In re Nat'l Prescription Opiate Litig.

1

IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION

No. A-23-MC-00945-RP

Underlying Case No. 1:18-OP-45274-DAP

United States District Court, W.D. Texas, Austin Division

August 31, 2023

ORDER

SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.

Before the Court are Non-Party Texas State Agencies' Joint Motion to Quash Deposition Subpoenas and Subpoenas Duces Tecum, filed August 11, 2023 (Dkt. 1); Defendants' Opposed Motion to Transfer Venue, filed August 16, 2023 (Dkt 2); Non-Party Texas State Agencies' Response to Transfer Venue, filed August 23, 2023 (Dkt. 6); and Defendants' Reply in Support of Its Motion to Transfer Venue, filed august 30, 2023 (Dkt. 7). By Text Orders entered August 21 2023, the District Court referred the Motions to this Magistrate Judge for disposition, pursuant to 28 U.S.C § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

I. Background

These motions arise out of a “a sweeping multidistrict litigation” (“Opioid MDL”) in which about 1,300 public entities, including cities, counties, and Native American tribes, seek recovery from manufacturers, distributors, and retailers of prescription opioid drugs. In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 923 (6th Cir. 2019). On December 5, 2017, the United States Judicial Panel on Multidistrict Litigation assigned the Opioid MDL to United States District Judge Dan A. Polster in the Northern District of Ohio. In re Nat'l Prescription Opiate Litig., 290 F.Supp.3d 1375, 1379 (U.S. Jud. Pan. Mult. Lit. 2017) (Case No. 17-MD-2804-DAP (N.D. Ohio)).

Relevant here, one of the cases consolidated in the Opioid MDL was brought by Tarrant County, Texas against various manufacturers, distributors, and pharmacy retailers of prescription opioid drugs, including Kroger Co., Albertsons, Inc., CVS Pharmacy, Inc., and Walgreen Co. Cnty. of Tarrant, Tex. v. Purdue Pharma L.P., et al., No. 1:18-OP-45274-DAP (N.D. Ohio) (“Tarrant County Case”).^[1] In April 2021, Judge Polster set the Tarrant County Case as a bellwether case for trial and permitted the parties to conduct discovery. Dkt. 1 at 16. Judge Polster appointed David Cohen as a special master to oversee the Tarrant County Case. Dkt. 2 at 6.

Defendants Kroger and Albertsons issued a series of deposition subpoenas and subpoenas duces tecum on several non-party Texas Agencies^[2] seeking information related to opioid trafficking in Texas. The Texas Agencies move to quash the subpoenas under Rule 45(d)(3)(A), arguing that they are overbroad, unduly burdensome, seek privileged or protected information, and are barred by sovereign immunity. Defendants Kroger and Albertsons move to transfer the Motion to Quash to the United States District for the Northern District of Ohio, where the subpoenas were issued and where the Opioid MDL is pending, under Rule 45(f).^[3] Tarrant County consents to the transfer, but the Texas Agencies do not. Dkt. 2 at 1 n.1.

II. Legal Standard

Under Rule 45(f), a court may transfer subpoena-related motions to the court of issuance only “if the person subject to the subpoena consents or if the court finds exceptional circumstances.” While Rule 45 does not define “exceptional circumstances,” the Advisory Committee Note states:

In the absence of consent, the court may transfer in exceptional circumstances, and the proponent of transfer bears the burden of showing that such circumstances are present. The prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions. In some circumstances, however, transfer may be warranted in order 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. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.

FED. R. CIV. P. 45 ADVISORY COMMITTEE'S NOTES TO 2013 AMENDMENT, SUBDIVISION (F).

In determining whether exceptional circumstances exist, “courts consider several factors, including the complexity, procedural posture, duration of pendency, and the nature of the issues pending before, or already resolved by, the issuing court in the underlying litigation.” CSS, Inc. v. Herrington, 354 F.Supp.3d 702, 707 (N.D. Tex. 2017); see also Jud. Watch, Inc. v. Valle Del Sol, Inc., 307 F.R.D. 30, 34 (D.D.C. 2014) (same). “In contrast to the Committee's ‘exceptional circumstances' standard, many courts also have transferred motions to compel based on judicial economy.” 9A ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE (WRIGHT & MILLER) § 2463.1 (3d ed. April 2023 Update).

III. Analysis

The Texas Agencies argue that Defendants Kroger and Albertsons do not show exceptional circumstances, and that the Motion to Transfer should be decided by this Court because “the issue of sovereign immunity of the Nonparty Texas Agencies should properly be addressed by a district court in Texas and, ultimately, by the Fifth Circuit.” Dkt. 6 at 2 (cleaned up). The Court is not persuaded by either argument.

First, the Court finds that exceptional circumstances exist to transfer the Motion to Quash to the Northern District of Ohio. The Texas Agencies do not dispute that the Opioid MDL is “especially complex,” and that the Northern District of Ohio overseeing the Opioid MDL has the “greatest familiarity” with the issues in that case. Dkt. 6 at 5. This Court, like others, finds that the complex MDL status of the underlying litigation is an exceptional circumstance weighing strongly in favor of transfer “because the same concerns about orderliness and disruption that led to the consolidation of actions as an MDL in the first place arise with respect to pretrial disputes regarding subpoenas issued in the context of that complex litigation.” In re Disposable Contact Lens Antitrust Litig., 306 F.Supp.3d 372, 378 (D.D.C. 2017); see also Visionworks of Am., Inc. v. Johnson & Johnson Vision Care, Inc., No. 1:17-MC-0055-LY-AWA, 2017 WL 1611915, at *2 (W.D. Tex. Apr. 27, 2017) (finding that transfer was in the interest of justice and consistency when the underlying litigation was “a complicated multidistrict litigation involving multiple defendants” and it was “likely that other non-parties will move to quash similar depositions in the future”).

While familiarity with the underlying action will not always justify a transfer, it is a compelling factor in “highly complex” cases where the issuing court is aware of “the full scope of issues involved as well as any implications the resolution of the motion will have on the underlying litigation.” Further, where the underlying action is a multidistrict litigation, transfer may be warranted to avoid piecemeal rulings by different judges, reaching different conclusions, in resolving identical disputes.

In re Niaspan Antitrust Litig., No. 15-1208, 2015 WL 3407543, at *1 (D. Md. May 26, 2015) (citations omitted).

The Court finds that the Northern District of Ohio is in the best position to make rulings on the scope of discovery and evaluate the relevance of the requested documents. Any ruling by this Court on the Motion to Quash has the potential to disrupt the court's management of the Opioid MDL, both procedurally and substantively. The issues presented in the Texas Agencies' Motion to Quash likely have been or will be presented to the Northern District of Ohio in other discovery motions, and a ruling by this Court would create the risk of creating inconsistency in the MDL. “Uniformity of discovery rulings in a case of this complexity is critical to achieving fairness to the parties and non-parties.” Visionworks, 2017 WL 1611915, at * 2. A transfer will “‘avoid disrupting the issuing court's management of the underlying litigation,' and enable resolution of fundamental issues underlying this matter.” In re Nonparty Subpoenas Duces Tecum, 327 F.R.D. 23, 26 (D.D.C. 2018) (quoting FED. R. CIV. P. 45(F) ADVISORY COMMITTEE'S NOTES).

The Court also disagrees with the Texas Agencies that “a district court in Texas” must rule on their sovereign immunity defense. The Texas Agencies contend that this discovery dispute “is centered around the Fifth Circuit's holding” in Russell v. Jones, 49 F.4th 507 (5th Cir. 2022). Dkt. 6 at 12. In Russell the Fifth Circuit held that state sovereign...