Bailey-Todd v. Washington University, The. et al

Filing 41

MEMORANDUM AND ORDER: IT IS HERBY ORDERED that Plaintiffs Motion to Quash Defendants Subpoena Duces Tecum Directed to Third Party Arizona State University is DENIED without prejudice to presentation in the United States District Court for the Dis trict of Arizona or as otherwise permitted in accordance with Federal Rule of Civil Procedure 45. (ECF No. 37). IT IS FURTHER ORDERED that Defendants motion for attorneys fees is DENIED. Signed by Magistrate Judge Terry I. Adelman on 3/3/2015. (KMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHANDRA BAILEY-TODD,
Plaintiff/Counterclaim Defendant,
v.
THE WASHINGTON
UNIVERSITY, et al.,
Defendants/Counterclaimants.

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Case No.: 4:14-CV-00384-TIA

MEMORANDUM AND ORDER
Plaintiff/Counterclaim Defendant Chandra Bailey-Todd (“Plaintiff”) brings this
employment discrimination action against Defendants/Counterclaimants (collectively,
“Defendants”), The Washington University (“the University”) and its employee, Cynthia
Williams (“Williams”); arising out of Plaintiff’s employment with the University. Now before
the Court is Plaintiff’s Motion to Quash Defendants’ Subpoena Duces Tecum Directed to Third
Party Arizona State University. (ECF No. 37). For the reasons set forth below the motion to
quash will be denied.
On February 20, 2015, Defendant directed a document subpoena to Plaintiff’s current
employer, Arizona State University (“ASU”), seeking documents relating to Plaintiff’s payroll
and benefits records and Plaintiff’s personnel file, including her employment application,
performance reviews and evaluations, disciplinary action records and related documents and
correspondence. On February 22, 2015, Plaintiff moved to quash the subpoena asserting that the
requests are cumulative and burdensome to ASU. In addition, Plaintiff asserts unspecified
privilege and privacy concerns as well a threat to her current employment.
In response, Defendants contend that Plaintiff’s motion is procedurally defective and that
even if the deficiencies are overlooked, the substantive objections Plaintiff raises to the
production of the documents lack merit. Defendants also seek to recover the attorney’s fees they
have expended in opposing the motion.
Under the Court’s Local Rule 37-3.04, before filing motion related to a discovery dispute,
the party filing the motion is required to attempt to meet and confer with the opposing party in
order to resolve the dispute. E.D. Mo. L. R. 37-3.04 (A). In this case Plaintiff does not certify

and the record nowhere reflects that she attempted to comply with the “meet and confer”
requirement of Local Rule 37-3.04 before filing her motion to quash. A party’s failure to
comply with Local Rule 37-3.04, requires the Court to dismiss the motion without prejudice
pending a certification of such compliance. E.D. Mo. L. R. 37-3.04 (A). However, as discussed
below, even if Plaintiff had complied with Local Rule, the Court would be forced to deny the
motion to quash because the Court lacks authority under the Federal Rules of Civil Procedure to
entertain the motion.
Pursuant to the Federal Rule of Civil Procedure Rule 45, 1 absent consent by the
subpoenaed party to a transfer or a finding of extraordinary circumstances, a motion to quash
must be brought in “the court for the district where compliance is required.” Fed. R. Civ. P.
45(d)(3), (f). Plaintiff neither alleges nor demonstrates ASU’s consent to a transfer or
extraordinary circumstances warranting such a transfer. For that reason, the Court concludes that
it lacks authority under Rule 45(d) to consider this motion. See AngioScore, Inc. v. TriReme
Med., Inc., No. 12-CV-03393-YGR, 2014 WL 6706873, at *1 (N.D. Cal. Nov. 25, 2014).
Moreover, as Plaintiff correctly asserts, even if the Court had authority to consider the
motion, Plaintiff lacks standing to seek an order quashing the subpoena unless she can raise a
legitimate claim of privilege. See Mayhall v. Berman & Rabin, P.A., No. 4:13- CV-00175-AGF,
2013 WL 4496279, at *3 (E.D. Mo. Aug. 21, 2013) (holding that a party lacks standing to seek
an order quashing a subpoena where there is no privilege asserted and where any burden related
to the response would be felt by a third party).
Therefore, for the reasons set forth above, the Court will deny the motion to quash
without prejudice to its proper presentation in the United States District Court for the District of
Arizona or as otherwise permitted in accordance with Federal Rule of Civil Procedure 45.
Accordingly,
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Rule 45 was amended in 2013 and the amended version of the Rule requires that subpoenas
issue from the court where the action is pending. Fed. R. Civ. P. 45(a)(2). The prior version of
the Rule gave the issuing court jurisdiction over motions to quash subpoenas, see Fed. R. Civ. P.
Rule 45(c)(3) (2012), but the current version provides that it is “the court for the district where
compliance is required” has jurisdiction to quash or modify subpoenas. See Fed. R. Civ. P.
45(d)(3) (2014). Thus, ‘“[u]nder the current version of the Rule, when a motion to quash a
subpoena is filed in a court other than the court where compliance is required, that court lacks
jurisdiction to resolve the motion.’” AngioScore, Inc. v. TriReme Med., Inc., No. 12-CV-03393YGR, 2014 WL 6706873, at *1 (N.D. Cal. Nov. 25, 2014) (quoting Agincourt Gaming, LLC v.
Zynga, Inc., No. 14–CV–0708, 2014 WL 4079555, at *3 (D. Nev. Aug. 15, 2014)).
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IT IS HERBY ORDERED that Plaintiff’s Motion to Quash Defendant’s Subpoena
Duces Tecum Directed to Third Party Arizona State University is DENIED without prejudice
to presentation in the United States District Court for the District of Arizona or as otherwise
permitted in accordance with Federal Rule of Civil Procedure 45. (ECF No. 37).
IT IS FURTHER ORDERED that Defendant’s motion for attorney’s fees is DENIED.

Dated this

3rd

Day of March, 2015.

Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

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