Johnson v. Simmons et al

Filing 78

ORDER denying 74 Motion to Compel Court Reporting Firm. Signed by Magistrate Judge Robert H. Walker on February 13, 2015. (King, Steve)

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

PLAINTIFF

VERSUS

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

JASON B. SIMMONS

DEFENDANT
ORDER DENYING MOTION TO COMPEL

Before the Court is Plaintiff Vera Johnson's motion to compel compliance with a
subpoena issued to Yamaguchi, Obien, Magio Court Reporting & Video (Yamaguchi). Doc.
[74]. 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
as part of her cross-examination of Dr. London.
Plaintiff 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. [74-1]. The
subpoena directed that Yamaguchi produce a copy of the Newsome transcript at Plaintiff's
counsel's office in Ridgeland, Mississippi. Id. Yamaguchi 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 does not consent to production of the transcript. Doc. [743]. Hence Plaintiff filed the instant motion to compel. Defendant opposes the motion to compel

citing privacy concerns of the parties in the Newsome lawsuit. Doc. [75].
The Court finds that the motion to compel should be denied without prejudice on
procedural grounds. "A subpoena must issue from the court where the action is pending." Fed.
R. Civ. P. 45(a)(2); see Martensen v. Koch, 595 F.R.D. 562, 585-86 (D. Colo. 2014). In this
case, the subpoena issued from the United States District Court for the Western District of
Washington. Doc. [74-1]. By operation of Rule 45(a)(2), it should have issued from the
Southern District of Mississippi. Not only did the subpoena issue from the wrong court, but
Plaintiff is requesting that the United States District Court for the Southern District of
Mississippi enforce a subpoena that it did not issue. This Court does not have the authority to
enforce the subpoena issued in Washington. See In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir.
1998)(“only the issuing court has the power to act on its subpoenas”); Baxter Travenol Lab v.
LeMay, 89 F.R.D. 410, 418 (S.D. Ohio 1981)(“it would be improper for this Court to attempt to
enforce a subpoena issued by a different court against a person who is not a party to the action
pending herein.”).
IT IS THEREFORE ORDERED AND ADJUDGED that the motion to compel is
DENIED without prejudice.
SO ORDERED, this the 13th day of February, 2015.

/s/

Robert H. Walker

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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