Third Party Subpoena to Boris Malyugin, M.D. ph.D v. Valeant Pharmaceuticals International ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In re Third Party Subpoena to Boris Case No. 1:18-mc-00049 (TNM)
Malyugin, M.D. Ph.D.
ICONLAB INC. et al.,
Plaintiffs,
v. Case No. 8:16-cv-01321-LJS-KES
VALEANT PHARMACEUTICALS
INTERNATIONAL, INC. et al.,
Defendants.
MEMORANDUM ORDER
Dr. Boris Malyugin, a Russian national, seeks to quash a third-party subpoena served on
him on April 15, 2018 noticing a deposition and the production of documents for April 17, 2018.
Mem. in Supp. of Emergency Mot. to Stay and Quash Third-Party Subpoena (“Mot. to Quash”)
2, 8, ECF No. 1-1. Because the subpoena was served two days prior to the deposition, and
compliance will require Dr. Malyugin to travel more than 100 miles from where he resides, is
employed, or regularly transacts business in person, the motion to quash is granted. See Fed. R.
Civ. P. 45(d)(3)(A)(i)-(ii). This Order is issued without prejudice for the parties seeking the
testimony and evidence to re-serve Dr. Malyugin with a subpoena in compliance with Rule 45.
In November 2016, Dr. Malyugin executed a declaration in the ongoing matter of Iconlab
Inc. et al. v. Valeant Pharms. Int’l, Inc. et al., 8:16-cv-01321, in the United States District Court
for the Central District of California. Defs.’ Opp. to Mot. to Quash (“Defs.’ Opp”) Ex. 5, ECF
No. 2-6. The Second Amended Complaint, the operative Complaint, identifies Dr. Malyugin by
name a multitude of times and seems to incorporate the information contained in Dr. Malyugin’s
declaration. See id. Ex. 4, ECF No. 2-5. Because of this, several defendants (the “Defendants”)
in the underlying litigation sought, starting on March 22, 2018, to depose Dr. Malyugin and sent
him and the plaintiffs in the underlying litigation a series of communications about his
deposition. Defs.’ Opp. 6-7. Dr. Malyugin did not respond to these communications. Id. Once
the Defendants learned that Dr. Malyugin was scheduled to be in the United States––more
specifically, in the District of Columbia––for the annual meeting of the American Society of
Cataract and Refractive Surgery and the American Society of Ophthalmic Administrators (to be
held April 13, 2018 to April 17, 2018), the Defendants executed and served Dr. Malyugin with a
subpoena noticing his deposition for April 17, 2018. Defs.’ Opp. 7-8; Mot. to Quash 1-2.
Rule 45(d)(3)(A) requires a court to “quash or modify a subpoena that (i) fails to allow a
reasonable time to comply; (ii) requires a person who is neither a party nor a party’s officer to
travel more than 100 miles from where that person resides, is employed, or regularly transacts
business in person [with one exception not relevant here]; (iii) requires disclosure of privileged
or other protected matter . . . ; or (iv) subjects a person to undue burden.” Subparts (i) and (ii)
are relevant here. The subpoena was served on Dr. Malyugin on April 15, 2018, two days prior
to the date of compliance. Two days’ notice is plainly unreasonable. See, e.g., Judicial Watch,
Inc. v. U.S. Dep’t of Commerce, 34 F. Supp. 2d 47, 49-50 (witness entitled to object to a
subpoena served one or two days before the scheduled deposition); Rules of the United States
District Court for the District of Columbia Civil Rule 30.1 (“Service of a deposition seven days
in advance of the date set for taking the deposition shall constitute ‘reasonable notice’ to a party
as required by Fed. R. Civ. P. 30(b)”). Though the Defendants made good faith efforts to seek
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discovery from Dr. Malyugin through email and other communications as early as March 22,
2018, service was not made until April 15, 2018. Unfortunately for the Defendants, attempted
service or negotiations to effect service are insufficient. The primary case cited by both parties,
Brown v. Hendler, 2011 WL 321139 at *2 (S.D.N.Y. Jan. 31, 2011), involved a scenario where
the potential witness was served with nine days to comply. See Mot. to Quash 6; Defs.’ Opp. 9-
10. The district court in that case noted that “many courts have found fourteen dates from the
date of service as presumptively reasonable.” Id. (emphasis added). Thus, the subpoena fails to
allow a reasonable time to comply. See Fed. R. Civ. P. 45(d)(3)(A)(i).
While Dr. Malyugin is presently in the District of Columbia and therefore would not
currently need to “travel more than 100 miles from where that person resides, is employed, or
regularly transactions business in person [in this case, the Russia Federation],” his stay in the
District of Columbia is temporary. See Mot. to Quash 1-2 (the annual meeting for which
Dr. Malyugin is in the District of Columbia ends on April 17, 2018). It is apparently uncontested
that he lives and works in Russia. See generally Defs.’ Opp. In light of Rule 45(d)(3)(A)(i)’s
requirement that a subpoena provide a reasonable amount of time to comply, re-noticing the
deposition with a reasonable timeframe for compliance may then violate Rule 45(d)(3)(A)(ii)’s
geographical constriction.
The Defendants argue that the subpoena can be modified to give Dr. Malyugin a
reasonable time to comply, and that the Defendants are amenable to other measures to lessen any
burden on Dr. Malyugin’s compliance. Defs.’ Opp. 13 (noting the Defendants’ willingness to
conduct the deposition by video conference and the document production by electronic means).
While this Circuit has expressed “the importance of the modification alternative” and instructed
courts in this District to “carefully examine the circumstances presented to it and, when
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appropriate, consider the possibility of modifying the subpoena rather than quashing,” Northrop
Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984), the circumstances in
this case are unique: service was effected only two days before the subpoena was due,
Dr. Malyugin is a Russian citizen, he resides and works in Russia, and he is only in the District
of Columbia briefly to attend a professional conference. See Mot. to Quash. 6. Under these
circumstances, modification of the subpoena would be ineffectual to bring it into conformance
with Rule 45’s requirements. While the Defendants suggest that this Court should follow the
lead of Probulk Carriers Ltd. v. Marvel Int’l Mgmt. and Transp., 180 F. Supp. 3d 290, 292, 294
(S.D.N.Y. 2016), in which a subpoena served on a Turkish resident was modified by the court to
allow for the deposition to occur in Turkey, that case did not apparently involve a violation of the
reasonable notice provision of Rule 45, and the case already involved significant international
components that are absent in the current case. It is not immediately clear to the Court that a
deposition in Russia is either acceptable to the Defendants or lawful under the circumstances of
the current case. The Defendants, however, should not interpret this Order as prohibiting re-
serving Dr. Malyugin with a subpoena in compliance with Rule 45.
Last, Dr. Malyugin seeks sanctions on the Defendants under Rule 45(d)(1). I do not find
that sanctions are warranted. Given the declaration that Dr. Malyugin executed which attested to
having personal knowledge of the facts in the declaration and his ability to “competently testify
thereto as if called as a witness in this proceeding,” and the numerous references to Dr. Malyugin
in the Second Amended Complaint, he is clearly a relevant witness in the underlying litigation.
See Defs.’ Opp. Exs. 4-5; Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . .”). The Defendants
have persistently and in good faith contacted Dr. Malyugin and/or the plaintiffs in the underlying
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