Visionworks of America, Inc. v. Johnson & Johnson Vision Care, Inc.

Filing 7

ORDERED that Non-Party Visionworks of America, Inc.s Motion to Quash Subpoena to Produce Documents, Information, or Objects (Dkt. No. 1) and Johnson & Johnson Vision Care Inc.s Cross-Motion to Enforce Compliance with Request One of the Subpoena (Dkt. No. 5) are HEREBY TRANSFERRED to the United States District Court for the Middle District of Florida, Jacksonville Division. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
VISIONWORKS OF AMERICA, INC.,
V.
JOHNSON & JOHNSON VISION
CARE, INC.

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1:17-MC-0055-LY-AWA
3:15-MD-2626-HES-JKR
(M.D. Fla.)

ORDER
Before the Court is Non-Party Visionworks of America, Inc.’s Motion to Quash Subpoena
to Produce Documents, Information, or Objects (Dkt. No. 1); the Opposition (Dkt. No. 5); and the
Reply (Dkt. No. 6). The motion was referred to the undersigned for resolution. Dkt. No. 2.
Visionworks moves pursuant to Rule 45 to quash a subpoena issued by Johnson & Johnson Vision
Care, Inc. (J&J) in antitrust litigation regarding disposable contact lenses pending in the Middle
District of Florida. In the alternative, Visionworks requests a protective order. J&J has filed a crossmotion seeking to enforce the subpoena.
On November 7, 2016, J&J served Visionworks with a subpoena issued by the United States
District Court for the Middle District of Florida, commanding production in Austin, Texas. Dkt. No.
1-1. The subpoena includes ten document requests covering a period of seven years, from January
1, 2010, to the present. Id. At issue here is the request for seven years of “transactional level sales
data by store or other retail or distribution location for sales and returns of Disposable Contact
Lenses in the United States, on a sale-by-sale or an order-by-order basis.” Id.1 Visionworks asserts
that this information constitutes trade secrets and other extremely confidential commercial
information, the requests are overly broad, and that compliance would impose a significant undue
1

As noted, the subpoena seeks a number of additional categories of data, but the parties have
agreed that Visonworks need only provide a response to the request quoted in the text.

burden on it, a non-party, requiring the expenditure of hundreds or possibly thousands of employee
hours to comply.
J&J responds that it is the defendant in MDL antitrust litigation concerning retail pricing
policies for disposable contact lenses. It contends that as a major retailer of optical products,
Visionworks possesses retail pricing and sales data for disposable contact lenses that are highly
relevant to its defense of its case. J&J also asserts that, through negotiation, it agreed to limit its
request the production of transactional data. J&J further asserts that its requests are not temporally
overbroad, as the underlying litigation concerns the same seven year period. Finally, J&J asserts that
the existing confidentiality order in the underlying litigation is sufficient to protect Visionworks’
trade secrets or other commercially sensitive information.
The Court’s analysis in deciding disputes regarding out-of-district subpoenas is governed by
Rule 45. Paws Up Ranch, LLC v. Green, 2013 WL 6184940, *1 (D. Nev. Nov. 22, 2013). Generally
speaking, Rule 45 requires that disputes related to non-party subpoenas be resolved locally, to avoid
imposing undue travel or expense burdens on non-parties who are challenging a subpoena. See, e.g.,
FED. R. CIV. P. 45(d)(2)(B)(i) (directing that motions to compel be filed in “the district in which
compliance is required”). Effective December 1, 2013, however, a significant change was made to
Rule 45 through the addition of a new subsection, which states:
(f) Transferring a Subpoena-Related Motion. When the court where 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). The Advisory Committee’s comments to the amendment indicate that “[t]o
protect local non-parties, local resolution of disputes about subpoenas is assured by the limitations

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of [Rule 45] . . . that motions be made in the court in which compliance is required under Rule 45.”
FED. R. CIV. P. 45, Advisory Committee Notes to 2013 Amendments, Subdivision (f). The Notes
state further, however, that “transfer to the court where the action is pending is sometimes
warranted,” either where the nonparty consents, or where there are exceptional circumstances. Id.
The Committee instructs that “the prime concern should be avoiding burdens on local nonparties,”
but counsels that transfer is appropriate for “exceptional circumstances” when the interests in having
the issuing court decide the discovery dispute “outweigh the interests of the party served with the
subpoena in obtaining local resolution of the motion.” Id. The Committee notes that “transfer may
be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation,
as when that court has already ruled on issues presented by the motion or the same issues are likely
to arise in discovery in many districts.” Id.
The Court has reviewed the docket and filings in the underlying case pending in the Middle
District of Florida. Although the place of compliance set by the subpoena is Austin, Texas, the
subpoena was issued by the Florida court. Additionally, Visionworks is a national corporation with
740 stores located throughout the country, and the information requested is not limited to the Austin
area or even to Texas. Therefore, unlike a situation where an individual or small business is required
to comply with a subpoena outside of its locality, place of compliance is of little moment in this
instance.2 Additionally, this is complicated multidistrict litigation involving multiple defendants.
The docket contains over four hundred entries. It is likely that other non-parties will move to quash
similar depositions in the future. Further, the presiding judge in the underlying case is in a much
2

Notably, Visionworks’ counsel is from San Antonio, not Austin. Thus, to the extent travel
is required to attend a hearing, the difference between 3 to 4 hours of driving to Austin (roundtrip)
and roundtrip travel costs to Jacksonville is, in the scheme of litigation such as this, trivial.
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better position than this Court to determine how crucial the documents requested from Visionworks
are to J&J’s defense in the MDL case, which is a significant part of the balancing analysis a court
needs to conduct to decide Visionworks’ undue burden objection. Finally, the evaluation of the
efficacy of the underlying court’s confidentiality order in protecting Visionworks’ interests is best
made by that court and not this one.
Transfer of this motion will foster the interests of fairness, consistency, judicial economy,
and speed of resolution. Uniformity of discovery rulings in a case of this complexity is critical to
achieving fairness to the parties and non-parties. For the reasons stated above, the Court finds that
any ruling it might issue has the potential for disrupting the issuing court's management of the
underlying litigation, both procedurally and substantively. Therefore, the Court finds that
Visionwork’s motion presents exceptional circumstances that warrant transfer.
IT IS THEREFORE ORDERED that Non-Party Visionworks of America, Inc.’s Motion to
Quash Subpoena to Produce Documents, Information, or Objects (Dkt. No. 1) and Johnson &
Johnson Vision Care Inc.’s Cross-Motion to Enforce Compliance with Request One of the Subpoena
(Dkt. No. 5) are HEREBY TRANSFERRED to the United States District Court for the Middle
District of Florida, Jacksonville Division. IT IS FURTHER ORDERED that upon transfer, this case
be CLOSED.
SIGNED this 27th day of April, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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