In Re: Asbestos Prod

United States Court of Appeals
Fifth Circuit
F I L E D
In the February 8, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 06-20835
m 06-20836
Summary Calendar
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IN RE:
CLIENTS AND FORMER CLIENTS OF BARON & BUDD, P.C.
AND
OCCUPATIONAL MEDICAL RESOURCES, INC.,
Petitioners.
_________________________
Petitions for Writs of Mandamus to
the United States District Court
for the Southern District of Texas
m H-06-MC-306
______________________________
Before SMITH, WIENER, and OWEN, seek a writ of mandamus ordering the district
Circuit Judges. court to rule on motions to intervene and mo-
tions to quash regarding a subpoena. We deny
PER CURIAM: the petition.
Petitioners are Occupational Medical Re- I.
sources, Inc. (“OMR”), and individuals whose The respondents are defendants in matters
records are in OMR’s possession. Petitioners pending in the Asbestos Multi-District Litiga-
tion Court No. 875 (“MDL 875”) in the Unit- extends beyond depositions so as to embrace
ed States District Court for the Eastern Dis- the instant subpoenas.
trict of Pennsylvania. Pursuant to Federal
Rule of Civil Procedure 45, respondents issued III.
a subpoena through the United States District Based on the overwhelming weight of auth-
Court for the Southern District of Texas for ority, we answer in the affirmative. A per-
the production of documents and material suasive analysis is set forth in a leading trea-
from OMR. The individuals moved to inter- tise:
vene, and to quash the subpoena, in the Texas
court. OMR also moved to quash in that A motion to quash or modify a subpoena
court; its motion remains unresolved. The is to be granted by “the court by which a
Texas court entered the order that is now be- subpoena was issued.” If a subpoena is is-
ing challenged; it (1) denied the individuals’ sued by a district court other than the one
motions and (2) directed that “[a]ll future in which the case is pending . . ., the proper
pleadings in this case be filed in MDL 875.” court in which to file a motion to quash or
Petitioners complain only about the second modify the subpoena is the issuing court,
part of the order. not the court in which the action is pending
....
II.
Petitioners rely largely on the text of rule ...
45(c)(3)(A), which states that “the court by
which a subpoena was issued shall quash or Certain federal statutes create an excep-
modify the subpoena . . . .” To the same ef- tion to the rule that only the issuing court
fect, rule 45(e) states that “[f]ailure by any may quash, modify, or enforce a subpoena.
person without adequate excuse to obey a sub- For example, the multidistrict litigation
poena served upon that person may be deemed (MDL) statute . . . authorizes a judge as-
a comtempt of the court from which the sub- signed an MDL action to “exercise the
poena issued.” Petitioners claim that by the powers of a district judge in any district for
text of these two provisions, only the Texas the purpose of conducting pretrial deposi-
court may enforce the subpoena and protect tions in such coordinated or consolidated
parties from its terms. pretrial proceedings.” [citing § 1407(b)]
This statute therefore authorizes the trans-
Respondents answer that MDL proceedings feree district court to exercise the authority
are to be treated differently. They rely primar- of a district judge in any district: The
ily on 28 U.S.C. § 1407(b), dealing with MDL transferee court may hear and decide mo-
proceedings, which provides that “[t]he judge tions to compel or motions to quash or
to whom such [MDL] actions are assigned . . . modify subpoenas directed to nonparties in
may exercise the powers of a district judge in any district. Though the statutory language
any district for the purpose of conducting pre- refers to “pretrial depositions,” the statute
trial depositions in such coordinated or con- wisely has been interpreted to embrace doc-
solidated pretrial proceedings.” The question ument production subpoenas as well.
of law that we must decide to evaluate the
mandamus petition is whether the authority 9 JAMES W. MOORE ET AL., MOORE’S FED-
conferred on the MDL court by § 1407(b) ERAL PRACTICE § 45.50[4], at 45-75 through
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45-77 (Matthew Bender 3d ed. 2006) (foot-
notes omitted). “In multidistrict litigation, the
court in charge of the consolidated proceed-
ings has the power to rule on a motion to
quash subpoenas.” 9A CHARLES A. WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2459, 2006 Supp., at 19 (West
1995). “The court in charge of consolidated
proceedings has power to rule on a motion to
quash subpoenas.” Id. at 19 n.14.2.
This conclusion is supported by the con-
vincing analyses of myriad district courts.
E.g., In re Auto. Refinishing Paint Antitrust
Litig., 229 F.R.D. 482, 485 n.5 (E.D. Pa.
2005); United States ex rel. Pogue v. Diabetes
Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d
270, 274-75 (D.D.C. 2002); In re Subpoenas
Served on Wilmer, Cutler & Pickering &
Goodwin Proctor LLP, 255 F. Supp. 2d 1, 1-3
(D.D.C. 2003); HCA, Inc. v. United States ex
rel. Pogue, 2002 WL 31953748, at *3-*4
(M.D. Tenn. 2002); In re Subpoena Issued to
Boies, Schiller & Flexner LLP, 2003 WL
1831426, at *1 (S.D.N.Y. 2003). Contra
Visx, Inc. v. Nidek Co., 208 F.R.D. 615, 616
(C.D. Cal. 2002).
The petition for writ of mandamus is DE-
NIED.
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