CSS Inc v. Herrington et al
Filing
12
MEMORANDUM OPINION AND ORDER: The Court ORDERS, under Federal Rule of Civil Procedure 45(f), that CSS, Inc.'s 1 Motion to Quash Third-Party Subpoenas and Motion For Protective Order and Kofile Technologies Group, Inc. and Kofile Technologies , Inc.'s 3 Joinder in CSS, Inc.'s Motion to Quash Third-Party Subpoenas and Motion for Protective Order are transferred and remitted to the Charleston Division of the United States District Court of the Southern District of West Virginia. The Court CANCELS the oral argument set for Wednesday, October 25, 2017, at 10:00 a.m., and the Clerk of the Court is directed to close this matter after transfer. (Ordered by Magistrate Judge David L. Horan on 10/20/2017) (rekc)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CSS, INC.,
Plaintiff,
V.
CHRISTOPHER HERRINGTON,
GENE YOHO, and COMPILED
TECHNOLOGIES, LLC,
Defendants.
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No. 3:17-mc-71-N-BN
MEMORANDUM OPINION AND ORDER
CSS, Inc., the plaintiff in CSS, Inc. v. Christopher Herrington, Gene Yoho and
Compiled Technologies, LLC, Civil Action No. 2:16-cv-1762, pending in the United
States District Court for the Southern District of West Virginia (the “West Virginia
case”), has filed a Motion to Quash Third-Party Subpoenas and Motion For Protective
Order, see Dkt. No. 1 (the “Motion to Quash”), under Federal Rules of Civil Procedure
45(d)(3) and 26(c) as to Federal Rule of Civil Procedure 45 subpoenas served by the
defendants in the West Virginia case – Compiled Technologies LLC, Christopher
Herrington, and Gene Yoho (collectively, “Defendants”) – on non-parties Kofile
Technologies Group, Inc. and Kofile Technologies, Inc. (collectively, the “Kofile
Entities”), in connection with the West Virginia case (the “Subpoenas”). The Kofile
Entities have joined in the Motion to Quash. See Dkt. No. 3 (the “Motion to Join”).
United States District Judge David C. Godbey has referred the Motion to Quash
and the Motion to Join to the undersigned United States magistrate judge for hearing,
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if necessary, and determination under 28 U.S.C. § 636(b). See Dkt. No. 4.
Defendants filed a response, see Dkt. No. 7, and CSS and the Kofile Entities filed
a reply, see Dkt. No. 10. Although originally scheduled for October 25, 2017, the Court
determines that oral argument is not necessary.
Background
The Subpoenas were properly issued by the United States District Court for the
Southern District of West Virginia under Federal Rule of Civil Procedure 45(a), as the
court where the West Virginia case is pending. See FED. R. CIV. P. 45(a)(2) (“Issuing
Court. A subpoena must issue from the court where the action is pending.”).
They command the Kofile Entities to produce documents to “Stephen D. Annand,
Esq. / E-mail: sda@ramlaw.com c/o Mark E. Golman, Strasburger Attorneys at Law 901
Main Street, Suite 6000, Dallas, TX 75202.” Dkt. Nos. 2-1 & 2-2. Mr. Annand is
Defendants’ counsel in the West Virginia case.
The Subpoenas list the persons to whom they are directed as “Kofile
Technologies Group, Ine. (Attn: William D. Oates); 6300 Cedar Springs Road Dallas,
Texas 75235,” Dkt. No. 2-1, and “Kofile Technologies, Inc. (Attn: William D. Oates);
6300 Cedar Springs Road Dallas, Texas 75235,” Dkt. No. 2-2.
Defendants also filed in the West Virginia case a Notice of Intent to Serve
Subpoena Duces Tecum on Kofile Technologies Group, Inc., see Dkt. No. 7-1, and a
Notice of Intent to Serve Subpoena Duces Tecum on Kofile Technologies, Inc., see Dkt.
No. 7-2 (collectively, the “Notices of Intent”). These documents explain that “[t]he
subpoenaed information is to be received on or before September 18, 2017, by way of
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electronic means to Stephen D. Armand at sda@ram1aw.com, or if a hard copy is
preferred, the material may be delivered to Mr. Armand c/o of the following attorney
in Dallas, Texas at the following address: Mark E. Golman, Strasburger & Price, LLP,
901 Main Street, Suite 6000, Dallas, Texas 75202. Mr. Golman can be reached at:
214-651-4478.” Dkt. Nos. 7-1 & 7-2.
CSS also explains that “Defendants filed a motion to compel production
pursuant to the subpoenas in the Southern District of West Virginia” and that the
Kofile Entities “requested that Defendants withdraw the motion because it was filed
in the wrong court pursuant to [Federal Rule of Civil Procedure] 45(d)(2)(B)(i) and the
Kofile [Entities] are not parties to the [West Virginia case]” but that “Defendants
refused to withdraw the motion.” Dkt. No. 1 at 5.
Defendants report that they “are currently pursuing a Motion to Compel for
Discovery Deficiencies in the Southern District of West Virginia against CSS for
responsive emails and other documents that Defendants believe CSS has failed to
produce thus far” and that the Subpoenas served on the Kofile Entities “fall under the
umbrella of the above-referenced Defendants’ Motion to Compel for Discovery
Deficiencies.” Dkt. No. 7 at 4; see also id. at 6. “Defendants acknowledge that United
States District Judge Joseph R. Goodwin of the issuing Court recently denied a motion
by the Defendants to extend discovery to October 15, 2017,” but “Defendants maintain
that the Kofile subpoenas and corresponding motions remain timely,” where “Kofile is
the parent corporation of Plaintiff CSS, Inc. in the underlying litigation and is
inextricably linked to the underlying litigation” and “Defendants are currently
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pursuing a Motion to Compel for Discovery Deficiencies in the Southern District of
West Virginia against CSS for responsive emails and other documents that Defendants
believe CSS has failed to produce thus far.” Id. at 4.
Legal Standards
Under Federal Rule of Civil Procedure 45, a party may serve a subpoena
commanding a nonparty “to whom it is directed to ... produce designated documents,
electronically stored information, or tangible things in that person’s possession,
custody, or control.” FED. R. CIV. P. 45(a)(1)(A)(iii). Under Rule 45(c), “[a] subpoena may
command: (A) production of documents, electronically stored information, or tangible
things at a place within 100 miles of where the person resides, is employed, or
regularly transacts business in person.” FED. R. CIV. P. 45(c)(2)(A). And, under Rule
45(a)(4), “[i]f the subpoena commands the production of documents, electronically
stored information, or tangible things or the inspection of premises before trial, then
before it is served on the person to whom it is directed, a notice and a copy of the
subpoena must be served on each party.” FED. R. CIV. P. 45(a)(4).
Rule 45(d)(2)(B) requires that “[a] person commanded to produce documents or
tangible things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing or sampling any or
all of the materials or to inspecting the premises – or to producing electronically stored
information in the form or forms requested” – and that “[t]he objection must be served
before the earlier of the time specified for compliance or 14 days after the subpoena is
served.” FED. R. CIV. P. 45(d)(2)(B).
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“If an objection is made, the following rules apply: (i) At any time, on notice to
the commanded person, the serving party may move the court for the district where
compliance is required for an order compelling production or inspection. (ii) These acts
may be required only as directed in the order, and the order must protect a person who
is neither a party nor a party’s officer from significant expense resulting from
compliance.” FED. R. CIV. P. 45(d)(2)(B).
The target of a Rule 45 subpoena can also file a motion to quash or modify the
subpoena. Under Federal Rule of Civil Procedure 45(d)(3)(A), “[o]n timely motion, the
court for the district where compliance is required must quash or modify a subpoena
that (i) fails to allow a reasonable time to comply; (ii) requires a person to comply
beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of
privileged or other protected matter, if no exception or waiver applies; or (iv) subjects
a person to undue burden.” FED. R. CIV. P. 45(d)(3)(A).
The moving party has the burden of proof. See Wiwa v. Royal Dutch Petroleum
Co., 392 F.3d 812, 818 (5th Cir. 2004); Williams v. City of Dallas, 178 F.R.D. 103, 109
(N.D. Tex. 1998). “Generally, modification of a subpoena is preferable to quashing it
outright.” Wiwa, 392 F.3d at 818.
On a motion asserting undue burden, “[t]he moving party has the burden of
proof to demonstrate ‘that compliance with the subpoena would be unreasonable and
oppressive.’” Wiwa, 392 F.3d at 818 (quoting Williams, 178 F.R.D. at 109 (internal
quotation marks omitted)). “The moving party opposing discovery must show how the
requested discovery was overly broad, burdensome, or oppressive by submitting
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affidavits or offering evidence revealing the nature of the burden.” Andra Group, LP
v. JDA Software Group, Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015).
“Whether a burdensome subpoena is reasonable must be determined according
to the facts of the case, such as the party’s need for the documents and the nature and
importance of the litigation.” Wiwa, 392 F.3d at 818 (internal quotation marks and
footnote omitted). “To determine whether the subpoena presents an undue burden, [the
Court] consider[s] the following factors: (1) relevance of the information requested; (2)
the need of the party for the documents; (3) the breadth of the document request; (4)
the time period covered by the request; (5) the particularity with which the party
describes the requested documents; and (6) the burden imposed.” Id. (footnote omitted).
“Further, if the person to whom the document request is made is a non-party, the court
may also consider the expense and inconvenience to the non-party.” Id. (footnote
omitted).
The Court also “may find that a subpoena presents an undue burden when the
subpoena is facially overbroad.” Id. (footnote omitted). “Courts have found that a
subpoena for documents from a non-party is facially overbroad where the subpoena’s
document requests seek all documents concerning the parties to [the underlying]
action, regardless of whether those documents relate to that action and regardless of
date; [t]he requests are not particularized; and [t]he period covered by the requests is
unlimited.” Am. Fed’n of Musicians of the U.S. & Canada v. SKODAM Films, LLC, 313
F.R.D. 39, 45 (N.D. Tex. 2015) (internal quotation marks omitted).
Federal Rule of Civil Procedure 45(f) provides that, “[w]hen the court where
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compliance is required did not issue the subpoena, it may transfer a motion under this
rule to the issuing court if the person subject to the subpoena consents or if the court
finds exceptional circumstances.” FED. R. CIV. P. 45(f).
Where the person subject to the subpoena consents to transfer, a party seeking
transfer need not show – and the Court need not find – extraordinary circumstances
under Rule 45(f). See FED. R. CIV. P. 45(f); FED. R. CIV. P. 45(f), advisory committee
notes (2013 amendments); San Juan Cable LLC v. DISH Network LLC, Civ. A. No. 14mc-00261-RM-MJW, 2015 WL 500631, at *1 (D. Colo. Jan. 23, 2015). But, if the person
subject to the subpoena does not consent to transfer, the Court may only transfer a
Rule 45 motion to the issuing court if exceptional circumstances exist. See Orix, 2016
WL 3926507, at *2. As a general matter, “the proponent of transfer bears the burden
of showing that such circumstances are present.” FED. R. CIV. P. 45(f), advisory
committee notes (2013 amendments). But “Rule 45(f) does not require that a motion
to transfer be filed, and the Court may sua sponte order transfer where appropriate.”
Orix USA Corp. v. Armentrout, No. 3:16-mc-63-N-BN, 2016 WL 3926507, at *2 (N.D.
Tex. July 21, 2016).
The Advisory Committee Notes provide the following guidance as to when
transfer of a subpoena-related motion is appropriate:
The prime concern should be avoiding burdens on local nonparties subject
to subpoenas, and it should not be assumed that the issuing court is in a
superior position to resolve subpoena-related motions. In some
circumstances, however, transfer may be warranted in order to avoid
disrupting the issuing court’s management of the underlying litigation,
as when the court has already ruled on issues presented by the motion or
the same issues are likely to rise in discovery in many districts. Transfer
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is appropriate only if such interests outweigh the interests of the
nonparty served with the subpoena in obtaining local resolution of the
motion.
FED. R. CIV. P. 45(f), advisory committee notes (2013 amendments). “In determining
whether ‘exceptional circumstances’ exist, courts consider several factors, including the
complexity, procedural posture, duration of pendency, and the nature of the issues
pending before, or already resolved by, the issuing court in the underlying litigation.”
Orix, 2016 WL 3926507, at *4 (internal quotation marks omitted).
Discussion
CSS and the Kofile Entities assert that this Court is the court for the district
where compliance is required for purposes of the Rule 45(d)(3) Motion to Quash
because the Subpoenas “order production of the documents at issue at the offices of
Strasburger & Price, 901 Main Street, Suite 6000, Dallas, TX 75202.” Dkt. No. 1 at 3,
5. They assert that the Subpoenas “are unduly burdensome and improper because (1)
Defendants served the subpoenas over four months after the discovery period ended
in the West Virginia [case], and (2) Defendants seek to circumvent discovery rules and
deadlines in the lawsuit by requiring CSS to search for and produce documents
through untimely subpoenas served on CSS’s parent and affiliate” and “therefore
request[] that the Court quash the [Subpoenas] or issue a protective order regarding
the material sought through the [Subpoenas]” “to prohibit[] Defendants from obtaining
discovery sought through the subpoenas served on Kofile Technologies Group, Inc. and
Kofile Technologies, Inc.” Id. at 1-2, 8-9.
Defendants respond that the primary place for compliance for the Subpoenas
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was in West Virginia because the Notices of Intent for the Subpoenas “clearly state
that: ‘The subpoenaed information is to be received on or before September 18, 2017,
by way of electronic means to Stephen D. Annand at sda@ramlaw.com, or if a hard
copy is preferred, the material may be delivered to Mr. Annand c/o of the following
attorney in Dallas, Texas at the following address: Mark E. Golman, Strasburger &
Price, LLP, 901 Main Street, Suite 6000, Dallas, Texas 75202.’” Dkt. No. 7 at 1.
Defendants further contend that “Kofile regularly transacts business in West Virginia
and thus may be required to comply with a subpoena under Rule 45 within 100 miles
of where their business activities occur” and that “[t]he primary compliance requested
by the subpoenas duces tecum was electronic, to Defendants’ lead counsel Stephen D.
Annand, Esquire. Mr. Annand and his offices are in Charleston, WV, less than 100
miles from Parkersburg where Kofile was operating the [CSS] through its Kofile, Inc.
(‘Kofile’) employee manager Bert Auburn from the time of its acquisition of CSS in
June 2014 through early 2016, and who was followed as CSS manager by another
Kofile employee, Tim Mortenson.” Id. at 2.
Defendants therefore contend that these motions should properly be filed in the
West Virginia case because “there is no reason to divest the issuing Court of the
Southern District of West Virginia of control over this discovery matter, as it is linked
to other pending discovery disputes between the parties in the litigation.” Id. at 7 at
3.
But, alternatively, Defendants argue that, “even if it were determined that
because the alternative place of compliance for the [Subpoenas] is Dallas, Texas, this
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Court would normally be the proper venue for resolution of the objections to the
subpoenas under Rule 45, ‘exceptional circumstances’ justify a transfer of CSS’s Motion
to Quash to the issuing Court” presiding over the West Virginia case.” Id.
I.
This is the court for the district where compliance is required.
Defendants’ response and the Subpoenas themselves raise the threshold issue
of whether the Motion to Quash is properly before this Court. Defendants point to their
Notices of Intent filed in the West Virginia case as required by Rule 45(a)(4). But those
documents, while required by Rule 45 before the Subpoenas could be served on the
Kofile Entities, are not subpoenas and do not themselves require compliance by the
Kofile Entities.
Determining which court is the court for the district where compliance is
required requires looking to the Subpoenas themselves and Rule 45’s relevant
provisions.
Starting with the statute, Rule 45(a)(1)(A) directs that “[e]very subpoena must:
... (iii) command each person to whom it is directed to do the following at a specified
time and place: attend and testify; produce designated documents, electronically stored
information, or tangible things in that person’s possession, custody, or control; or
permit the inspection of premises.” FED. R. CIV. P. 45(a)(1)(A)(iii). Rule 45(c) is titled
“Place of Compliance” and provides, in part, that “[a] subpoena may command: (A)
production of documents, electronically stored information, or tangible things at a place
within 100 miles of where the person resides, is employed, or regularly transacts
business in person.” FED. R. CIV. P. 45(c)(2)(A). Rule 45(d)(2)(A) explains that “[a]
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person commanded to produce documents, electronically stored information, or tangible
things, or to permit the inspection of premises, need not appear in person at the place
of production or inspection unless also commanded to appear for a deposition, hearing,
or trial.” FED. R. CIV. P. 45(d)(2)(A). And Rule 45(d)(3)(A) provides that, “[o]n timely
motion, the court for the district where compliance is required must quash or modify
a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to
comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure
of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects
a person to undue burden.” FED. R. CIV. P. 45(d)(3)(A).
Under Rule 45, then, the place of compliance must be a physical “place” subject
to “geographical limits” and capable of being measured according to mileage.
This Court takes the position that, for purposes of a Rule 45(d)(2) or 45(d)(3)
motion, the court or district “where compliance is required” is determined by the
location or “place” for compliance identified on the subpoena as required by Rule
45(a)(1)(A)(iii). See, e.g., Buc-ee’s, Ltd. v. Shepherd Retail, Inc., No. 3:17-mc-1-N-BN,
2017 WL 86143, at *1 (N.D. Tex. Jan. 10, 2017); Sorrell et al v. Frito-Lay N. Am., No.
3:16-mc-34-B, Memorandum Opinion & Order, Dkt. No. 18 at 3 (N.D. Tex. Apr. 21,
2016); U.S. Risk Ins. Grp., Inc. v. U.S. Risk Mgmt., LLC, No. 3:11-cv-2843-M-BN, 2014
WL 4055372, at *1 (N.D. Tex. Aug. 15, 2014).
Other court decisions disagree, concluding instead, based in part on discussions
in the Advisory Committee Notes, that “the place where compliance is required
depends on where the recipient resides or works,” treating a proper “place of
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compliance” under Rule 45(c) as determinative in identifying the district in which
subpoena-related motions and applications are to be made. Raap v. Brier & Thorn,
Inc., No. 17-mc-3001, 2017 WL 2462823, at *2 (C.D. Ill. July 7, 2017).
But that approach requires a district court in which a Rule 45(d)(3) motion to
quash or a Rule 45(d)(2) motion to compel is filed to first resolve a substantive
geographical limits issue under Rules 45(c) simply to decide if it is the court with
authority to decide a Rule 45(d)(2) or 45(d)(3) motion – including a Rule 45(d)(3)(ii)
motion to quash for violating Rule 45(c) – in the first place.
Put another way, a subpoena’s listing a place of compliance that violates Rule
45(c)’s requirements is a ground for quashing or modifying the subpoena. See FED. R.
CIV. P. 45(d)(3)(A)(ii). But, consistent with this Court’s understanding of how to
determine the court or district “where compliance is required,” a court in the district
encompassing that improper place of compliance can properly make that ruling on a
Rule 45(d)(3)(A)(ii) motion as the court for the district where compliance is – whether
properly or not – required on the face of the subpoena, and does so consistent with Rule
45’s text and structure as well as the practical realities that courts presented with
subpoena-related motions and applications face.
After all, while “[a]lthough Rule 45(a)(1)(A)(iii) permits the subpoena to direct
a place of compliance, that place must be selected under Rule 45(c),” FED. R. CIV. P.
45(f), advisory committee notes (2013 amendments), the place of compliance is the one
directed by the subpoena unless and until a court rules otherwise on a motion under
Rule 45(d). At the time of deciding where such a motion must be filed, then, the place
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named in the subpoena as required by Rule 45(a)(1)(A)(iii) is the place “where
compliance is required.” This is so even if the subpoenaed non-party has objected based
on Rule 45(c) to a subpoena’s named place of compliance, because the determination
that the subpoenaed non-party and not the subpoenaing party has the better of a Rule
45(c) dispute must await decision on a Rule 45(d)(2) or 45(d)(3) motion.
The Court understands the concern that Rule 45’s “purpose of protecting
nonparties is defeated if a party could demand compliance in a location more than 100
miles from where the nonparty resides, is employed, or regularly transacts business
in person and still require the nonparty to adjudicate a dispute over that subpoena in
a distant forum.” Raap, 2017 WL 2462823, at *3. And a subpoenaed person could
decide where to file a Rule 45(d)(3) motion to quash or modify based on where the
person will assert that he, she, or it resides, is employed, or regularly transacts
business in person.
But Rule 45(d)(3)(A)(ii) motions to quash often are filed in the court
corresponding to the improper place of compliance stated in the subpoena. See, e.g.,
HCAPS Conroe Affiliation Inc. v. Angelica Textile Servs. Inc., No. 3:15-mc-60-N-BN,
2015 WL 3867923, at *3-*4 (N.D. Tex. June 22, 2015). And a subpoenaing party can
always be expected to file a Rule 45(d)(2) motion to compel in the court for the district
encompassing the place of compliance that the party listed on the subpoena. On those
motions, notwithstanding any concerns with requiring a nonparty to adjudicate a
dispute over a subpoena in a distant forum, the court addressing the motion to compel
will have no way of dependably making the fact-intensive determination whether the
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subpoena’s stated place of compliance is within 100 miles of where the subpoenaed
person resides, is employed, or regularly transacts business in person without hearing
from the subpoenaed person. See, e.g., U.S. Risk, 2014 WL 4055372, at *1 (“But, while
C. Jim Romig may reside and work more than 100 miles from Dallas, Texas, there is
no evidence directed to the question whether he regularly conducts business in Dallas,
where he is directed to produce the documents. The Court simply does not know the
answer to that question....”). It is at the least impractical for a court to be required to
formally decide if the nonparty or the subpoenaing party wins a Rule 45(c) issue on a
Rule 45(d) motion in order to determine whether the court actually can decide which
side prevails on the motion on that or any other issue.
In any event, an email address does not qualify as a location or place where
compliance is required under Rule 45, although the subpoenaing party and the
subpoenaed person could agree to production by electronic means. Accord FED. R. CIV.
P. 45(f), advisory committee notes (2013 amendments) (“Under the current rule, parties
often agree that production, particularly of electronically stored information, be
transmitted be electronic means. Such arrangements facilitate discovery, and nothing
in these amendments limits the ability of parties to make such arrangements.”). At
least where the parties have not so agreed, a subpoena that provides only an email
address arguably violates Rule 45(a)(1)(A)(iii)’s requirement to “command each person
to whom it is directed to do the following at a specified ... place.” FED. R. CIV. P.
45(a)(1)(A)(iii). It seems that, in such an instance, a court faced with a Rule 45(d)(2)
or 45(d)(3) motion could take appropriate action on the motion based on the
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understanding that the subpoena is simply not a valid and enforceable subpoena. Cf.
Paso Del Norte Motors, LP v. Kia Motors of Am., Inc., No. 315-cv-2672-M, 2015 WL
4939948, at *2 (N.D. Tex. Aug. 19, 2015) (“A subpoena that violates Rule 45(a)(2)’s
requirement is facially invalid and cannot be enforced by the Court notwithstanding
that a violation of Rule 45(a) (2) is not a ground for quashing or modification listed in
Rule 43(d)(3). The subpoena is simply not a valid subpoena, and, even if this Court
otherwise had some basis or authority to address this subpoena under Rule 45, the
Court would have no authority to enforce it by an order granting a motion to compel
under Rule 45(d) or for contempt under Rule 45(g).”).
Alternatively, a court could look to the physical location listed for the person to
whom a subpoena is directed to determine which district covers the place where
compliance is required and therefore which court can hear and decide a subpoenarelated motion. But, in an age of mobile devices, this Court cannot adopt Defendants’
assumption that, where an email address is provided, the place where compliance is
required – understood by Defendants as the place where the electronic transmission
will actually be received over email – is the office address of the attorney whose email
is listed on a subpoena. Given the realities of electronically transmitting and receiving
information, if only an email address is provided for compliance on a subpoena and a
court is left with no good choices for deciding which is the district where compliance
is required, a more plausible assumption seems to be that the subpoenaed person
would comply by transmitting the subpoenaed information from the location where
that person works or resides as listed on the subpoena. This approach, too, has the
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virtue of requiring the party seeking to file a motion to quash or compel and the court
reviewing such a motion in the first instance to look only to the face of the subpoena
– and not to determine where the subpoenaed party actually resides or works in light
of the 100-mile geographical limit – to ascertain which court Rule 45 authorizes to hear
and decide the motion. Of course, if the subpoena lists only an email address for the
subpoenaed person, that raises a separate, threshold issue of whether the subpoena
was personally delivered as Rule 45(b)(1) requires. See Whitley v. Pinnacle
Entertainment, Inc., Civ. A. No. 15-595-BAJ-RLB, 2016 WL 6154938, at *2-*3 (M.D.
La. Oct. 21, 2016); Bergeron v. Great West Cas. Co., Civ. A. No. 14-13, 2015 WL
5307685, at *3 (E.D. La. Sept. 9, 2015); Boze Memorial, Inc. v. Travelers Lloyds Ins.
Co.,No. 3:12-cv-669-P, 2013 WL 5299278, at *2-*4 (N.D. Tex. Sept. 20, 2013).
Fortunately, here, the Subpoenas list a physical address for a law office in
Dallas, Texas as the place of compliance – which, for good measure, the Kofile Entities
do not dispute complies with Rule 45(c)(2)(A). That the Notices of Intent may have
communicated to parties in the West Virginia case – including CSS but not the Kofile
Entities – that Defendants’ preference was electronic transmission to Mr. Annand’s
email does not change what the face of the Subpoenas themselves direct.
Here, the court for the district where compliance with the Subpoenas is required
is the Dallas Division of the Northern District of Texas, and CSS properly filed its
Motion to Quash in this Court under Rule 45(d)(3).
II.
Transfer is appropriate under Federal Rule of Civil Procedure 45(f).
The parties do not see eye to eye on where the Motion to Quash should be
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decided, and the Court has carefully considered the argument for and against a Rule
45(f) transfer, including the Kofile Entities’ assertions that transfer is inappropriate
where they “maintain their principal places of business in Dallas, their officers and
directors are located in Dallas, and any physical documents responsive to the
subpoenas are located in Dallas”; “counsel for the Kofile [E]ntities on the Motion [to
Quash] is located in Dallas”; and, “[a]s non-parties to the Lawsuit based in Dallas, the
Kofile [E]ntities have a substantial interest in resolving this dispute in this Court
rather than in West Virginia.” Dkt. No. 10 at 10 (footnote omitted).
After considering all the arguments for and against finding exceptional
circumstances justifying transfer, the Court is convinced that Defendants have met
their burden of showing that transfer under Rule 45(f) is appropriate here based on
exceptional circumstances.
The Motion to Quash is based on CSS’s and the Kofile Entities’ assertion that
the Subpoenas are untimely because the discovery deadline in the West Virginia case
has passed. The presiding judge in that case recently denied a motion to extend the
deadline. But Defendants maintain that the Subpoenas are still timely and enforceable
under all the circumstances of the case. Most importantly, these same issues are
presented to the court in that case on Defendants’ pending and fully briefed motions
to compel – although CSS and the Kofile Entities assert that those motions were
improperly filed there. The Court understands that CSS and the Kofile Entities believe
that “Defendants’ position that their motion to compel against CSS is ‘linked’ to the
subpoenas served on Kofile only highlights the fact that Defendants are using the
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subpoenas in an effort to bypass discovery rules for parties to the litigation under Rule
34.” Dkt. No. 10 at 9. That may be so. And the court in the West Virginia case may
agree with this Court’s analysis that motions on the Subpoenas are only properly filed
in this Court. But, whether it does or not, by transferring the Motion to Quash and
Motion to Join, that court will be able to resolve these disputes as to the Subpoenas –
which appear to be involve issues that did not arise in connection with the subpoena
seeking the deposition of third party Clyde Lowers – based on the court’s own discovery
deadline on either the pending motions to compel or the Motion to Quash and the
Motion to Join.
Rule 45(f) provides that, on a transfer, “if the attorney for a person subject to a
subpoena is authorized to practice in the court where the motion was made, the
attorney may file papers and appear on the motion as an officer of the issuing court.”
FED. R. CIV. P. 45(f). And the Advisory Committee Notes explain that, “[i]f the motion
is transferred, judges are encouraged to permit telecommunications methods to
minimalize the burden a transfer imposes on nonparties, if it is necessary for attorneys
admitted in the court where the motion is made to appear in the court in which the
action is pending” and that “[t]he rule provides that if these attorneys are authorized
to practice in the court where the motion is made, they may file papers and appear in
the court in which the action is pending in relation to the motion as officers of that
court.” FED. R. CIV. P. 45(f), advisory committee notes (2013 amendments).
But, here, diminishing any concerns about the burden on the Kofile Entities
(much less on CSS) in litigating the Motion to Quash and Motion to Join in the West
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Virginia case, the same counsel representing CSS in the West Virginia case are
representing CSS and the Kofile Entities in this action.
The Court is presented here with exceptional circumstances in which transfer
is warranted to avoid disrupting the issuing court’s management of the underlying
West Virginia case and in which those interests outweigh whatever interests that CSS
and the Kofile Entities may have in resolving the Motion to Quash and Motion to Join
in this district.
Conclusion
The Court ORDERS, under Federal Rule of Civil Procedure 45(f), that CSS,
Inc.’s Motion to Quash Third-Party Subpoenas and Motion For Protective Order [Dkt.
No. 1 ] and Kofile Technologies Group, Inc. and Kofile Technologies, Inc.’s Joinder in
CSS, Inc.’s Motion to Quash Third-Party Subpoenas and Motion for Protective Order
[Dkt. No. 3] are transferred and remitted to the Charleston Division of the United
States District Court of the Southern District of West Virginia for determination in
connection with the underlying litigation, CSS, Inc. v. Christopher Herrington, Gene
Yoho and Compiled Technologies, LLC, Civil Action No. 2:16-cv-1762 (S.D. W. Va.).
The Court CANCELS the oral argument set for Wednesday, October 25, 2017,
at 10:00 a.m., and the Clerk of the Court is directed to close this matter after transfer
of the Motion to Quash Third-Party Subpoenas and Motion For Protective Order and
non-parties Kofile Technologies Group, Inc. and Kofile Technologies, Inc.’s Joinder in
CSS, Inc.’s Motion to Quash Third-Party Subpoenas and Motion for Protective Order.
SO ORDERED.
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DATED: October 20, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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