, and therefore
‘the district in which the production . . . is to be made’ is not the district in which the documents
are housed but the district in which the subpoenaed party is required to turn them over.”);
Schreiber Foods, Inc. v. Indirect Purchaser Plaintiffs, No. 12-MC-0050, 2012 WL 3301027, at
*2 (E.D. Wis. Aug. 13, 2012) (explaining that a subpoena issued from the Eastern District of
Wisconsin but requiring production in the Eastern District of North Carolina is facially invalid);
U.S. S.E.C. v. Bravata, No. 1:11-MC-0006-SEB-MJD, 2011 WL 2133508, at *1 (S.D. Ind. May
27, 2011) (“[P]roduction is to be made . . . in Indianapolis, Indiana. Accordingly, . . . the
Southern District of Indiana would be the appropriate court to issue the subpoena.”).
While it is common for a party to offer to accept copies of the requested documents
outside the issuing district, the government has not made such an offer and therefore the
documents must be produced in accordance with Rule 45(a)(2)(c). See Schreiber Foods, 2012
WL 3301027, at *2. Moreover, the Court cannot simply modify the subpoena to require
production within the Southern District of Indiana because the defect is jurisdictional. Id.
Although the parties raise additional issues under the Touhy regulations that may arise again if a
new subpoena is issued, it is improper for the Court to address those issues at this time since the
Court lacks jurisdiction. Id. Therefore, the government’s motion to quash [Docket No. 52] is
granted and Plaintiff’s motion to compel [Docket No. 79] is denied. With respect to the related

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case Welch v. Eli Lilly, Case No. 1:11-cv-0891-LJM-TAB, in which the parties have filed
identical motions, the motion to quash [Docket No. 33] is granted and the motion to compel
[Docket No. 52] is denied.
DATED: 01/16/2013
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
Kevin W. Betz
BETZ & BLEVINS
[e-mail]
Sandra L. Blevins
BETZ & ASSOCIATES
[e-mail]
Ellen E. Boshkoff
FAEGRE BAKER DANIELS LLP - Indianapolis
[e-mail]
Benjamin C. Ellis
BETZ & BLEVINS
[e-mail]
Rozlyn M. Fulgoni-Britton
FAEGRE BAKER DANIELS LLP - Indianapolis
[e-mail]
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Joseph C. Pettygrove
FAEGRE BAKER DANIELS LLP - Indianapolis
[e-mail]
Matthew Louis Schmid
SANFORD HEISLER, LLP
[e-mail]

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