In re 3M Combat Arms Earplug Prods. Liab. Litig.
In re 3M Combat Arms Earplug Prods. Liab. Litig.
2020 WL 8673437 (N.D. Fla. 2020)
November 18, 2020

Jones, Gary R.,  United States Magistrate Judge

Initial Disclosures
Third Party Subpoena
Proportionality
Failure to Produce
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Summary
The court suggested that the defendants may re-file their motion to compel in the district where compliance with the subpoenas duces tecum is required, and then file a motion to transfer under Rule 45(f).
Additional Decisions
IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION,
This Document Relates to: Dustin McCombs
Case No. 3:19-md-2885, Case No. 7:20-cv-94
United States District Court, N.D. Florida
Filed November 18, 2020
Jones, Gary R., United States Magistrate Judge

ORDER

*1 Pending before the Court is Defendants' Motion to Compel Discovery from Kasidy Putney and Zachary Thompson. ECF No. 18. Putney and Thompson (“the Non-Parties”), through Plaintiff Dustin McCombs' counsel, filed a response in opposition to Defendants' motion. ECF No. 19. Additionally, the Court granted Defendants and the Non-Parties leave to file a reply memorandum and a sur-reply memorandum, respectively. ECF No. 24 (Defendants' reply memorandum); ECF No. 27 (the Non-Parties' sur-reply memorandum). The motion, therefore, is ripe for the Court's consideration.
 
The instant motion stems from Defendants' service of subpoenas duces tecum for only the production of documents on Putney and Thompson under Federal Rule of Civil Procedure 45 as part of discovery in Bellwether Plaintiff McCombs' case against Defendants in this MDL.[1] The Non-Parties raised myriad objections to these “documents-only” subpoenas, and Defendants moved to compel production in this Court. Defendants' subpoenas, however, demanded production from Putney and Thompson within the geographical boundaries of the United States District Court for the Southern District of West Virginia. The Non-Parties' threshold argument in response to Defendants' motion is that the Court lacks jurisdiction over this discovery dispute because the Northern District of Florida is not “the district where compliance [with the subpoenas] is required[.]” Fed. R. Civ. P. 45(d)(2)(B)(i).
 
Defendants contend the Court enjoys jurisdiction over this discovery dispute under the statute governing multidistrict litigation, 28 U.S.C. § 1407. The MDL statute provides, in pertinent part, that the “judges to whom such actions are assigned ... may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in ... coordinated or consolidated pretrial proceedings.” § 1407(b).
 
Upon consideration of the arguments presented by Defendants and the Non-Parties, the Court concludes it does not have jurisdiction over the discovery dispute. Accordingly, for the reasons discussed below, Defendants' motion to compel is due to be DENIED.
 
I. BACKGROUND
This multidistrict litigation is a products liability action concerned with whether Defendants were negligent in their design, testing, and labeling of the nonlinear dual-ended Combat Arms Earplug Version 2 (the “CAEv2”). Plaintiffs are servicemembers, veterans, and civilians, asserting state law claims for negligence and strict products liability based on design defect and failure-to-warn theories, as well as warranty, misrepresentation, fraud, gross negligence, negligence per se, and consumer-protection claims. They are seeking damages for hearing loss, tinnitus, and related injuries caused by their use of the CAEv2.
 
*2 Plaintiff McCombs is a Trial Group A Bellwether Plaintiff. The parties engaged in case-specific discovery related to Plaintiff McCombs' claims and Defendants' defenses. Among dozens of other witnesses, Plaintiff McCombs identified Putney, his partner, in his initial disclosures as an individual “likely to have discoverable information—along with subjects of that information—that the disclosing party may use to support its claims or defenses[.]” ECF No. 18-4 at 2–3. Plaintiff McCombs also identified Thompson as an individual “who may possess knowledge and information pertaining to [his] tinnitus, and knowledge of Plaintiff's weapon exposure[,] including training and hearing protection.” Id. at 7–8.
 
Defendants served subpoenas duces tecum on Putney and Thompson for only the production of documents with return dates of September 24, 2020, and October 9, 2020, respectively, at a court reporting office in Charleston, West Virginia. ECF No. 18-1 (subpoena to Putney); ECF No. 18-2 (subpoena to Thompson). Unrelated to those subpoenas, Defendants deposed Putney on September 30, 2020, ECF No. 18-5, and Thompson on October 7, 2020, ECF No. 19-3. See also ECF No. 18 at 4 (discussing Putney's deposition); ECF No. 19 at 13 (discussing Thompson's deposition).
 
The Non-Parties did not produce documents, and Plaintiff McCombs' counsel served Defendants with objections to their subpoenas on the grounds that the subpoenas did not afford the Non-Parties a reasonable time for compliance, are duplicative and cumulative, are unduly burdensome, seek privileged communications, and, in some respects, are moot. ECF No. 18-6. Defendants, consequently, filed the instant motion to compel on October 27, 2020. ECF No. 18. Defendants contest each of the Non-Parties' objections “as obstructive, unconvincing, and violat[ive of] the spirit of Rule 45.” Id. at 4; see also id. at 4–7.
 
The Non-Parties ask the Court to deny Defendants' motion for failure to abide by Rule 45 and on the merits. ECF No. 19. Namely, as a threshold argument, the Non-Parties assert that the Court lacks jurisdiction over Defendants' motion because Rule 45(d)(2)(B)(i) requires that a motion to compel compliance with a discovery subpoena be filed in the district where compliance with the subpoena is required. Id. at 4–6. The Non-Parties argue further that the motion is moot as to Mr. Thompson and their objections should stand. Id. at 6–18.
 
The Court directed Defendants to file a reply memorandum addressing this jurisdictional argument, which they did. ECF No. 24. Defendants say that the Non-Parties' reliance on Rule 45(d)(2)(B)(i) is inapt because the statute governing multidistrict litigation, 28 U.S.C. § 1407, “expressly consolidates pretrial proceedings in the MDL court.” ECF No. 24 at 2. Defendants cite five cases in support of their interpretation of § 1407, none of which are binding. Id. at 1–3.
 
Lastly, the Court granted the Non-Parties leave to file a sur-reply memorandum, which they did. ECF No. 27. The Non-Parties assert that Defendants' cases are inapposite because they precede the amendment to Rule 45 in 2013, which provided for the transfer of subpoena-related motions from the district where compliance is required. Id. at 2. Moreover, the Non-Parties challenge Defendants' reading of § 1407(b) as including the documents-only subpoenas in issue here. Id. at 2–3.
 
II. DISCUSSION
The Court begins—and (in turn) ends—with the Non-Parties' discrete jurisdictional argument. For starters, Rule 45 is clear: the serving party must move to compel compliance with a discovery subpoena in “the district where compliance is required[.]” Fed. R. Civ. P. 45(d)(2)(B)(i). This Court (the Northern District of Florida) is not the district of compliance for Defendants' subpoenas to Putney and Thompson. ECF Nos. 18-1, 18-2. If this were any ordinary civil case in federal court, Defendants' motion to compel would be denied for lack of jurisdiction without further discussion. See Collins v. Koch Foods, Inc., No. MC 119-008, 2019 WL 2520308, at *2 (S.D. Ga. June 18, 2019) (“To summarize, the subpoena at issue requires compliance in the Northern District of Alabama, and therefore, this Court lacks jurisdiction to hear the motion to compel.”); Bernath v. Seavey, No. 2:15-cv-358-FtM-99CM, 2017 WL 11025770, at **2–3 (M.D. Fla. May 9, 2017) (denying motions to quash non-party discovery subpoenas for lack of jurisdiction).
 
*3 Defendants, however, argue that this Court has jurisdiction over their motion to compel based on an expansive reading of the multidistrict litigation statute, 28 U.S.C. § 1407. Defendants suggest that the express grant of authority to this Court in § 1407(b)—as the “judges to whom [the MDL] actions are assigned”—to “exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions” includes necessarily the power to compel compliance with discovery subpoenas demanding only the production of documents. ECF No. 24. In their reply memorandum, Defendants show they are not alone in this interpretation of § 1407(b). See, e.g., In re Accutane Prods. Liab. Litig., No. 8:04-MD-2523-T-30TBM, 2006 WL 1000311, at *2 n.3 (M.D. Fla. Apr. 14, 2006); United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 273 (D.D.C. 2002), aff'd 444 F.3d 462 (6th Cir. 2006).[2] Yet, there is contrary authority. See, e.g., In re Monat Hair Care Prods Mktg, Sales Practices, and Prods. Liab. Litig., No. 18-MD-2841-GAYLES, 2020 WL 1950463, at *2 (S.D. Fla. Apr. 23, 2020); VISX, Inc. v. Nidek Co., 208 F.R.D. 615, 616 (N.D. Cal. 2002). Notably, the parties do not cite (and the Court has not found) any binding cases on this issue.
 
Accordingly, the Court must determine the scope of § 1407(b). It is axiomatic that the “mandatory starting point” for statutory interpretation is the statute's plain language. Meridor v. U.S. Att'y Gen., 891 F.3d 1302, 1307 (11th Cir. 2018). And “where the statutory language provides a clear answer, it ends there as well.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999); see also Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1749 (2020) (“This Court has explained many times over many years that, when the meaning of the statute's terms is plain, our job is at an end.”). This is because “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.” Bostock, 140 S. Ct. at 1749; see also Dodd v. United States, 545 U.S. 353, 359–360 (2005).
 
Enacted in 1968, § 1407 is “of more recent vintage.” Gelboim v. Bank of Am. Corp., 574 U.S. 405, 410 (2015). The term “pretrial depositions” is not ambiguous now nor can the Court conclude that in 1968 it was used to refer to the production of documents by subpoena without a corresponding deposition. See Bostock, 140 S. Ct. at 1750 (“[T]he law's ordinary meaning at the time of enactment usually governs[.]”). Indeed, Rule 45 did not authorize the use of a documents-only subpoena until 1991. See Fed. R. Civ. P. 45 advisory committee's note (“Paragraph (a)(1) authorizes the issuance of a subpoena to compel a non-party to produce evidence independent of any deposition. This revision spares the necessity of a deposition of the custodian of evidentiary material required to be produced.”); Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 408 (3d Cir. 2004) (prior to the 1991 amendment, “[t]he accepted view was that nothing in Rule 45 gave the court the power to issue documents-only subpoenas to non-parties”). Additionally, Defendants do not cite legislative history or other definitional sources that establish or even suggest “Congress meant something other than what it said.” VISX, Inc., 208 F.R.D. at 616.
 
The plain language of § 1407(b) “makes no reference to subpoenas for the production documents.” In re Monat Hair Care, 2020 WL 1950463, at *2. “The extension of jurisdiction in MDL cases to the conduct of pretrial depositions ... is not tantamount to extending jurisdiction to enforce document subpoenas on third parties.” In re Packaged Seafood Prods. Antitrust Litig., No. 15-md-2670-JLS-MDD, 2018 WL 454440, at *2 (S.D. Cal. Jan. 17, 2018). This is a “distinction that makes a difference.” Id.
 
*4 Defendants cite five cases in support of their argument, but none of them are persuasive because they stray from the plain language of § 1407(b). ECF No. 24 at 1–3.[3] Take for example Pogue I, 238 F. Supp. 2d at 273, which Defendants characterize as “perhaps the leading case addressing this issue.” Id. at 1. The district court held it had jurisdiction to entertain a party's motion to compel compliance with Rule 45 subpoenas for the production of documents based on “the weight of authority and the effectuation of the purposes of [multidistrict] litigation,” 238 F. Supp. 2d at 273. The district court, however, cited cases concerning an MDL court's jurisdiction over subpoenas duces tecum incidental to a deposition, such as In re Factor VIII, 174 F.R.D. 412, 415 (N.D. Ill. 1997), and stated it was concerned that a contrary ruling would incentivize parties to hold “a pro forma deposition in order to come under the aegis of” the MDL statute. Pogue I, 238 F. Supp. 2d at 274. The former is distinguishable because this case concerns documents-only subpoenas, and the latter is irrelevant because it does not address the unambiguous text of the statute.
 
Similarly, in Pogue II, the Sixth Circuit stated that “the rationale underlying the MDL statute of ‘just and efficient’ resolution of pretrial proceedings requires the conclusion that [§] 1407(b)'s grant of authority applies to both deposition subpoenas and documents-only subpoenas.” 444 F.3d at 469 n.4. Some district courts have followed the Sixth Circuit's view, see, e.g., In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-cv-20000-RDP, 2017 WL 11539533, at *2 (N.D. Ala. Dec. 4, 2017); In re Intel Corp., 2007 WL 9612142, at *5, and it is not unreasonable to think that an MDL court could better effectuate the purpose of the MDL statute if it assumed complete control over discovery matters without regard to the limitations of the Federal Rules of Civil Procedure.
 
Nevertheless, “a statute's purpose may not override its plain language.” United States v. Rainey, 757 F.3d 234, 245 (5th Cir. 2014); see also Bd. of Governors of the Fed. Rsrv. Sys. v. Dimension Fin. Corp., 474 U.S. 361, 373–74 (1986) (“Application of ‘broad purposes’ of legislation at the expense of specific provisions ignores the complexity of the problems Congress is called upon to address and the dynamics of legislative action.”). As explained above, the Court concludes the plain language of § 1407(b) does not give an MDL court jurisdiction to compel compliance with documents-only subpoenas. What's more, an MDL court may not “distort or disregard” any law, including § 1407(b) or Rule 45, even in an attempt “to create efficiencies and avoid duplication of both effort and expenditure[.]” In re Nat'l Prescription Opiate Litig., 956 F.3d 838, 841 (6th Cir. 2020).
 
Lastly, these policy considerations do not support an expansive reading of § 1407(b) in view of the 2013 amendments to Rule 45. In re Monat Hair Care, 2020 WL 1950463, at *2; In re Packaged Seafood, 2018 WL 454440, at *2. Rule 45 was amended in 2013 to include subsection (f), which provides authority for the court where compliance is required to transfer subpoena-related motions to the court where the underlying action is pending. Fed. R. Civ. P. 45(f). As Defendants are aware (because they have previously moved to transfer subpoena-related motions to this Court), courts of compliance deciding whether to transfer a subpoena-related motion consider the presence of “exceptional circumstances.” Fed. R. Civ. P. 45 advisory committee's note. The consistency and efficiency of resolving subpoena-related motions in the MDL court is more appropriately considered under Rule 45(f) than as a basis to attempt to invoke the MDL court's jurisdiction in the first instance under § 1407(b).
 
*5 In sum, Rule 45 requires a serving party to move for compliance with a discovery subpoena in “the district where compliance is required[,]” Fed. R. Civ. P. 45(d)(2)(B)(i), and § 1407(b)'s limited exception to this rule concerns subpoenas in MDL cases for “pretrial depositions.” Because the Northern District of Florida is not the district where compliance is required for the subpoenas to Putney and Thompson and those subpoenas demanded the production of documents without corresponding depositions, this Court lacks jurisdiction over the instant motion to compel.
 
III. CONCLUSION
Accordingly, it is ORDERED that Defendants' Motion to Compel Discovery from Kasidy Putney and Zachary Thompson, ECF No. 18, is DENIED for lack of jurisdiction. Defendants may re-file their motion to compel in the district where compliance with the subpoenas duces tecum is required, the United States District Court for the Southern District of West Virginia. Defendants may then file a motion to transfer under Rule 45(f), requesting the United States District Court for the Southern District of West Virginia to transfer the motion to compel to this Court for resolution as part of the MDL proceedings. While this Court has authority under § 1407(b) to exercise the authority of judges in any district that authority extends only to pretrial depositions and not to subpoenas for documents only.
 
DONE AND ORDERED this 18th day of November 2020.
 
See Fed. R. Civ. P. 45(d)(2)(A) (“A person commanded to produce documents, electronically stored information, or tangible things ... need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.”)
As the Sixth Circuit explained in Pogue II, the appeal from the District Court for the District of Columbia was properly before it because “appeals typically go to the appellate court embracing the MDL district court.” 444 F.3d at 467.
See Pogue II, 444 F.3d at 468–69; In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., No. 09-3073 (JAP), 2009 WL 3681986, at *2 (D.N.J. Nov. 4, 2009); In re Intel Corp. Microprocessor Antitrust Litig., No. 05-1717-JJF, 2007 WL 9612142, at *3 (D. Del. May 18, 2007); In re Accutane Prods. Liab. Litig., No. 8:04-MD-2523-T-30TBM, 2006 WL 1000311, at *2 n.3 (M.D. Fla. Apr. 14, 2006); Pogue I, 238 F. Supp. 2d at 273.