In Re: Sealed Case ( 1998 )

United States Court of Appeals
for the District of Columbia Circuit
Argued March 20, 1998 Decided April 1, 1998
No. 98-5062
In re: Sealed Case No. 98-5062
On Petition for Writ of Mandamus Directed to the United
States District Court for the District of Columbia
(No. 98ms00042)
Herbert J. Miller, Jr., argued the cause and filed the
Petition for Writ of Mandamus.
Robert S. Bennett argued the cause and filed the
response.
Before: Williams, Henderson and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring Opinion filed by Circuit Judge Henderson.
Williams, Circuit Judge: Respondent, defendant in a
civil case pending in the United States District Court for
the Eastern District of Arkansas, served a subpoena duces
tecum on petitioner, a law firm, demanding production of
documents and testimony at a deposition in Washington, D.C.
That subpoena, in conformance with Federal Rule of Civil
Procedure 45(a)(2), issued from the United States District
Court for the District of Columbia. When petitioner
objected to the subpoena, respondent filed a motion to
compel in district court here, and petitioner responded with
a motion to quash the subpoena, also in district court here.
Further, suggesting that the trial court in Arkansas was
more familiar with the issues presented, respondent moved
the district court here to transfer the motions to the
Eastern District of Arkansas. Petitioner objected, but the
trial court granted the transfer motion. Petitioner
thereupon sought review of the transfer order via this
mandamus petition.
Finding that the district court lacked authority to
transfer the motions under the Federal Rules of Civil
Procedure, we vacate the order.
I.
Mandamus will issue only upon a showing that the
petitioner's right is "clear and indisputable," Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988), and that "no other adequate means to attain the
relief" exist, Allied Chemical Corp. v. Daiflon, Inc., 449
U.S. 33, 35 (1980). We leave to part II the analysis of
petitioner's right and here determine only the threshold
issue of the adequacy of other means of relief.
A conceivable alternative would have been for
petitioner to proceed by direct appeal. In all likelihood,
of course, the only consequence of finding that this was a
viable alternative would be a need to relabel the mandamus
action an appeal, but it turns out that appeal is not
available.
Ordinarily a discovery order is not considered final
and hence may not be immediately appealed under 28 U.S.C.
 1291. A party seeking interlocutory review must instead
disobey the order and be cited for contempt. He may then
appeal the contempt order, which is considered final, and
argue that the discovery order was flawed. See Church of
Scientology of California v. United States, 506 U.S. 9, 18
n.11 (1992) (citing United States v. Ryan, 402 U.S. 530, 532
(1971)); In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir.
1997). Under the so-called Perlman doctrine, however,
discovery orders addressed to disinterested nonparties are
immediately appealable. See Church of Scientology, 506
U.S. at 18 n.11 (citing Perlman v. United States, 247 U.S. 7(1918); In re Sealed Case, 655 F.2d 1298, 1300-01 (D.C. Cir.
1981) ("Sealed Case I").
Perlman appears inapplicable to these facts, however.
It reflected concern that where the subject of the discovery
order (characteristically the custodian of documents) and
the holder of a privilege are different, the custodian might
yield up the documents rather than face the hazards of
contempt, and would thereby destroy the privilege. See
Sealed Case I, 655 F.2d at 1300-01. Here, however,
petitioner is asserting its own interests in work product
and in not being subject to what it claims is burdensome and
abusive discovery, plus the privilege of its client (which
it is normally duty-bound to assert, see Republic Gear Co.
v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir. 1967);
Model Rules of Professional Conduct Rule 1.6 (1995)). Thus
it has the requisite incentives (as well as the clear
ability) to risk contempt and thereby force review into the
usual channel. Accordingly, direct appeal is unavailable as
an alternative avenue for relief. Respondent suggests that petitioner may file a motion
in Arkansas requesting that the matter be retransferred.
This strikes us as plainly inadequate. Petitioner rests its
objection to the transfer order precisely on the theory that
the Rules of Civil Procedure protect it from having to
litigate in or travel to any forum other than that which
issued the subpoena, i.e., the district court for the
District of Columbia. Sending it to the federal court in
Arkansas to press that claim obviously denies it, in a way
that cannot be remedied on appeal.
This circuit has frequently exercised its mandamus
jurisdiction to vacate transfer orders, especially where the
transfer was beyond the district court's power, as
petitioner alleges here. See, e.g., Ukiah Adventist Hosp.
v. FTC, 981 F.2d 543, 548 (D.C. Cir. 1992); In re Briscoe,
976 F.2d 1425, 1427 (D.C. Cir. 1992); In re Scott, 709 F.2d
717, 719 (D.C. Cir. 1983). Respondent tries to distinguish
these cases as involving transfers of an entire civil
action, as opposed to a motion. The distinction may bear on
the district court's power to make the transfer, but we do
not see how it undermines the case for mandamus relief.
Petitioner is not a party to the underlying litigation.
From its perspective, and indeed from ours as well, the
controversy between it and the respondent consists solely of
the discovery dispute. Thus, in the absence of any
explanation by respondent of his conclusory argument against
application of the principle allowing mandamus for review of
a transfer order, we find it available as it would be to any
transfer of any case, large or (as here) small.
The writ is available not only to "confin[e] 'an
inferior court to a lawful exercise of its prescribed
jurisdiction'" In re Halkin, 598 F.2d 176, 198 (D.C. Cir.
1979) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21,
26 (1943)), but also "to prevent abuses of a district
court's authority to transfer a case." Ukiah, 981 F.2d at
548 (quoting In re Chatman-Bey, 718 F.2d 484, 486 (D.C. Cir.
1983). Mandamus vacating the transfer order and keeping the
matter in this circuit would, moreover, be "in aid of" our
jurisdiction, thus fitting neatly within the language of the
All Writs Act, 28 U.S.C.  1651(a). Satisfied that the
nature of the alleged error is such as to permit correction
by mandamus, we now turn to the merits.
II.
The district court rested its conclusion largely on the
Advisory Committee's Note to the 1970 amendments to Rule
26(c), but the place to start, whatever the Note's ultimate
relevance, is the text of Rule 45. That text offers no
authorization to transfer a motion to quash and seems at
least implicitly to forbid it. The rule permits, and in
some circumstances requires, "the issuing court" to quash or
modify a subpoena. See Fed. R. Civ. P. 45(c)(3)(A). It
allows enforcement of a subpoena following objections only
"pursuant to an order of the court by which the subpoena was
issued." Fed. R. Civ. P. 45(c)(2)(B). It provides that
failure to obey a subpoena may be deemed contempt "of the
court from which the subpoena issued." Fed. R. Civ. P.
45(e). All of this language suggests that only the issuing
court has the power to act on its subpoenas. See, e.g.,
Kearney v. Jandernoa, 172 F.R.D. 381, 383 n.4 (N.D. Ill.
1997); Byrnes v. Jetnet Corp., 111 F.R.D. 68, 69 (M.D.N.C.
1986). Subpoenas are process of the issuing court, see In
re Certain Complaints Under Investigation, 783 F.2d 1488,
1494-95 (11th Cir. 1986), and nothing in the Rules even
hints that any other court may be given the power to quash
or enforce them. See Productos Mistolin, S.A. v. Mosquera,
141 F.R.D. 226, 227-29 (D. P.R. 1992) (quoting Advisory
Committee Notes on 1991 amendments).
There are other textual difficulties with transfer of
motions to quash. Rule 45(c)(3)(A)(ii) directs the issuing
court to quash or modify a subpoena that requires a nonparty
to travel more than 100 miles from the place where the
nonparty "resides, is employed or regularly transacts
business in person." This restriction is obviously hard to
square with a principle that allows the issuing court to
transfer the motion to quash to another district--in this
case, the parties tell us, a district 892 miles away.
Perhaps more significant, not only would a transferee court
lack statutory authority to quash or enforce another court's
subpoena, it would often lack personal jurisdiction over the
nonparty. The principle that courts lacking jurisdiction
over litigants cannot adjudicate their rights is elementary,
and cases have noted the problem this creates for the
prospect of transferring nonparty discovery disputes. See
Byrnes, 111 F.R.D. at 70 & nn.1 & 2; cf. Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 241 (1981) (noting requirement of
personal jurisdiction in alternative forum for dismissal
under the forum non conveniens doctrine); 28 U.S.C.
 1404(a) (allowing transfer to any other district "where
[the action] might have been brought").
More generally, the rules governing subpoenas and
nonparty discovery have a clearly territorial focus.
Applications for orders compelling disclosure from
nonparties must be made to the court in the district where
the discovery is to be taken; failure to comply with such an
order is a contempt of that court. Fed. R. Civ. P.
37(a)(1); 37(b). Subpoenas for attendance at a trial must
issue from the court for the district in which the trial is
held; for attendance at a deposition, from the court for the
district in which the deposition is to be taken. Fed. R.
Civ. P. 45(a)(2). (Rule 34(c) explicitly makes the subpoena
process of Rule 45 the route to compelling production of
documents from nonparties.) It may well be true, as
respondent suggests, that the trial court will be better
able to handle discovery disputes. But Congress in the
Rules has clearly been ready to sacrifice some efficiency in
return for territorial protection for nonparties. Cf.
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 1998
WL 85319, at *9 (U.S. 1998) (acknowledging that broader
district court authority to transfer cases might be
desirable but observing that "the proper venue for resolving
that issue remains the floor of Congress").
What of Rule 26(c), springboard for the Advisory
Committee Note on which the district court relied? That
rule authorizes the issuance of protective orders by "the
court in which the action is pending or alternatively, on
matters relating to a deposition, the court in the district
where the deposition is to be taken." It says nothing of
transfer. An Advisory Committee Note to the 1970 amendments
states that "[t]he court in the district where the
deposition is being taken may, and frequently will, remit
the deponent or party to the court where the action is
pending."
We can assume that if Rule 45 were ambiguous, one might
look to a clear Advisory Committee Note to resolve that
ambiguity--maybe even an Advisory Committee Note to a
completely different rule, and maybe even a Note written 21
years before the 1991 amendment added subdivision 45(c) to
"clarify and enlarge the protections" afforded witnesses.
Advisory Committee Note to Federal Rule of Civil Procedure
45. But cf. Libretti v. United States, 516 U.S. 29, 41
(1995) (rejecting use of Advisory Committee Note on one rule
to elucidate meaning of another, and pointing to different
dates of rule and Note).
But before tackling all the ifs and stretches in that
assumption, it is useful first to address the text of the
Note. It refers to the possibility that "[t]he court in the
district where the deposition is being taken may, and
frequently will, remit the deponent or party to the court
where the action is pending." Respondent's argument takes
"remit the deponent or party" to mean "transfer the motion."
But that is not the phrase's meaning unless the Advisory
Committee used English incorrectly, or at least
eccentrically. "Remit" can indeed mean "to submit or refer
(something) for consideration, judgment, decision or action
. . . ." Webster's Third New International Dictionary 1920
(1981). That usage would make sense if the motion were the
object of "remit." But it isn't. The object of "remit" is
an active person or entity, "the deponent or party." Thus
the relevant usage supplied by the dictionary is "to refer
(a person) for information or help (as to a book or
person)." Id.The Advisory Committee Note is thus more naturally read
to suggest that the court for the district where the
deposition is to be taken may stay its action on the motion,
permit the deponent to make a motion for a protective order
in the court where the trial is to take place, and then
defer to the trial court's decision. See Kearney, 172
F.R.D. at 383. This reading cures the jurisdictional
problems; a nonparty that moves for a protective order in
the court of the underlying action thereby submits to that
court's jurisdiction.
Such a reading might seem to raise a new question: does
it allow the nonparty witness territorial convenience with
respect to motions to quash but not with respect to motions
for a protective order? They are not obviously so
different; in fact there is broad overlap in the grounds for
granting the two motions. Compare Fed. R. Civ. P. 26(c)(1)-
(4) with Fed. R. Civ. P. 45(c)(3)(A). As it turns out, the
differential treatment is only apparent. The operation of
the subpoena rules in fact grants nonparty witnesses the
privilege of choosing to litigate in their home districts
regardless of how relief is sought.
In the end what affords the nonparty deponent this
territorial protection is that the rules vest power to
compel discovery from a nonparty, and to impose contempt
sanctions for non-compliance, in the subpoena-issuing court.
Fed. R. Civ. P. 37(a)(1); Fed. R. Civ. P. 45(e). Rule 26(c)
permits that court to stay its proceedings on a nonparty
deponent's motion for a protective order pending action by
the trial court, and to defer to the trial court's
resolution of that motion. The rules may well allow similar
abstention on a motion to quash, followed by deference to
the trial court's decision on a motion for a protective
order; this was the technique used in Kearney. But if the
nonparty deponent fails to take the bait and move for a
protective order in the trial court, the issuing court must
make the decision whether discovery may be had, and its
scope, since it is the only court with the power to order
enforcement.
Other courts have recently adopted this reading of the
Advisory Committee Note. See, e.g., Orthopedic Bone Screw
Prods., 79 F.3d at 48 (reading the Note's use of "remit" as
referring simply to power in court that issued subpoena to
stay motion by nonparty witness for protective order and
defer to decision of the district court where discovery
proceedings in the underlying action were pending under 28
U.S.C.  1407); Cent. States, Southeast & Southwest Areas
Pension Fund v. Quickie Transport Co., 174 F.R.D. 50, 51 n.1
(E.D. Pa. 1997); Kearney, 172 F.R.D. at 383. It appears
also to have been the understanding of courts and
commentators nearer the time of the 1970 Advisory Note. See
Socialist Workers Party v. Att'y Gen., 73 F.R.D. 699, 701
(D. Md. 1977) (quoting 1976 Moore's Federal Practice).
As this reading fits so easily with the text of the
rules, it seems more compelling than respondent's proposed
finding of a transfer power that is bereft of linguistic
support in the rules. See United States v. Carey, 120 F.3d
509, 512 (4th Cir. 1997) ("But the Advisory Committee Note
is not the law; the rule is. Accordingly, if the Advisory
Committee Note can be read in two ways, we must read it, if
we consult it at all, in a manner that makes it consistent
with the language of the rule itself.").
The district court's reliance on the Advisory Committee
Note to Rule 26(c) is not, to be sure, unique. In dicta
other courts have suggested that the Note implies the
existence of a transfer power for all discovery disputes
involving nonparties, including motions to quash subpoenas.
See, e.g., In re Digital Equipment Corp., 949 F.2d 228, 231
(8th Cir. 1991); Petersen v. Douglas County Bank & Trust
Co., 940 F.2d 1389, 1390 (10th Cir. 1991). But "if the rule
and the note conflict, the rule must govern." Carey, 120
F.3d at 512.
In short, the idea that a district court may transfer a
motion to quash a subpoena rests on a misreading of a non-
authoritative source that relates to a different rule. The
Rules of Civil Procedure themselves do not provide any basis
for such authority, and district courts have no inherent
powers to transfer. See Hicks v. Duckworth, 856 F.2d 934,
936 (7th Cir. 1988); cf. Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 1998 WL 85319, at *6-9 (U.S. 1998).
Because the district court here exceeded its authority,
mandamus will issue to vacate the transfer order.
So ordered.
Karen LeCraft Henderson, Circuit Judge, concurring:
I agree with the majority that the district court's decision to transfer the
cross-motions to quash and to compel compliance with the subpoena is reviewable
on petition for mandamus. See Hicks v. Duckworth, 856 F.2d 934, 935 (7th Cir.
1988) ("The use of mandamus (28 U.S.C.  1651(a)) to correct an erroneous
transfer out of circuit has been approved. It is difficult to see how such an error
could be corrected otherwise."). I also agree that the district erred in transferring
the motions to the Eastern District of Arkansas. I stop short, however, of deciding,
as does the majority, that a district court lacks authority to order a transfer.
Assuming such authority exists, it should be reserved for the extraordinary,
complex case in which the transferee court is plainly better situated to resolve the
discovery dispute. This is not that case. The respondent has made no showing that
the reasons cited for quashing the subpoena--that it is overbroad and covers
information that is privileged, not relevant to the underlying lawsuit and sought
"for improper purposes"--cannot be readily assessed by the district court here as
such arguments routinely are. See, e.g., Linder v. Department of Defense, 133
F.3d 17, 24 (D.C. Cir. 1998); Food Lion, Inc. v. United Food & Commercial
Workers Int'l Union, 103 F.3d 1007, 1013-14 (D.C. Cir. 1997). In any event, I
believe the court abused its discretion in attempting to transfer the motions here
without inquiring into the personal jurisdiction of the transferee court over the
petitioner, a sine qua non for deciding the discovery motions. See In re Sealed
Case, 832 F.2d 1268, 1270 (D.C. Cir. 1987) (reversing district court order
compelling production of companies' records where Independent Counsel failed to
make "the requisite showing" that district court "has personal jurisdiction over
each of the companies whose records it seeks"); but cf. EEOC v. National
Children's Center, 98 F.3d 1406, 1410-11 (D.C. Cir. 1996) (reversing as "abuse of
discretion" district court decision to seal portion of record because court did not
"articulate its reasons for electing to seal" and remanding "so that the court can
further explain its decision"). I therefore agree with the majority that the district
court's order should be vacated.