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Benchmark Young Adult School, Inc. v. Launchworks Life Services

United States District Court, S.D. California

February 11, 2014

BENCHMARK YOUNG ADULT SCHOOL, INC., DBA BENCHMARK TRANSITIONS, Plaintiff,
v.
LAUNCHWORKS LIFE SERVICES LLC DBA MARK HOUSTON RECOVERY CENTER and BENCHMARK RECOVERY CENTER, Defendant.

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL WITHOUT PREJUDICE [Doc. No. 31]

BERNARD G. SKOMAL, Magistrate Judge.

On December 20, 2013, the parties called regarding a discovery dispute. Plaintiff's counsel represented that the dispute concerned the deposition testimony of Jana Triplett and Defendant's instruction for her not to answer certain deposition questions based on the attorney-client and attorney work product privileges. Based on the representation of the dispute, and the parties inability to resolve the dispute through the meet and confer process, the Court allowed Plaintiff to file the pending motion to compel. (Doc. No. 30.)

After reviewing the parties' briefing in support of and in opposition to Plaintiff's motion to compel, it has come to the Court's attention that the parties failed to inform the Court that the dispute stemmed from a deposition of a third-party witness who was subpoenaed pursuant to Federal Rule of Civil Procedure 45. This fact is relevant to the dispute because the subpoena issued and the deposition was taken prior to the effective date of the 2013 Amendment to Rule 45. Prior to December 1, 2013, Federal Rule of Civil Procedure 45 required the subpoena to be issued from the court for the district where the deposition is to be taken. (Fed. R. Civ. P. 45(a)(2)(B). Motions to quash a subpoena that "overbears the limits of the subpoena power, " as well as motions for enforcement of the subpoena must be presented to the court for the district in which the deposition would occur. Fed.R.Civ.P. 45 advisory committee's notes to the 1991 Amendment.

The deposition of Jana Triplett was set to take place and did take place at the law offices of Call & Jensen, 610 Newport Center Drive, Suite 700, Newport Beach, California. Thus, the deposition occurred in the Central District of Califor-nia and the court that should have been presented with the a motion for enforcement of the subpoena-including resolving issues of privilege- is the court for the Central District of California.[1] See Lieberman v. American Dietectic Ass'n, 1995 WL 250414 at *1 (N.D. Ill. April 25, 1995) (holding sua sponte it did not have jurisdiction to entertain either the motion to compel or motion to quash because the deposition was to take place in a different district (citing In re Digital Equipement Corp., 949 F.2d 228, 231 (8th Cir. 1991) (vacating discovery orders entered by South Dakota District Court because the Oregon district court had jurisdiction to rule on objections including issues of privilege)).

Accordingly, this Court DENIES Plaintiff's motion to compel without prejudice because this is not the proper forum to seek enforcement of the subpoena. The dispute over Ms. Triplett's deposition may raised in the District Court for the Central District of California.

IT IS SO ORDERED.


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