United States District Court, S.D. California
H.I.S.C, INC. et al., Plaintiffs,
FRANMAR INTERNATIONAL IMPORTERS, LTD. et al., Defendants.
ORDER RE: (1) DISPUTES OVER DEFENDANTS' RESPONSES
TO PLAINTIFFS' RFPS AND (2) PLAINTIFFS' CHALLENGES TO
THIRD-PARTY QVC SUBPOENAS [Doc. Nos. 78, 79, 87, 88, 91 &
William V. Gallo United States Magistrate Judge
before the Court are two sets of discovery disputes about (1)
four document and deposition subpoenas that Defendants served
upon non-party QVC (Doc. Nos. 87, 88, 91 & 92) and (2)
Defendants' responses to multiple requests for production
of documents (“RFPs”) (Doc. Nos. 78 & 79).
The Court convened a telephonic discovery conference on May
explained below, Plaintiffs' request to quash the QVC
subpoenas and for a protective order to prevent the
depositions is DENIED. However, as set forth in the
Conclusion of this Order, the Protective Order the Court
previously entered in this case is amended to include QVC.
respect to the RFPs dispute, the Court previously found the
parties failed to present the dispute in a timely manner in
violation of the Court's Civil Chambers Rules and
accordingly for the most part declined to entertain the
dispute. However, with respect to RFPs 55, 56, 58, and 59,
Defendants are ordered to take additional action as set forth
in the Conclusion of this Order.
Inc. is a third party television network that facilitated the
sales of the competing brooms in this case. During a
deposition in February 2018, opposing counsel agreed on the
record that they would not reach out to each other's
business contacts without first contacting and discussing the
matter with each other. (Doc. No. 88-1 at 4-5.) On April 12,
2018, Defendants served four subpoenas upon QVC without
reaching out to Plaintiffs' counsel to discuss the matter
as previously agreed. Defendants served one subpoena
duces tecum and three deposition subpoenas to QVC
employees. The depositions were originally noticed for May 9,
2018 in Philadelphia, PA, but defense counsel and counsel for
QVC have been working to find an alternate date that is more
convenient for the QVC employees. Defendants represent that
all of the depositions can be completed in one day.
coordinate the documents and deposition subpoenas, defense
counsel contacted QVC's in-house counsel, who has fully
cooperated with Defendants. QVC counsel offered the QVC
employees for deposition, proposed several alternate dates
when all three employees would be available, and requested
that the Protective Order in this case be modified to include
QVC. (Doc. No. 87 at 3.) QVC counsel also suggested that
rather than each subpoenaed employee producing documents,
Defendants could depose QVC's custodian of records.
(Id. at 3-4.) Defense counsel agreed and withdrew
the pending document subpoenas and issued a subpoena upon
QVC's document custodian. (Id.) Defense counsel
then reached out to Plaintiffs' counsel, who then
suggested that the records custodian deposition could be
avoided-Plaintiffs would produce the documents in
Defendants' document subpoena and stipulate to their
authenticity. (Doc. No. 88 at 9.) In exchange, Plaintiffs
asked that all of the pending subpoenas, including the
deposition subpoenas, be withdrawn. (Id.) Although
Defendants agreed with the proposal to avoid the
custodian's deposition, they could not agree to withdraw
the deposition subpoenas. (Doc. No. 87 at 4.)
The Court Lacks Jurisdiction to Quash the Subpoenas
first and most fundamental reason the Court declines to quash
the subpoena duces tecum is its lack of authority to
provision in Rule 45 that permits the quashing of a subpoena
has gone through various iterations over the years. It
initially did not specify which court had the authority to
quash a subpoena but later specified that the “issuing
court” had such power. SEC v. CMKM Diamonds,
Inc., 656 F.3d 829, 831 (9th Cir. 2011). That provision
changed again in 2013, when Rule 45 was amended to vest
quashing authority in the “court for the district where
compliance is required.” Fed.R.Civ.P. 45(d)(3)(A), (B).
The issuing court does not have authority to quash a subpoena
unless, of course, compliance is also required in that the
same district where that court sits. Woods ex rel. U.S.
v. SouthernCare, Inc., 303 F.R.D. 405, 406 (N.D. Ala.
2014) (Under the federal rules, as amended in 2013, “a
subpoena must be issued by the court where the underlying
action is pending, but challenges to the subpoena are to be
heard by the district court encompassing the place where
compliance with the subpoena is required.”);
Agincourt Gaming, LLC v. Zynga, Inc., No. 14 CV
0708, 2014 U.S. Dist. LEXIS 114348, 2014 WL 4079555, at *3
(D. Nev. Aug. 15, 2014) (“Under the current version of
[Rule 45], when a motion to quash a subpoena is filed in a
court other than the court where compliance is required, that
court lacks jurisdiction to resolve the motion.”);
see also Chambers v. Whirlpool Corp., No. SACV
11-1733, 2016 WL 9451360, at *3 (C.D. Cal. Aug. 12, 2016)
this Court is the issuing Court. The Eastern District of
Pennsylvania, which encompasses the city of Philadelphia is
the district in which compliance has been designated by all
of the disputed subpoenas. Accordingly, this Court lacks
jurisdiction to quash the subpoenas. Accord Victorino v.
FCA U.S. LLC, No. 16CV1617-GPC(JLB), 2018 U.S. Dist.
LEXIS 13241, at *3 (S.D. Cal. Jan. 25, 2018); Uehling v.
Millennium Labs., Inc., No. 16CV2812-L(MDD), 2018 U.S.
Dist. LEXIS 3950, at *4 (S.D. Cal. Jan. 9, 2018);
Youngevity Int'l, Corp. v. Smith, No.
16CV704-BTM(JLB), 2017 U.S. Dist. LEXIS 206797, at *13 (S.D.
Cal. Dec. 15, 2017). Plaintiffs' contention that they
have sufficient interest in the subpoenas is meritless in the
context of jurisdiction analysis. As discussed below, a
party's interest is a matter of standing, not
jurisdiction, and Rule 45 clearly vests jurisdiction in
Plaintiffs Lack Standing to Challenge the Subpoena Duces