Yanaki v. Daniel

Filing 152

ORDER and NOTICE OF HEARING The court finds that it has authority to decide the Motion to Quash. Accordingly, all pending motions will be heard by this court on Wednesday, July 22, 2009 at 10:30 a.m. ( Miscellaneous Hearing set for 7/22/2009 10:30 AM in Room 220.) Signed by Judge Dale A. Kimball on 6/9/09. (las)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

JAMAL S. YANAKI, Plaintiff and Counterclaim Defendant, ORDER and NOTICE OF HEARING

vs. CHARLES J. DANIEL, M.D. Defendant and Counterclaim Plaintiff.

Case No. 2:07CV648 DAK

O n May 12, 2009, the first day of trial on this matter, an issue arose as to a p o s s ib le conflict of interest regarding Mr. Pruyn-Goldstein's association with Ray Q u in n e y & Nebeker ("RQ&N"). Mr. Pruyn-Goldstein had previously represented Mr. Y a n a k i and then was recently hired as a contract attorney by RQ&N, the firm representing D r. Daniel. This potential conflict did not become known to RQ&N until May 11, 2009, a n d RQ&N immediately notified Mr. Yanaki's counsel. Also on the morning of May 12, 2 0 0 9 , Dr. Daniel's counsel raised an issue as to Mr. Scofield's prior representation of B a c te rin International (Bacterin") and Mr. Guy Cook, Bacterin's CEO, whose interests a re allegedly contrary to Mr. Scofield's client's interest in the instant case. Because of these two potential conflict issues, the May 12, 2009 trial was p o s tp o n e d until August 25, 2009, and the parties were granted leave to file briefs on the c o n f lic t issues, and, if necessary, to conduct discovery limited to these specific issues. Briefs were to be filed by July 2, 2009 and responses were to be filed by July 10, 2009.

Since that time, several motions have been filed: (1) Bacterin & Guy Cook's Motion to Quash Subpoenas & Otherwise Preserve Privilege (the "Motion to Quash"); (2) Mr. Yanaki's Motion for Extension of Time to Complete Discovery and Briefing or, in the Alternative, Prohibition Against Filing Motion to Disqualify Counsel for Plaintiff; (3 ) Mr. Yanaki's Motion to Disqualify Counsel for Defendant; and (4) Dr. Daniel's M o tio n to Disqualify Counsel and to Join Motion to Quash Subpoenas. Mr. Yanaki has argued that the Motion to Quash must be heard in United States D is tric t Court for the District of Montana, the court from which the subpoenas were is su e d , and that this court has no jurisdiction over the motion. While briefing is not yet c o m p le te on any of the pending motions, to expedite and streamline this litigation, the c o u rt issues the following Order regarding its authority to rule on the Motion to Quash a n d also sets a time for oral argument on all the pending motions. T h is court recognizes that, pursuant to Rule 45 of the Federal Rules of Civil P ro c e d u re , many courts have determined that only the issuing court has the power to act o n its subpoenas. See, e.g., Kearney v. Jandernoa, 172 F.R.D. 381, 383 n.4 (N.D. Ill. 1 9 9 7 ) (finding that the nonparty could not make a motion to quash in the trial court and th a t such a motion "must be filed and decided in the court from which the subpoena is su e d ." ); Byrnes v. Jetnet Corp., 111 F.R.D. 68, 69 (M.D. N.C. 1986) (noting that e n f o rc e m e n t of subpoenas under Rule 45 must be decided in the issuing court). But that view is not unanimously held. In Teoco Corp. v. Razorsight Corporation,

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the court found that "[n]ormally, disputes over discovery from a non-party are decided by th e court which issued the subpoena, unless the non-party consents that the matter be r e s o lv e d by a court in another district." 2008 WL 724863, 1 (N.D.Cal. 2008); see also F in c h e r v. Keller Industries, Inc., 129 F.R.D. 123, 125 (M.D.N.C.1990) (stating that tra n s f e rs are "not possible when the issue involves a non-party who has not expressly or im p lic itly consented to such a transfer"). Moreover, in Petersen v. Douglas County Bank & Trust Company, the Tenth C irc u it was confronted with a situation in which the plaintiff in a lawsuit filed in the U n ite d States Court for the District of Nebraska wished to depose a nonparty Kansas re s id e n t. That plaintiff properly applied to the Kansas district court for the issuance of a s u b p o e n a . The Kansas resident argued that the subpoenaed documents were privileged, a n d moved the Kansas district court to quash the subpoena. The Magistrate Judge in the K a n s a s court sua sponte determined that the Nebraska court more properly understood the is su e of the case and could more intelligently rule on the motion to quash. Thus, the M a g is tra te Judge therefore ordered that the motion be transferred to the Nebraska court. The Kansas resident later appealed the Nebraska court's decision on the motion to quash a n d also appealed the earlier transfer order. See Petersen, 940 F.3d 1389, 1390-91 (10 th C ir. 1991). On appeal, the Tenth Circuit concluded, among other things, that "[n]othing in R u le 45 or the commentary thereto and no case cited to us . . . compels us to conclude that

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only the Kansas magistrate had the authority to rule on a motion to quash, effectively p ro h ib itin g him from transferring the motion to Nebraska. Accordingly, the transfer was n o t improper simply because the transferred matter involved a motion to quash under R u le 45." Id. at 1391. This court finds that it has authority to decide the Motion to Quash, in light of the T e n th Circuit's recognition in Douglas that the issuing court is not the only court with a u th o rity to rule on a motion to quash, coupled with the fact that Bacterin and Mr. Guy C o o k ­ b o th nonparties to this action­have not only consented to this court determining th e ir motion to quash, but specifically chose to file their motion in this court rather than in th e issuing court, where they reside. Accordingly, all currently pending motions will b e heard by this court on Wednesday, July 22, 2009 at 10:30 a.m. DATED this 9 th day of July, 2009. B Y THE COURT:

DALE A. KIMBALL U n ite d States District Judge

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