Smartmatic USA Corp et al v. Herring Networks, Inc

Filing 16

MEMORANDUM OPINION AND ORDER: Defendant's motion to compel nonparty Hugh Gallagher's compliance with a Rule 45 deposition subpoena issued from the United States District Court for the District of Columbia, ECF No. 1 , is hereby TRANSFERRED to the issuing court for all further proceedings. Fed. R. Civ. P. 45(f). Signed by Magistrate Judge Joel C. Hoppe on 11/7/2023. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division
SMARTMATIC USA CORPORATION,
SMARTMATIC HOLDING B.V. &
SGO CORPORATION LTD.,
Plaintiffs-Respondents,
v.
HERRING NETWORKS, INC.,
d/b/a ONE AMERICA NEWS
NETWORK,
Defendant-Movant.

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Case No. 3:23mc00006
MEMORANDUM OPINION & ORDER
By:

Joel C. Hoppe
United States Magistrate Judge

This miscellaneous action is before the Court on Defendant-Movant’s motion for an order
to nonparty Hugh Gallagher, Fed. R. Civ. P. 37(a)(2), requiring Mr. Gallagher to comply with a
Rule 45 deposition subpoena issued from the United States District Court for the District of
Columbia. Def.’s Mot. to Compel 1 (citing Fed. R. Civ. P. 45). For the reasons explained below,
the Court will transfer Defendant’s subpoena-related motion, ECF No. 1, to the issuing court
under Rule 45(f) of the Federal Rules of Civil Procedure.
I. Background
In November 2021, Smartmatic USA Corporation, Smartmatic International Holding
B.V., and SGO Corporation Ltd. (together, “Smartmatic”) sued Herring Networks, Inc., d/b/a
One America News Network (“OANN”), in the U.S. District Court for the District of Columbia.
See CM/ECF Civil Docket, Smartmatic USA Corporation, et al. v. Herring Networks, Inc. d/b/a
One America News Network, No. 1:21cv2900 (D.D.C.). In September 2023, the clerk of that
court issued a blank Rule 45 subpoena directing nonparty Hugh Gallagher to appear for an oral
deposition by counsel for Defendant OANN at 10:00 a.m. on October 6, 2023, in Charlottesville,
Virginia. Def.’s Mot. to Compel, Ex. 1-A, Subpoena to Testify at a Dep. in a Civ. Act. (Sept. 13,
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2023) (D.D.C.), ECF No. 1-3, at 27. Charlottesville is in the Western District of Virginia. W.D.
Va. Gen. R. 2(a)(2); see 28 U.S.C. § 127(b), (c).
Mr. Gallagher, a former Smartmatic employee, appears to be represented by counsel of
record for Smartmatic in the underlying action. See Resp. in Opp’n 1, ECF No. 12; Supp’l Resp.
in Opp’n 1, ECF No. 13. On September 18, Smartmatic filed a motion in that case asking the
court “to issue a protective order quashing OANN’s pending deposition notices,” including the
one for Mr. Gallagher, “and staying depositions until January 8, 2024.” See Pls.’ Mot. for Prot.
Order, Stay Deps. & Am. Sched. Order, Smartmatic, No. 1:21cv2900 (D.D.C. Sept. 18, 2023),
ECF No. 96, at 12, 14–16 (citing Fed. R. Civ. P. 26(c)); Def.’s Br. in Supp. Ex. 1-A, Notice of
Oral Dep. of Hugh Gallagher (Sept. 13, 2023), ECF No. 1-3, at 21–22. Upon receiving OANN’s
subpoena, Mr. Gallagher “learned that the parties to the litigation were involved in discovery
disputes that the United States District Court for the District of Columbia ha[d] not yet resolved.”
Resp. in Opp’n, Ex. A., Aff. of H. Gallagher ¶ 6 (Oct. 20, 2023), ECF No. 12, at 18.
Mr. Gallagher did not appear for his scheduled deposition on October 6. See Def.’s Mot.
to Compel, Ex. 1, Decl. of John Edwards, Esq. ¶ 9 (Oct. 6, 2023), ECF No. 1-2, at 3. That
afternoon, OANN initiated this miscellaneous action by filing a motion for an order to a nonparty
under Rule 37 and Rule 45 of the Federal Rules of Civil Procedure. See Def.’s Br. in Supp. 3–4
(citing Fed. R. Civ. P. 37(a), 45(g)), ECF No. 1-1. OANN asks this Court to order Mr. Gallagher
to sit for an oral deposition in the Western District of Virginia within the next fourteen days, and
to hold him in contempt for failing to appear at his properly noticed deposition last month. Def.’s
Br. in Supp. 3–4; see Fed. R. Civ. P. 37(a)(2), 45(g). Mr. Gallagher and Smartmatic oppose both
requests on the merits. See Resp. in Opp’n 4–14; Supp’l Resp. in Opp’n 1–3. They ask this Court
to deny OANN’s motion “and allow the D.D.C. to make any further determinations concerning

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Mr. Gallagher’s subpoena and the timing of the depositions in the underlying action.” Supp’l
Resp. in Opp’n 3.
On October 21, U.S. Magistrate Judge Moxila Upadhyaya, who is overseeing discovery
in the underlying action, entered an order temporarily staying fourteen deposition notices that
OANN had issued earlier in the month. Min. Order, Smartmatic, No. 1:21cv2900 (D.D.C. Oct.
21, 2023); see Pls.’ Emer. Mot. to Quash Dep. Notices, Smartmatic, No. 1:21cv2900, ECF No.
105 (D.D.C. Oct. 12, 2023). This order did not cover OANN’s subpoena to Mr. Gallagher. See
Supp’l Resp. in Opp’n 2–3; Def.’s Reply 2, ECF No. 15. On Friday, November 3, however,
Smartmatic filed another emergency motion in D.D.C. asking Judge Upadhyaya “to issue a
protective order staying all depositions noticed by [OANN] . . . until January 8, 2024,” including
Mr. Gallagher’s deposition. See Pls.’ Emer. Mot. to Stay Deps. 4 (footnote omitted), Smartmatic,
No. 1:21cv2900, ECF No. 113 (D.D.C. Nov. 3, 2023). Judge Upadhyaya ordered OANN to file
its response, if any, by November 7, and Smartmatic to file a reply, if any, by November 9, 2023.
See Min. Order, Smartmatic, No. 1:21cv2900 (D.D.C. Nov. 3, 2023).
II. The Legal Framework
As a general rule, a party to civil litigation in federal court may require both parties and
nonparties to answer questions by oral deposition as part of the ordinary civil discovery process.
Gilmore v. Jones, 339 F.R.D. 111, 119–20 (W.D. Va. July 1, 2021); see Fed. R. Civ. P. 30(a),
37(a)(3), 45(a); Fed. R. Civ. P. 45(f), advisory committee’s note to 2013 amendment. “On notice
to other parties and all affected persons, a party may move for an order compelling disclosure or
discovery.” Fed. R. Civ. P. 37(a)(1). “A motion for an order to a nonparty must be made in the
court where the discovery is or will be taken.” Fed. R. Civ. P. 37(a)(2). This includes a party’s
motion to compel a nonparty to comply with a Rule 45 deposition subpoena issued by the court

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where the underlying action is pending. E.g., Natural Immunogenics Corp. v. Newport Trial
Grp., 1:18mc3, 2018 WL 1884988, at *3–4 (W.D.N.C. Apr. 19, 2018); see Fed. R. Civ. P. 45(f),
advisory committee’s note to 2013 amendment (“To protect local nonparties, local resolution of
disputes about subpoenas is assured by the [100-mile geographical] limitations of Rule 45(c) and
the requirements in Rules 45(d) and (e) that motions be made in the court in which compliance is
required under Rule 45(c).”). Where, as here, the compliance court “did not issue the subpoena,”
then that court may either resolve the motion itself, or “it may transfer the motion . . . to the
issuing court if the person subject to the subpoena consents or if the [compliance] court finds
exceptional circumstances.” Fed. R. Civ. P. 45(f). The court may transfer a subpoena-related
motion under Rule 45(f) sua sponte if it finds exceptional circumstances. See Victim Servs., Inc.
v. Consumer Fin. Prot. Bureau, 298 F. Supp. 3d 26, 28 (D.C.C. 2018).
The compliance court’s “prime concern should be avoiding burdens on local nonparties
subject to subpoenas” issued by courts far from where they live or work. See Fed. R. Civ. P.
45(f), advisory committee’s note to 2013 amendment. It should not “assume[] that the issuing
court is in a superior position to resolve subpoena-related motions” simply because that court is
handling the underlying litigation. See id. “In some circumstances, however, transfer may be
warranted in order to avoid disrupting” the issuing court’s ability to manage its own proceedings,
such “as when that court has already ruled on the issues presented by the motion,” id., or when
other circumstances demonstrate the issuing court is better equipped to ensure the proceeding’s
just, economical, and efficient resolution, see Fed. R. Civ. P. 1. See generally Natural
Immunogenics Corp., 2018 WL 1884988, at *4 (discussing relevant factors). “Transfer is
appropriate only if such interests outweigh the interests of the nonparty served with the subpoena

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in obtaining local resolution of the motion.” Fed. R. Civ. P. 45(f), advisory committee’s note to
2013 amendment.
III. Discussion
A.

Summary
Mr. Gallagher, through Smartmatic’s counsel of record, has expressed a preference for

letting Judge Upadhyaya “make any further determinations” about OANN’s subpoena directing
him to be deposed in this judicial district, as well as “the timing of depositions in the underlying
action.” Supp’l Resp. in Opp’n 3. They note that similar considerations led compliance courts to
transfer such subpoena-related disputes to the issuing court, albeit before Rule 45(f) was enacted
in December 2013. See Resp. in Opp’n 5–6 (discussing United States v. Star Sci., 205 F. Supp.
2d 483, 488 (D. Md. 2002)). 1 On the other hand, they also ask this Court to rule on the merits of
OANN’s motion to compel, as long as this Court denies that motion. Resp. in Opp’n 1–2, 7–14;
Supp’l Resp. in Opp’n 1–3.

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Before December 2013, Rule 45 required deposition subpoenas to issue “from the court for the district
where the deposition [was] to be taken.” Fed. R. Civ. P. 45(a)(2)(B) (2012). The issuing court “ha[d]
exclusive jurisdiction” to modify, quash, or enforce the subpoena, and any subpoena-related motion made
under Rule 45 had to be filed in the issuing court, “rather than the court where the underlying action [was]
pending.” First Time Videos, LLC v. Doe, No. 2:11cv690, 2012 WL 1134736, at *1 (E.D. Va. Apr. 4,
2012) (citing Fed. R. Civ. P. 45(c)(3) (2011)). Rule 45 did not contain a mechanism for the compliance
court to transfer a subpoena-related motion to the court where the underlying action was pending. See
generally Star Sci., 205 F. Supp. 2d at 484–88.
“After the 2013 amendments, [all] subpoenas must be issued from the court where the action is
pending.” Ellis v. Arrowood Indem. Co., No. 2:14mc146, 2014 WL 4365273, at *2 (S.D. W. Va. Sept. 2,
2014); see Fed. R. Civ. P. 45(a)(2) (2023). Any subpoena-related motion made under Rule 45, however,
must still be filed in the “court for the district where compliance is required,” Fed. R. Civ. P. 45(d)–(e),
because that court has primary responsibility for modifying, quashing, or enforcing subpoenas directed to
persons within its jurisdiction under Rule 45(c), which sets certain geographic limits on the Rule 45
subpoena power against a nonparty. See Ellis, 2014 WL 4365273, at *2; Fed. R. Civ. P. 45(f), advisory
committee’s note to 2013 amendment. Rule 45(f) now allows the compliance court to transfer a
subpoena-related motion to the issuing court—i.e., the court where the underlying action is pending—if
the person subject to that subpoena consents or if “exceptional circumstances” are present. See United
States ex rel. Ortiz v. Mt. Sinai Hosp., 169 F. Supp. 3d 538, 543 (S.D.N.Y. 2016) (quoting Fed. R. Civ. P.
45(f)). “[T]he court where the action is pending will decide the motion” only after it has been transferred
under Rule 45(f). Fed. R. Civ. P. 45(f), advisory committee’s note to 2013 amendment.

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OANN, as the party seeking to compel Mr. Gallagher to appear for a deposition in
Charlottesville, must file any such motion in the Western District of Virginia, Fed. R. Civ.
37(a)(2). See Fed. R. Civ. P. 45(f), advisory committee’s note to 2013 amendment; cf. Consumer
Fin. Prot. Bureau v. Nexus Servs., No. 5:21cv16 2022 WL 1597840, at *3 n.4 (W.D. Va. May
19, 2022) (noting that a motion seeking to quash or modify a subpoena may be made either in the
court where compliance is required, Fed. R. Civ. P. 45(d)(3), or in the court where the action is
pending, Fed. R. Civ. P. 26(c)). OANN could not properly ask the issuing court to grant such
relief unless and until this Court transferred OANN’s motion to that court under Rule 45(f). See
Fed. R. Civ. P. 45(f), advisory committee’s note to 2013 amendment (“After transfer, the court
where the action is pending will decide the motion.”); cf. In re Packaged Seafood Prods.
Antitrust Litig., No. 15-md-2670, 2018 WL 454440, at *1–2 (S.D. Cal. Jan. 17, 2018) (rejecting
a party’s argument that the court where the civil action was pending “should ignore the [Rule’s]
plain language” and decide a misfiled Rule 45(d) motion on the merits “because the court of
compliance likely would transfer the matter to th[at] Court under Rule 45(f)”). Thus, contrary to
Mr. Gallagher’s and Smartmatic’s suggestion, an order from this Court denying OANN’s motion
to compel on the merits would not automatically “allow the D.D.C. to make any future
determinations concerning Mr. Gallagher’s subpoena and the timing of [local non-party]
depositions in the underlying action,” Supp’l Br. in Opp’n 3. See Fed. R. Civ. P. 45(f), advisory
committee’s note to 2013 amendment. It may simply require OANN to come back here for a
second time. Fed. R. Civ. P. 37(a)(2).
OANN notes, correctly, that Rule 45 gives the compliance court primary responsibility
over subpoenas issued to local nonparties, and that this Court should not assume it is ill-equipped
to resolve a motion to compel simply because it is not handling the underlying litigation. See

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Def.’s Reply 3–4. OANN argues that its pending motion “implicate[s]” only a few “discrete
issues”—namely whether Mr. Gallagher should be required to attend a deposition in
Charlottesville within the next fourteen days and whether he should be held in contempt for
failing to appear at his October 6 deposition here—which “this Court is more than capable of
resolving” today. See id.; Def.’s Br. in Supp. 4; Def.’s Reply 3–4, 7–8. This argument makes
sense as far as it goes. The problem, however, is that OANN is not merely asking this Court to
reset Mr. Gallagher’s local deposition and to award OANN its attorney’s fees under Rule
45(g)—it is asking this Court to grant both requests before Judge Upadhyaya has resolved
Smartmatic’s first motion for protective order challenging OANN’s subpoena to Mr. Gallagher.
See generally Def.’s Br. in Supp. 2–4; Def.’s Reply 1–2, 4–8.
B.

Analysis
This Court finds that exceptional circumstances warrant transferring OANN’s subpoena-

related motion to compel, ECF No. 1, to the U.S. District Court for the District of Columbia.
Fed. R. Civ. P. 45(f). First, Mr. Gallagher lives in Glen Allen, Virginia, Gallagher Aff. ¶ 2,
which is actually within the Eastern District of Virginia, see 28 U.S.C. § 127(a), (c); E.D. Va.
Civ. R. 3(B)(4) (Henrico County). Glen Allen is about 65 miles east of Charlottesville, which
lies within the Western District of Virginia, W.D. Va. Gen. R. 2(a)(2); see 28 U.S.C. § 127(b),
(c). Thus, even assuming that Mr. Gallagher actually has some “interest[] . . . in obtaining local
resolution of the motion” in this judicial district specifically, those interests are outweighed by
other factors that favor transferring OANN’s motion to D.D.C. See Fed. R. Civ. P. 45(f),
advisory committee’s note to 2013 amendment. Moreover, that court can take steps to minimize
any practical burden(s) on Mr. Gallagher should his presence be required at a hearing on
OANN’s motion. See id.

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Second, the parties’ briefs in this Court describe multifaceted and seemingly complex
disputes over both the timing and scope of two dozen proposed depositions, as well as the course
and conduct of discovery more generally, in the underlying action. See generally Resp. in Opp’n
1–4, 6–10; Def.’s Reply 2–6. The parties agree that OANN’s deposition subpoena to Mr.
Gallagher plays some role in those disputes, but their briefs set out dramatically different
versions of how discovery has proceeded thus far. Judge Upadhyaya likely is much more
familiar with the factual background that may be necessary for the court to fully understand how
OANN’s “discrete motion” directed to Mr. Gallaher, Def.’s Reply 3, fits into these broader
disputes. See Natural Immunogenics Corp., 2018 WL 1884988, at *4. Thus, Judge Upadhyaya is
in a better position to ensure the just, economical, and efficient resolution of these disputes and
the underlying action in D.D.C. See Fed. R. Civ. P. 1.
Finally, the parties strongly disagree whether Smartmatic’s Rule 26(c) motion for a
protective order filed in D.D.C. on September 18, 2023, gave Mr. Gallagher an “adequate
excuse,” Fed. R. Civ. P. 45(g), for failing to appear at his deposition in this judicial district on
October 6. See generally Def.’s Br. in Supp. 1–4; Resp. in Opp’n 1–4, 7–13; Def.’s Reply 4–8.
On the one hand, OANN says that Smartmatic filed this motion on its own behalf—Mr.
Gallagher never sought this Court’s protection under Rule 45(d)(3)—and that Smartmatic lacks
standing to challenge OANN’s subpoena on grounds that it imposes an undue burden either on
itself or on Mr. Gallagher. See Def.’s Br. in Supp. 2, 4; Def.’s Reply 1, 4–8. For its part,
Smartmatic argues that it does have standing to challenge OANN’s subpoena and that its motion
for protective order filed in D.D.C. “properly and expressly objected to Mr. Gallagher’s
deposition taking place” before Judge Upadhyaya resolves the parties’ various discovery
disputes. Resp. in Opp’n 7; see id. at 3–4, 7–9, 11.

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Smartmatic’s first Rule 26(c) motion is fully briefed and has been presented to Judge
Upadhyaya as part of a wide-ranging dispute on both the scope and timing of pretrial discovery.
Judge Upadhyaya is in the best position to determine the availability, scope, and collateral effects
of Smartmatic’s specific requests for relief in that motion. Cf. JTH Tax, Inc. H & R Block E. Tax
Servs., Inc., 359 F.3d 699, 705 (4th Cir. 2004) (“When a district court’s decision is based on an
interpretation of its own order, our review is even more deferential because district courts are in
the best position to interpret their own orders.”). Further, on Friday evening Judge Upadhyaya
ordered expedited briefing on Smartmatic’s emergency motion for protective order asking her to
stay all OANN’s depositions noticed to date, including Mr. Gallagher’s deposition subpoena at
issue here. Briefing should be complete by Thursday, November 9. In these circumstances,
transferring OANN’s motion to the D.C. District Court is “warranted in order to avoid disrupting
[Judge Upadhyaya’s] management of the underlying litigation” and to give her the first
opportunity to rule on “the same issues that are likely to arise in discovery in many districts”
until the parties’ disputes over the timing and scope of all depositions are resolved. Fed. R. Civ.
P. 45(f), advisory committee’s note to 2013 amendment.
IV. Conclusion
For the foregoing reasons, Defendant’s motion to compel nonparty Hugh Gallagher’s
compliance with a Rule 45 deposition subpoena issued from the United States District Court for
the District of Columbia, ECF No. 1, is hereby TRANSFERRED to the issuing court for all
further proceedings. Fed. R. Civ. P. 45(f).
The Clerk shall deliver a copy of this Memorandum Opinion & Order to the parties, to
counsel for Mr. Gallagher, and to the Clerk of Court for the United States District Court for the

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District of Columbia for docketing in: Smartmatic USA Corporation, et al. v. Herring Networks,
Inc. d/b/a One America News Network, No. 1:21cv2900-CJN (D.D.C. filed Nov. 3, 2021).
It is so ORDERED.
ENTER: November 7, 2023

Joel C. Hoppe
United States Magistrate Judge

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