Berg v. Johnson & Johnson et al

Filing 125

ORDER granting 109 Motion to Quash; denying as moot 114 Motion for Protective Order. Signed by Chief Judge Karen E. Schreier on 9/19/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEANE BERG,
Plaintiff,
vs.
JOHNSON & JOHNSON;
JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.;
LUZENAC AMERICA, INC.;
JOHN DOES/JANE DOES 1-30;
UNKNOWN BUSINESSES
AND/OR CORPORATIONS A-Z,
Defendants.

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09-4179-KES

ORDER GRANTING EXPONENT’S
MOTION TO QUASH

Plaintiff, Deane Berg, and defendants are involved in a lawsuit that is
pending in the United States District Court for the District of South Dakota.
Berg served a Rule 30(b)(6) subpoena on nonparty Exponent, Inc., directing
Exponent’s corporate representative to appear for a deposition to be taken in
Ridgeland, Mississippi. Docket 111-1. Exponent moves to quash the subpoena
in part because it is invalid. Berg opposes the motion to quash the subpoena.
Docket 121. The motion to quash is granted.
BACKGROUND
On December 4, 2009, Berg brought suit against multiple defendants in
the District of South Dakota alleging numerous claims including strict
products liability, negligence, breach of warranties, civil conspiracy, acting in
concert, and gross negligence. Docket 1. On August 1, 2012, Berg issued a
30(b)(6) subpoena directed to nonparty Exponent, Inc., of Alexandria, Virginia.

The subpoena directed the corporate representative of Exponent to attend a
deposition in Ridgeland, Mississippi, and to produce certain described
documents. The subpoena was signed by Berg’s attorney and was issued under
the authority of the United States District Court for the “Southern District of
South Dakota.” Docket 111-1.
On August 15, 2012, Exponent told Berg that its subpoena was invalid
because it was not issued from the court for the district in which the deposition
is to be taken. Berg and Exponent were not able to resolve the issue. On
August 22, 2012, Exponent moved to quash the subpoena. Docket 109. Later
that day, defendant Luzenac America, Inc., moved for a protective order to
preclude the deposition of Exponent. Docket 114. Berg opposes both motions.
DISCUSSION
Federal Rule of Civil Procedure 45 addresses the issuance of subpoenas.
Rule 45(a)(1)(A)(i) requires the subpoena to state the court from which it is
issued. A subpoena must issue “for attendance at a deposition, from the court
for the district where the deposition is to be taken[.]” Fed. R. Civ. P. 45(a)(2)(B).
Here the subpoena appears to specify that it is being issued by the United
States District Court for the District of South Dakota, but it is commanding
appearance of a nonparty to attend a deposition in the state of Mississippi.
The language of Rule 45 is clear and requires that a subpoena must be issued
by the court where the deposition is to be taken. See, e.g., Kupritz v. Savannah
College of Art & Design, 155 F.R.D. 84, 88 (E.D. Pa. 1994); U.S. Bancorp
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Equipment Finance, Inc. v. Babylon Transit, Inc., 270 F.R.D. 136, 139 (E.D.N.Y.
2010). Therefore, the court finds that the subpoena is void on its face and
unenforceable. See id. (holding that subpoena issued from improper court was
invalid and unenforceable); CSX Transp., Inc. v. Superior Grain LLC, 2009 WL
948660 (D.N.D. 2009) (holding that subpoena issued from improper court was
void).
Berg argues that the scope of the subpoena should be modified rather
than quashed. But because the subpoena is void and invalid, this court is
without authority to modify an unenforceable subpoena. As a result, the
subpoena is quashed.
CONCLUSION
Berg failed to properly issue a subpoena under the requirements of Fed.
R. Civ. P. 45. Therefore, the subpoena is invalid and cannot be enforced.
Accordingly, it is
ORDERED that Exponent Inc.’s motion to quash (Docket 109) is granted.
IT IS FURTHER ORDERED that Luzenac America’s motion for a
protective order (Docket 114) is denied as moot.
Dated September 19, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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