EMW WOMEN'S SURGICAL CENTER, P.S.C., et al. PLAINTIFFS v. ADAM MEIER, et al. DEFENDANTS CIVIL ACTION NO. 3:18CV-00224-JHM-RSE United States District Court, W.D. Kentucky Filed November 09, 2018 Edwards, Regina S., United States Magistrate Judge ORDER *1 Presently before the Court is Plaintiffs' Motion to Compel Defendants to produce documents responsive to Plaintiffs' subpoenas to seven of Defendants' expert witnesses. (DN 89). The Court held an expedited telephonic hearing to resolve this issue on November 6, 2018, at 2:00 PM. Following the hearing, the Court gave Defendants a brief response period. (DN 92; DN 93). Because the trial date in this case is rapidly approaching, the Court will at once address the Plaintiffs' Motion to Compel. This dispute arose after Plaintiffs served subpoenas on seven of Defendants' expert witnesses on September 10, 2018. These seven expert witnesses previously provided expert testimony in a November 2017 trial involving the now-unconstitutional Texas S.B. 8, which Plaintiffs state is “substantively identical to the Kentucky statute” challenged in this case.[1] (DN 89, at p. 5). Plaintiffs' subpoenas sought the seven experts' communications “with any other person” relating to Kentucky H.B. 454, Texas S.B. 8, and this litigation or litigation in the Texas case, among other things. (See DN 89-2). Defendants responded to one expert's (Dr. Curlin's) subpoena on September 25, 2018, and the other six experts' subpoenas on October 1, 2018, by producing documents and privilege logs. These privilege logs include detailed entries identifying protected communications between defense counsel in this case and the expert witnesses. At the end of each privilege log, however, defense counsel added that “[a]ll communications sent or received for the purpose of providing services under contract to Texas regarding SB 8 litigation” were privileged. (See DN 89-6; 89-7). Additionally, Defendants produced a text message thread between two of the experts, Dr. Curlin and Dr. Snead, which contained privilege redactions. (See DN 89-4). Plaintiffs attempted to meet and confer with Defendants to determine “the grounds for [their] privilege assertion.” (See DN 89-8). During the meet and confer call, Defendants explained that the attorneys from the Texas litigation (Texas' attorneys) instructed defense counsel withhold any communications between the attorneys in the Texas S.B. 8-related litigation and the seven expert witnesses, and that they were asserting the privilege on Texas's behalf. (See DN 89-9). Apparently neither the Texas attorneys nor the defense attorneys in this action reviewed the withheld or redacted documents. (Id. at pp. 3, 4). Plaintiffs suggested to Defendants and the Texas attorneys that they produce a categorical privilege log including all communications involving attorneys, and a document-by-document log for communications in which no attorneys were involved. (Id.). The Texas attorneys responded that it was a “waste of their time,” as non-parties to the case, to search for, review, and log documents that are “clearly privileged.” (Id. at p. 3). But the Texas attorneys also indicated that if the request is limited “only to communications between experts from the Texas litigation, about the Texas litigation, and which do not include attorneys, from after the date of the Texas trial to the present day, we can respond: there are no further documents than what has already been produced.” (Id.). Plaintiffs sent defense counsel an e-mail on October 22, 2018, seeking they produce the requested document-by-document logs for withheld communications in which no attorneys were involved by October 24, 2018. (Id. at p. 2). Defendants did not respond. *2 Plaintiffs filed the instant Motion to Compel on November 5, 2018, eight days before the bench trial in this case is set to begin. Their Motion seeks the Court to compel the seven experts to produce all withheld communications because their privilege claims have not been substantiated. (DN 89, at p. 6). Plaintiffs believe that Defendants have waived their “privilege” claim by failing to review the withheld documents or provide a detailed privilege log as to the communications purportedly privileged based on the contract with Texas in the prior litigation. (Id. at pp. 6-7). Even if the Court finds Defendants did not waive their privilege claim, Plaintiffs assert that Defendants must produce the requested communications because Rule 26(b)(4) does not protect communications between an expert witness and a non-attorney. (Id.). During the expedited hearing, and in a subsequent response, Defendants assert three reasons for denying Plaintiffs' Motion. (DN 93). First, Defendants claim Plaintiffs' Motion was untimely filed after the deadline for pretrial motions on Friday, November 2, 2018. (Id. at p. 11). Second, Defendants state the privilege is not theirs to assert, it's Texas' privilege, and if Defendants review any withheld communications, the privilege will be waived and lost. (Id. at p. 10). Third, Defendants allege that under Federal Rule 45(d)(2)(B) Plaintiffs have filed their motion in the wrong forum by not filing it where each of the seven experts are located. (DN 93, at p. 7). As an initial matter, the Court will not deny Plaintiffs' Motion because it was untimely. While the Plaintiffs' Motion was indeed filed one business day after the deadline for pretrial motions ran, the Court does not find this delay to be unduly prejudicial to Defendants considering the numerous other disputes the parties have faced with trial approaching. Nor does the Court find merit in Defendants' second argument, that Defendants are asserting a privilege on behalf of Texas over the requested communications. Federal Rule of Civil Procedure 26(b)(4)(C) provides protection to “communications between the party's attorney and any [expert] witness required to provide a report.” Fed. R. Civ. P. 26(b)(4)(C). This Rule does not provide the same protection to communications among expert witnesses or between expert witnesses and non-attorney third parties. See, e.g., Southwest Insulation, Inc. v. General Insulation Co., No. 4:15-cv-00601-O, 2016 WL 9245433, at *2 (N. D. Tex. Aug. 31, 2016); Benson v. Rosenthal, No. 15-782, 2016 WL 1046126 (E.D. La. Mar. 16, 2016) (“communications between a testifying expert and a non-attorney are not protected from discovery by Rule 26(b)(4), and must be produced, or at least logged.”) (emphasis in original); Whole Women's Health v. Lakey, 301 F.R.D. 266, 270-71 (W.D. Tex. 2014); Burkhead & Scott, Inc. v. City of Hopkinsville, No. 5:12-CV-00198-TBR, 2014 WL 6751205, at *1 (W.D. Ky. Dec. 1, 2014) (“Emails without an attorney recipient or sender are not privileged, nor are emails to or from non-parties.”). In reviewing their Motion, it is clear that the Plaintiffs are now only seeking those communications among the experts or between the experts and non-attorneys. Accordingly, the requested communications are not protected from discovery by Rule 26(b)(4), and Defendants cannot claim a blanket privilege on behalf of the Texas' attorneys in withholding such communications.[2] *3 Yet even though the Court finds the communications sought by Plaintiffs are not privileged under Rule 26(b)(4), Plaintiffs' Motion still must be denied based on Defendants' last argument – that Plaintiffs filed their Motion in the improper forum. Federal Rule of Civil Procedure 45 provides a mechanism for compelling non-parties to produce testimony. Fed. R. Civ. P. 45(d)(2). However, the Rule specifies that “[a]t any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.” Id. Rule 45(c) makes clear that the “district where compliance is required” is any district within 100 miles of where that person resides, is employed, or regularly does business. Id. (c)(2)(A). This means that any motion to compel production of documents requested by subpoena must be made in the court where compliance is required.[3] See, e.g., Europlay Capital Advisors, LLC v. Does, 323 F.R.D. 628, 629 (C.D. Cal. 2018); In re Packaged Seafood Products Antitrust Litigation, No. CV 17-2856-CAS (ASx), 2018 WL 454440, at *1 (S.D. Cal., Jan. 17, 2018); see also CSS, Inc. v. Herrington, No. 3:17-mc-71-N-BN, 2017 WL 4750707, at *6 (N.D. Tex., Oct. 20, 2017) (“the place named in the subpoena as required by Rule 45(a)(1)(A)(iii) is the place ‘where compliance is required.’ ”). Plaintiffs' subpoenas order the seven experts, who reside in North Carolina, Illinois, Indiana, Texas, and Arizona, to produce documents to a location in their given state. For instance, Dr. Curlin's subpoena orders her to produce documents to “Diamond Eye Legal, LLC” in North Carolina, the state where she resides. (See DN 89-2). None of the seven experts resides in the Western District of Kentucky. Because Plaintiffs did not bring their Motion to Compel in the “district of compliance” under Rule 45, this Court does not have authority to rule on it. See Trover Group, Inc. v. Dedicated Micros USA, 2015 WL 11117083, at *1-2 (E.D. Tex. Mar. 27, 2015) (collecting cases); Cardinal Aluminum Co. v. Continental Cas. Co., No. 3:14-CV-857-TBR-LLK, 2015 WL 4483991, at *1-2 (W.D. Ky. July 22, 2015). And, as Defendants state in their response, Rule 45 does not explicitly distinguish between a party's expert and a non-party in enforcing the “place of compliance” requirement. See Cadle v. GEICO Gen. Ins. Co., No. 6:13-cv-1591-Orl-31GJK, 2014 WL 12639859, at *3-4) (M.D. Fl. Aug. 29, 2014) (finding that “a subpoena is an appropriate means of obtaining relevant and discoverable information and materials from an expert witness[.]”); see also D'Souza v. Marmaxx Operating Corp., No. EP-15-CV-00256-DCG, 2017 WL 1322243, at *5 (W.D. Tex. Apr. 17, 2017) (remarking that the Advisory Committee Notes to the 1993 and 2010 amendments to the Rules demonstrate that “subpoenas duces tecum are permissible to obtain further discovery from a testifying expert”). Based on the clear language of Rule 45, the Court finds it cannot exercise jurisdiction over Plaintiffs' Motion to Compel. Order IT IS THEREFORE ORDERED that Plaintiffs' Motion to Compel (DN 89) is DENIED. Copies: Counsel of Record Footnotes [1] The seven witnesses are: Dr. Anthony Levatino, Dr. Mikeal Love, Dr. Don Warren, Dr. Farr Curlin, Dr. Colleen Malloy, Dr. Dave Berry, and Dr. O. Carter Snead. (DN 89, at p. 5). [2] While courts have found in certain situations that “[t]he complete failure of a responding party to provide a privilege log may ... result in a waiver of the claimed privilege,” Brown v. Tax Ease Lien Servicing LLC, No. 3:15-CV-208-CRS, 2017 WL 6940735, at *4 (W.D Ky. Aug. 21, 2017) (citing Ritacca v. Abbott Lab., 203 F.R.D. 332, 334-35 (N.D. Ill. 2001) (add'l citation omitted)), there is no per se rule compelling the waiver of attorney-client privilege or work product doctrine if the required privilege log is not initially produced, Burlington v. Northern & Santa Fe R.R. Co. v. U.S. Dist. Ct. for Montana, 408 F.3d 1142, 1149 (9th Cir. 2005). Because the Court finds that the requested documents, without more information, do not fall into the protections of Rule 26(b)(4), Plaintiffs' claim that Defendants waived any claim of privilege by failing to produce comprehensive privilege logs need not be further addressed. [3] Rule 45 permits parties to agree that production, particularly of electronically stored information, be transmitted by electronic means. “Such arrangements facilitate discovery, and nothing in these amendments limits the abilities of parties to make such arrangements.” D'Souza v. Marmaxx Operating Corp., No. EP-15-CV-00256-DCG, 2017 WL 1322243, at *5 (W.D. Tex. Apr. 17, 2017) (citing Fed. R. Civ. P. 45 advisory committee's notes to 2013 amendment). Although an agreement between the parties of this nature could have prevented this last-minute dispute, there is no evidence that the parties in this case reached any arrangement as to how requested documents would be produced.