Lipman v. Antoon, Case No. 17–mc–1892 (EGS)

284 F.Supp.3d 8

Andrew D. LIPMAN, Petitioner,

v.Patrick ANTOON, Jr., Respondent.

Case No. 17–mc–1892 (EGS)

United States District Court, District of Columbia.

Signed January 3, 2018

Robert Abraham Braun, Cohen, Milstein, Sellers & Toll, Washington, DC, for Respondent.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

I. Introduction

Pending before the Court are (1) petitioner Andrew Lipman's motion to quash a subpoena served on him by Patrick Antoon, Jr., plaintiff in an underlying action before the United States District Court for the Western District of Arkansas ("Western District of Arkansas"), Mot. Quash, ECF No. 1; and (2) Mr. Antoon's motion to transfer Mr. Lipman's motion to quash to the Western District of Arkansas, Mot. Transfer, ECF No. 2. Upon consideration of the motion to quash and the motion to transfer, the responses and replies, the applicable law, and the entire record, Mr. Antoon's motion to transfer shall be GRANTED , and this miscellaneous proceeding, including the pending motion to quash, shall be TRANSFERRED to the Western District of Arkansas.

II. Background

Mr. Antoon has been imprisoned in an Arkansas Department of Corrections facility since March 2014. Opp'n Transfer 3, ECF No. 5. He sued defendant Securus Technologies, Inc. ("Securus"), a company that provides Inmate Calling Services ("ICS") to "more than 3,400 public safety, law enforcement, and corrections agencies and over 1.2 million inmates," on behalf of similarly situated persons who were "charged exorbitant rates and fees" to use its ICS intrastate services. Id.

Mr. Antoon filed his complaint on January 9, 2017 in the Western District of Arkansas. The case was assigned to District Court Judge Timothy Brooks. See Antoon v. Securus Techs., Inc. , Civ. No. 5:17–cv–5008 (W.D. Ark.). Following the resolution of Securus' motion to dismiss, Mr. Antoon's surviving claims against Securus are for unjust enrichment and for a violation of the Arkansas Deceptive Trade Practices Act. Moffa Decl. ¶ 5, ECF No. 2–1. Discovery has been on-going since April 2017 and is scheduled to end in March 2018. See Case Management Order 2, ECF No. 53 (5:17–cv–5008). Currently pending before Judge Brooks are Securus' motion for summary judgment, ECF No. 52 (5:17–cv–5008), and its motion for a protective order regarding Mr. Lipman's nonparty subpoena, ECF No. 65 (5:17–cv–5008).

Mr. Antoon's case is the fourth of four related ICS cases before Judge Brooks.¹ Mojica v. Securus Techs. Inc. is one of these related cases against Securus for its interstate ICS practices. Civ. No. 14–5258 (W.D. Ark.) In both the interstate and intrastate cases against Securus, the parties are represented by the same counsel. See Mot. To Quash 13, ECF No. 1. The interstate ICS cases are scheduled for trial pending the en banc review of Global Tel*Link v. FCC , 859 F.3d 39 (D.C. Cir. 2017), which concerns the legality of the Federal Communications Commission's ("FCC") interstate ICS regulations. Id.

Mr. Lipman, the nonparty subpoena recipient, is a partner at Morgan, Lewis & Bockius, the law firm representing Securus in the underlying matter. Mot. Quash 3, ECF No. 1. He is also the Chairman of the firm's Advisory Board, a "leadership" position. Id. Mr. Lipman specializes in telecommunications work and was involved in providing comments to the FCC regarding its ICS rulemaking proceedings. Opp'n Quash 5, ECF No. 3. Mr. Lipman submitted the comments on behalf of himself and "clients with an interest in the provision of Inmate Calling Services." Id. (citing FCC Docket WC 12–375).

On July 20, 2017, Mr. Antoon served Mr. Lipman with a subpoena. Opp'n Transfer 4, ECF No. 5. The subpoena requests documents and testimony in connection with the statements Mr. Lipman made to the FCC in WC Docket No. 12–375 : Rates for Interstate Inmate Calling Services . The subpoena seeks six categories of documents:

[1] [R]etainer agreement(s) and any documents confirming [Mr. Lipman's] retention by any ICS provider(s) for services rendered ... in connection with WC Docket No. 12–375: Rates for Interstate Inmate Calling Services ;

[2] Documents sufficient to identify the certain clients with an interest in the provision of inmate calling services (ICS) on whose behalf [Mr. Lipman] submitted [his February 20, 2015] letter to ... [the FCC];

[3] Documents sufficient to identify the certain clients with an interest in the provision of inmate calling services (ICS) on whose behalf [Mr. Lipman] submitted [his October 15, 2015] letter to ... [the FCC];

[4] Invoices, billing records, or other documents reflecting any invoices [Mr. Lipman] sent to Defendant for services rendered in connection with the following filings submitted by [Mr. Lipman] to the [FCC] in WC Docket No. 12–375:

Rates for Interstate Inmate Calling Services : [February 20, 2015 Letter; September 28, 2015 Letter; October 15, 2015 Letter];

[5] Documents supporting the positions advanced in [Mr. Lipman's February 20, 2015 letter to the FCC] ....;

[6] Documents supporting the positions advanced in [Mr. Lipman's April 8, 2015 letter to the FCC] ....

Subpoena 12–13, ECF No. 1–2.

Mr. Lipman subsequently moved this Court to quash the subpoena, arguing that the subpoena seeks irrelevant information and that it seeks information protected by the attorney-client privilege and work product doctrine. Mot. Quash, ECF No. 1. Thereafter, Mr. Antoon moved to transfer Mr. Lipman's motion to the Western District of Arkansas. See Mot. Transfer, ECF No. 2.

III. Analysis

Federal Rule of Civil Procedure 45(f) states in relevant part:

When the court where compliance [with a subpoena] is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.

Fed. R. Civ. P. 45(f). According to the Advisory Committee Note accompanying the 2013 amendments to Rule 45, the "prime concern" in assessing whether "exceptional circumstances" exist to permit transfer, "should be avoiding burdens on local nonparties subject to subpoenas ...." Fed. R. Civ. P. 45(f) advisory committee's note. While "it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions," "transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation ... if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion."² Id. To carry out this balancing test, courts in this Circuit have considered "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." Judicial Watch, Inc. v. Valle Del Sol, Inc. , 307 F.R.D. 30, 34 (D.D.C. 2014). Courts have also considered the goals of judicial economy and the avoidance of inconsistent results. Wultz v. Bank of China, Ltd. , 304 F.R.D. 38, 46 (D.D.C. 2014). "[T]he proponent of transfer bears the burden of showing that [exceptional] circumstances exist." Fed. R. Civ. P. 45(f) advisory committee's note.

Mr. Antoon argues that this Court should transfer Mr. Lipman's motion to quash because his arguments are based on the parties' "substantive allegations and defenses," with which the issuing court is more familiar. Mot. Transfer 2, ECF No. 2. Mr. Antoon further argues that transfer is warranted to avoid issuing inconsistent rulings and disrupting the issuing court's management of the underlying action. Id. Finally, Mr. Antoon argues that any burden on Mr. Lipman is negligible given that he is represented by the same law firm that represents Securus in the underlying action, and because Judge Brooks permits counsel to argue discovery motions by telephone. Id. Mr. Lipman counters that the motion to quash involves a "threshold application" of the attorney client-privilege and the work product doctrine, which are "legal question[s] separate from the underlying litigation's merits." Opp'n Transfer 1–2, ECF No. 5. As a nonparty subpoena respondent located in the District of Columbia without a connection to the Western District of Arkansas, Mr. Lipman argues that he will be burdened if he has to argue his motion before the issuing court. Id. at 16–17.

The Court finds that the exceptional circumstances present weigh in favor of transferring the motion to quash because (1) the burden on Mr. Lipman is negligible and (2) consideration of the Judicial Watch factors militates strongly in favor of transfer. See 307 F.R.D. at 34.

A. Transferring the motion to quash will not unduly burden Mr. Lipman

In determining whether exceptional circumstances exist to permit transfer, the Court's "prime concern should be avoiding burdens on local nonparties subject to subpoenas." Fed. R. Civ. P. 45(f) advisory committee's note. Mr. Antoon argues that the burden on Mr. Lipman is "negligible" because he is represented by the same law firm that represents Securus and because the issuing court will preside over Securus' motion for a protective order concerning this very subpoena. Mot. Transfer 10, ECF No. 2. Mr. Antoon also notes that "Judge Brooks' case management procedures permit counsel to appear for discovery ... hearings telephonically," a method of participation specifically contemplated by the Advisory Committee Notes to minimize the burden that transfer could impose on nonparties. Id. Finally, Mr. Antoon states that any deposition of Mr. Lipman would occur in the District of Columbia, where it was originally noticed. Id. at 10–11. Mr. Lipman argues that his burden is not "negligible" because he is represented by different lawyers than those that represent Securus. Opp'n Transfer 16, ECF No. 5. He also asserts that because he and his attorney are based in the District of Columbia, he "should not be forced to litigate in the Western District of Arkansas—a district to which he has no connection." Id. at 17.

Mr....