In re Disposable Contact Lens Antitrust Litig.

306 F.Supp.3d 372

IN RE: DISPOSABLE CONTACT LENS ANTITRUST LITIGATION

No. 17–mc–00247 (KBJ)

No. 3:15–md–02626

United States District Court, District of Columbia.

Signed May 18, 2017

MEMORANDUM OPINION AND ORDER

KETANJI BROWN JACKSON, United States District Judge

The movants in this subpoena-enforcement matter are fourteen individual plaintiffs who are involved in a complex putative antitrust class action that is being litigated as a multidistrict litigation ("MDL") in the U.S. District Court for the Middle District of Florida ("the Issuing Court"). (See Mem. in Supp. of Mot. to Transfer or Enforce the Subpoena ("Movs.' Mem."), ECF No. 1–1, at 8–9.)¹ In connection with that lawsuit, Movants issued a subpoena duces tecum to Respondent (a third party who is not involved in the underlying MDL) and thereby ordered Respondent to produce certain documents in August of 2016, at a law firm in Washington, DC. (See Subpoena to Produc. Docs., Information, or Objects or to Permit Inspection of Premises in a Civil Action ("Subpoena"), Ex. A to Decl. of Nathaniel C. Giddings ("Giddings Decl."), ECF No. 1–3.) When Respondent refused to comply with the subpoena, Movants filed a motion to enforce the subpoena with the Issuing Court, and both sides then briefed that motion fully. But the Issuing Court eventually decided, per Federal Rule of Civil Procedure 45, that it lacked the authority to rule on Movants' motion to enforce the subpoena, unless Respondent consented. (See Order ("Conditional Denial Order"), MDL ECF No. 384, at 2 (citing Fed. R. Civ. P. 45(d)(2)(B)(i), which states, inter alia , that a party seeking to compel compliance with a subpoena must file its motion in "the district where compliance is required").)² Respondent refused to consent to the Issuing Court's exercise of authority over Movants' ripe subpoena-enforcement motion. (See Notice Regarding Pls.' Mot. to Enforce the Subpoena on Dr. Alan Glazier, MDL ECF No. 386; Email of Jan. 19, 2017, Ex. K to Giddings Decl., ECF No. 1–13, at 2); see also Fed. R. Civ. P. 45(f) (permitting the court where compliance is required to transfer to the issuing court a motion to enforce a subpoena "if the person subject to the subpoena consents or if the court finds exceptional circumstances"). As a result, the Issuing Court ultimately denied the motion to enforce without prejudice (see Order, MDL ECF No. 389), which prompted Movants to initiate the instant miscellaneous action in this Court.

Before this Court at present is the first filing in this action: a motion by Movants that requests that this Court transfer their subpoena-enforcement motion to the Issuing Court under Rule 45(f), or in the alternative, enforce the subpoena. (See Mot. to Transfer or Enforce the Subpoena, ECF No. 1.) Pursuant to Rule 45(f), this Court has provided Respondent with another opportunity to consent to the transfer of the subpoena dispute to the Issuing Court (see Min. Order of Mar. 16, 2017), and Respondent, who is proceeding pro se , has once again refused (see Resp. to Pls.' Mot. to Transfer or Enforce the Subpoena ("Resp't's Transfer Opp'n"), ECF No. 8, at 2). Movants maintain that there are exceptional circumstances that warrant transfer under Rule 45(f) in any event (see Movs.' Mem. at 16–17), and for the reasons explained below, this Court agrees. In short, after considering the applicable factors, this Court concludes that transferring the motion to enforce the subpoena to the Issuing Court will avoid disrupting that court's management of the underlying complex MDL, will not burden Respondent, and will ensure that this dispute is handled by the tribunal that is best situated to decide the merits of the subpoena-enforcement issue. Moreover, all of these interests clearly outweigh any interest that Respondent has in having this Court resolve the motion to enforce the subpoena. Consequently, Movants' motion to transfer their motion to enforce the subpoena will be GRANTED , and this matter will be TRANSFERRED to the U.S. District Court for the Middle District of Florida forthwith.

I. LEGAL STANDARDS GOVERNING TRANSFERS OF SUBPOENA DISPUTES UNDER FEDERAL RULE OF CIVIL PROCEDURE 45(f)

The Federal Rules of Civil Procedure contain a clear set of instructions regarding how subpoenas for documents, and also disputes related to such subpoenas, are to be handled. A subpoena to produce materials or to permit inspection "must issue from the court where the action is pending. " Fed. R. Civ. P. 45(a)(2) (emphasis added). But if the recipient of the subpoena objects to production or inspection, the "serving party may move the court for the district where compliance is required for an order compelling production or inspection." Id. at 45(d)(2)(B)(i) (emphasis added). Nevertheless, under Federal Rule of Civil Procedure 45(f) —which first appeared in the Federal Rules in 2013—the court where compliance is required can transfer a subpoena-related motion to compel to the court that issued the subpoena "if the person subject to the subpoena consents or if the court finds exceptional circumstances." Id. at 45(f).

Notably, the term "exceptional circumstances" is not defined in Rule 45(f). However, the Advisory Committee Notes to the 2013 amendments do provide some guidance; they state that, while the "prime concern" when considering transfer "should be avoiding burdens on local nonparties subject to subpoenas," in "some circumstances, ... transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation[.]" Fed. R. Civ. P. 45(f) advisory committee's note to 2013 amendment. The notes also make clear that "[t]ransfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion." Id. And the Advisory Committee further cautions that "the proponent of transfer bears the burden of showing that such circumstances are present[,]" and that "it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions." Id.

Thus, courts weighing transfer under Rule 45(f) must carefully balance the "interest of the nonparty in obtaining local resolution of [a subpoena-related] motion" against the interest "in ensuring the efficient, fair and orderly progress of ongoing litigation before the issuing court." Judicial Watch, Inc. v. Valle Del Sol, Inc. , 307 F.R.D. 30, 34 (D.D.C. 2014) (alterations, internal quotation marks, and citation omitted); see also Wultz v. Bank of China, Ltd. , 304 F.R.D. 38, 46 (D.D.C. 2014) ("[C]ourts have found exceptional circumstances warranting transferring subpoena-related motions ... when transferring the matter is in the interests of judicial economy and avoiding inconsistent results." (internal quotation marks and citation omitted) ). To do this, courts typically consider a variety of factors relating to the underlying litigation with the goal of determining if "the issuing court is in a better position to rule on the motion due to [its] familiarity with the full scope of the issues involved as well as any implications the resolution of the motion will have on the underlying litigation." In re UBS Fin. Servs., Inc. of Puerto Rico Sec. Litig. , 113 F.Supp.3d 286, 288 (D.D.C. 2015) (internal quotation marks and citation omitted).

Factors that can support a finding of exceptional circumstances warranting the transfer of a subpoena dispute to the court that issued the subpoena include, inter alia , the "complexity [of the underlying matter], [its] procedural posture, [the] duration of pendency [of the underlying case], and the nature of the issues pending before, or already resolved by, the issuing court in the underlying litigation." Id. (internal quotation marks and citation omitted).

II. ANALYSIS

As explained above, courts where compliance with a subpoena is required (such as this Court) consider various factors to evaluate whether there are exceptional circumstances that warrant transferring a subpoena dispute to the court that issued the subpoena under Rule 45(f). At bottom, the established considerations appear to relate to three overarching questions: (1) whether the underlying litigation will be disrupted if the subpoena dispute is not transferred; (2) whether the nonparty subpoena recipient will suffer undue burden or cost if the subpoena dispute is transferred; and (3) whether, based on various considerations, the issuing court is in the best position to rule on the motion to compel. This Court has undertaken to answer these questions with respect to the motion to enforce the subpoena at issue here in light of established factors, and because (1) the risk of disruption to the underlying MDL if this Court rules on the motion to enforce is substantial, (2) the interest in avoiding that disruption plainly outweighs the negligible burden to Respondent that transfer poses, and (3) the Issuing Court is best positioned to address the merits of Movants' motion to enforce, as explained below, the Court finds that exceptional circumstances exist for the purpose of Rule 45(f).

A. Resolution Of The Subpoena Dispute By This Court Risks Disruption Of The Underlying Multidistrict Litigation

As mentioned above, Movants are the plaintiffs in a complex putative class action that is currently ongoing in the Middle District of Florida. (See Movs.' Mem. at 8.) The complaint in that action alleges that various manufacturers of disposable contact lenses—including Alcon Laboratories, Inc., Johnson & Johnson Vision Care, Inc., Bausch & Lomb Inc., and CooperVision, Inc.—and a wholesaler, ABB Concise Optical Group, LLC (collectively, "the MDL Defendants"), have violated multiple federal and state antitrust and consumer protection laws. (See id. ) Movants specifically allege that the MDL Defendants conspired amongst themselves and with others to impose minimum resale prices on contact lens lines by subjecting them to unilateral pricing policies, that, in...