The formation of an MDL for product liability litigation concerning your company’s product comes with obvious downsides: the centralized proceedings give an air of legitimacy to the cases (even if the cases are decidedly illegitimate), which in turn attracts additional media attention, advertising by plaintiff firms, and lawsuits. On the other hand, an MDL eliminates duplicative discovery, coordinates scheduling deadlines, ensures consistent rulings on pretrial matters, and thus has the potential to reduce overall litigation costs.

If an MDL is formed, steps can be taken to maximize the efficiency of centralization while minimizing the risks – for example, short form pleadings; federal/state coordination; Lexecon waivers; Lone Pine orders; and statute of limitations “bar dates.” However, one common perpetrator of increased complexity and litigation costs has received little attention from litigants and the courts: nonparty subpoenas and their resulting decentralized, multijurisdictional “satellite” litigation. This inefficiency is only becoming more pronounced as mass tort litigants increasingly rely on evidence from nonparty academics and scientific researchers.

THE PROBLEM

Rule 45 provides that a subpoena “must issue from the court where the action is pending.”[1] In the context of an MDL, the issuing court is the MDL transferee court (the MDL court). However, any motions to quash, modify, or enforce a subpoena must be filed in “the court for the district where compliance is required.”[2] For subpoenas seeking the production of documents, the place of compliance must be “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A). Thus, when an MDL court issues subpoenas to multiple nonparties across the country, the issuing party can expect to engage in (often protracted) litigation on multiple fronts, despite the existence of an MDL created precisely for the purpose of centralizing litigation.

The multidistrict litigation statute does not explicitly address this problem. However the statute does address a nearly identical problem: the need for the MDL court to oversee depositions conducted in other districts. On this issue, the statute grants MDL courts “the powers of a district judge in any district for the purpose of conducting pretrial depositions”.[3] Fortunately, the overwhelming weight of authority has interpreted this power to include the power to enforce document-only subpoenas not associated with a deposition in any district.[4]

THE SOLUTION(S)

While the MDL court would likely find that it has jurisdiction to decide motions related to your subpoenas, how do you ensure any motions to quash that are filed by the nonparties land in the MDL court to begin with? Three strategies have emerged, each with different levels of precedent and efficiency.

1. MOTION TO THE MDL COURT FOR CENTRAL ENFORCEMENT OF SUBPOENAS:

The most efficient approach is to file a motion with the MDL court requesting central enforcement of all nonparty subpoenas before those subpoenas are served. While this is an uncommon approach, it is not unprecedented. In recent years, at least two MDL courts have entered unpublished orders providing for the central enforcement of subpoenas issued by those MDL courts and directing that any objections or motions to quash the subpoenas must be filed directly in the MDL court.[5] In both of these instances, the orders have provided that attorneys representing the subpoenaed nonparties may make a limited appearance in the MDL court for purposes of contesting a subpoena without being deemed to otherwise consent to the jurisdiction of the MDL court.

As long as there is no reason to believe the MDL court would be hostile to your subpoenas, this strategy is the best approach. The primary advantage is that, if successful on the motion, the MDL court’s order could be served on the nonparties along with the subpoenas, thus heading off any attempts by the nonparties to oppose the subpoenas in their local district courts rather than in the MDL court. This would accomplish streamlined and consistent rulings by one court that is already familiar with the issues in your litigation.

There are two notable disadvantages to filing a motion for centralization, however. First, plaintiffs’ counsel may use the opportunity to oppose not only the centralization of subpoena-enforcement, but the subpoenas themselves. Any such attempts should be easily rebuffed however, since, in most cases, only the nonparties receiving the subpoenas would have standing to challenge them. Secondly, if the MDL court denies the motion to centralize enforcement, the MDL court’s order may later be used by nonparties seeking to persuade their local compliance courts not to transfer their motions to quash.

2. MOTIONS TO THE JPML FOR INDIVIDUAL TRANSFER ORDERS:

In cases in which centralization through the MDL court is not likely to occur or has been denied, the next-best strategy may be to seek individual transfers by the Judicial Panel on Multidistrict Litigation (JPML). This is another uncommon approach, but it is also not unprecedented. On at least two occasions, the JPML has transferred actions involving motions to quash a subpoena from a compliance court to an MDL court.[6] However, the JPML has also stated that its decisions on such transfers are made on a case-by-case basis, and it has thus declined to issue orders directing that all future third-party disputes be filed in the MDL transferee court.[7]

The main drawback of this approach is increased motion practice. The subpoena-issuing party would need to file separate motions with the JPML for transfer of any motions to quash filed by nonparties. For any nonparties who opposed the clerk’s conditional transfer order (CTO), the issue would have to be briefed to the JPML. Moreover, local counsel would need to be obtained in each of the compliance districts, and if any of the compliance courts did not issue an order staying the proceedings before them, additional briefing and argument on the motions would continue in those district courts simultaneously with the briefing to the JPML. Another concern is whether the timing of the motions would allow for transfer by the JPML. The JPML meets and issues orders infrequently, and some compliance courts may issue an order on the motion to quash before it has been transferred by the JPML.

The advantage of seeking transfer through the JPML is that, assuming the timing of the subpoenas and related motions can be successfully navigated, all of the decisions on transfer would be decided consistently.

3. MOTIONS TO THE COMPLIANCE COURTS FOR INDIVIDUAL TRANSFER ORDERS:

If centralization cannot be achieved through the MDL court or the JPML, individual transfer of subpoena-related motions may still be pursued in the local compliance courts. Rule 45 provides that a compliance court may transfer a subpoena-related motion to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.[8] The rule does not define “exceptional circumstances,” but the Advisory Committee notes explain that transfer may be appropriate “to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts.”[9] The Court must weigh the burden on the party responding to the subpoena in the event of a transfer against factors such as “judicial economy, docket management, and the risk of inconsistent rulings.”[10]

Seeking transfer in the local district court of each nonparty receiving a subpoena is the least favored approach for purposes of streamlining subpoena practice. However, in the absence of other options, it will usually be worthwhile to pursue individual transfers to obtain consistent rulings on the underlying subpoenas from the MDL court that is familiar with your litigation. You may also benefit from some decrease in the time and expense necessary to litigate any motions that are successfully transferred, simply because the MDL court will not need to be educated on the issues and likely will dispatch the motions in an efficient and predictable manner.

CONCLUSION

Before issuing subpoenas to geographically dispersed nonparties, MDL litigants should consider strategies to reduce the time and expense of litigation associated with the subpoenas. The most efficient approach is to file a motion with the MDL court to centralize the enforcement of the subpoenas. If such a motion is denied or is not pursued, individual transfer of any subpoena-related motions can still be sought through the JPML or in the nonparties’ local district courts. In most cases, centralized enforcement of the subpoenas by the MDL court will result in consistent decisions on issues raised by the nonparties, and will eliminate duplicative discovery efforts in multiple district courts.

---

[1] Fed. R. Civ. P. 45(a)(2).

[2] Fed. R. Civ. P. 45(c)(3)(A).

[3] 28 U.S.C. § 1407(b) (emphasis supplied).

[4] See e.g. U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F. Supp. 2d 270, 273 (D.D.C. 2002); In re Asbestos Prods. Liab. Litig., 256 F.R.D. 151, 154 (E.D. Pa. 2009); In re New England Compounding Pharmacy, Inc. Products Liab. Litig., 2013 WL 6058483, at *2 (D. Mass. Nov. 13, 2013); In re Neurontin Marketing, Sales Practices, and Products Liability Litigation, 245 F.R.D. 55 (D. Mass. 2007); In re Clients & Former Clients of Baron & Budd, P.C., 478 F.3d 670, 671 (5th Cir.2007); In re Subpoena Issued to Boies, Schiller & Flexner LLP, 2003 WL 1831426 (S.D.N.Y. Apr. 3, 2003); In re Sunrise Sec. Litig., 130 F.R.D. 560, 586 (E.D. Pa. 1989); In re Welding Rod Prod. Liab. Litig., 406 F. Supp. 2d 1064, 1065 (N.D. Cal. 2005); HCA, Inc. v. U.S. ex rel. Pogue, 2002 WL 31953748 (M.D. Tenn. Nov. 21, 2002); In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. 30, 32–33 (D. P.R. 1987); but see VISX, Inc. v. Nidek Co., 208 F.R.D. 615, 616 (N.D. Cal. 2002) (“§ 1407(b) expands a transferee court’s discovery powers only to pretrial depositions. Had Congress wanted to expand these powers to document subpoenas, it would have said so.”).

[5] See Order on Central Enforcement of Subpoenas (Dkt. No. 193), In re New England Compounding Pharmacy, Inc. Products Liab. Litig., No. MDL 13-2419-RWZ (D. Mass. June 21, 2013) available at https://www.gpo.gov/fdsys/pkg/USCOURTS-mad-1_13-md-02419/pdf/USCOURTS-mad-1_13-md-02419-7.pdf (last visited June 3, 2016); Order on Central Enforcement of Subpoenas (Dkt. No. 220), In re Niaspan Antitrust Litigation, MDL 2460 (E.D. Pa. June 9, 2015).

[6] See In re: Online DVD Rental Antitrust Litig., 744 F. Supp. 2d 1378 (U.S. Jud. Pan. Mult. Lit. 2010) (ordering transfer and finding that “[t]he deposition testimony sought from [nonparty] Blockbuster involves questions of fact relating to the conspiracy alleged in MDL No. 2029. Indeed, the transferee judge has identified Blockbuster as an important third-party with information central to the issues in MDL No. 2029. Moreover, requiring a judge in the Northern District of Texas to learn the particulars of MDL No. 2029 would not promote the just and efficient conduct of this action or the litigation as a whole when the transferee judge is so thoroughly familiar with the issues in this litigation. Rather, this litigation would be best served by allowing the transferee judge to determine the scope of discovery in the MDL.”); see also In re Fosamax Prods. Liab. Litig., MDL No. 1789, Transfer Order (J.P.M.L. June 9, 2009) (unpublished order).

[7] In re: Online DVD Rental Antitrust Litig. 744 F. Supp. 2d at 1378-1379.

[8] Fed. R. Civ. P. 45(f).

[9] Fed. R. Civ. P. 45(f) advisory committee’s note.

[10] Agincourt Gaming, LLC v. Zynga, Inc., 2014 U.S. Dist. LEXIS 114348, at *16 (D. Nev. Aug. 15, 2014).

Finis