Johnson v. Simmons et al

Filing 103

ORDER denying 82 Motion for Contempt; denying 82 Motion to Compel; denying 87 Amended Motion for Contempt; denying 87 Amended Motion to Compel; finding as moot 90 Motion for Protective Order. Signed by Magistrate Judge Robert H. Walker on May 7, 2015. (King, Steve)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
VERA JOHNSON
VERSUS

PLAINTIFF
CIVIL ACTION NO. 1:13CV205-HSO-RHW

JASON B. SIMMONS

DEFENDANT
ORDER

Before the Court are various motions relating to Plaintiff's attempts to obtain a transcript
from the court reporting firm Yamaguchi, Obien, Magio Court Reporting & Video located in the
state of Washington: (1) Plaintiff's Motion for Contempt and to Compel (Doc. [82]); (2)
Plaintiff's Amended Motion for Contempt and to Compel (Doc. [87]); and (3) Defendant's
Motion for Protective Order (Doc. [90]).
Plaintiff filed a medical malpractice lawsuit against Defendant Dr. Jason B. Simmons.
Defendant retained Dr. Robert M. London as an expert witness. Dr. London previously offered
expert opinions in Newsome v. Mosquera, an unrelated case out of Washington state. Plaintiff
contends that the opinions contained in Dr. London's affidavit filed in Newsome seem to support
Plaintiff's arguments regarding Defendant's negligence and liability in the instant case. Plaintiff
seeks a copy of Dr. London's deposition transcript from the Newsome case so that she may use it
in cross-examination of Dr. London.
Plaintiff initially served the court reporting firm from the Newsome case with a subpoena
issued from the United States District Court for the Western District of Washington. Doc. [741]. The court reporting firm indicated that it would not produce the transcript without a court
order, citing standards of professional practice that require either consent of the parties or a court
order before the transcript could be produced. Doc. [74-2]. One of the parties to the Newsome

lawsuit did not consent to production of the transcript. Doc. [74-3]. Plaintiff then filed a motion
to compel in this Court. Doc. [74]. The Court denied without prejudice Plaintiff's motion to
compel on two grounds. Doc. [78]. First, the Court found that by operation of Rule 45(a)(2), the
subpoena should have issued from the Southern District of Mississippi rather than from the
Western District of Washington. Second, the Court found that it did not have the authority to
enforce a subpoena issued by the district court in Washington.
The Court finds that the instant motions to compel should be denied. Plaintiff's efforts to
obtain the transcript have run afoul of the 2013 amendments to Rule 45 regarding the issuance
and enforcement of subpoenas. Prior to the 2013 amendments, subpoenas to compel deposition
testimony or to compel production of documents from non-parties were issued by the court where
compliance was required. Martensen v. Koch, 301 F.R.D. 562, 586 (D. Colo. 2014). The issuing
court and the court of compliance were the same. Id. Rule 45(a)(2) now requires that "[a]
subpoena must issue from the court where the action is pending." Fed. R. Civ. P. 45(a)(2); see
S.E.C. v. Goldstone, 301 F.R.D. 593, 646 (D. N.M. 2014); Martensen, 301 F.R.D. at 585-86 (D.
Colo. 2014). Thus regardless of the place of compliance, the instant subpoena must issue from
the Southern District of Mississippi. However, if "[a] person commanded to produce documents
or tangible things" objects, "the serving party may move the court for the district where
compliance is required for an order compelling production or inspection." Rule 45(d)(2)(B)(i).
Hence, pursuant to the amended rule, even though the subpoena must issue from the court where
the action is pending, the court of compliance still presides over disputes concerning production
of the documents. See Martensen, 301 F.R.D. at 586. The amended rule further provides that
"[w]hen the court where compliance is required did not issue the subpoena, it may transfer a
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motion under this rule to the issuing court if the person subject to the subpoena consents or if the
court finds exceptional circumstances." Rule 45(f); Martensen, 301 F.R.D. at 586.
The latest subpoena has issued from the Southern District of Mississippi, as required by
Rule 45(a)(2), because it is the court where the action is pending. However, Plaintiff is
attempting to enforce the subpoena in the wrong court. It is not disputed that compliance is
required in the state of Washington. Accordingly, Plaintiff should have sought to compel
production in Washington as required by Rule 45(d)(2)(B)(i). See Martensen, 301 F.R.D. at 586.
At that point, the procedures laid out in Rule 45(f) would come into play. See Agincourt
Gaming, LLC v. Zynga, Inc., 2014 WL 4079555, at *4 (D. Nev. 2014); Moon Mountain Farms,
LLC v. Rural Community Insurance Co., 301 F.R.D. 426, 428-31 (N.D. Cal. 2014). Based on the
foregoing, the Court finds that Plaintiff's motions to compel and for contempt should be denied.
In light of the Court's ruling, Defendant's motion for protective order is found to be moot.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff's [82], [87] Motions for
Contempt and to Compel are DENIED.
IT IS FURTHER ORDERED that Defendant's [90] Motion for Protective Order is found
to be MOOT.
SO ORDERED, this the 7th day of May, 2015.

/s/

Robert H. Walker

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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