United States Court of Appeals

Fifth Circuit

FILED

February 8, 2007

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 06-20835

m 06-20836

Summary Calendar

_______________

IN RE:

CLIENTS AND FORMER CLIENTS OF BARON & BUDD, P.C.

AND

OCCUPATIONAL MEDICAL RESOURCES, INC.,

Petitioners.

_________________________

Petitions for Writs of Mandamus to

the United States District Court

for the Southern District of Texas

m H-06-MC-306

______________________________

Before SMITH, WIENER, and OWEN, 

Circuit Judges.

PER CURIAM:

Petitioners are Occupational Medical Resources, Inc. (“OMR”), and individuals whose

records are in OMR’s possession. Petitioners

seek a writ of mandamus ordering the district

court to rule on motions to intervene and motionsto quash regarding a subpoena. We deny

the petition.

I.

The respondents are defendants in matters

pending in the Asbestos Multi-District Litiga-
2

tion Court No. 875 (“MDL 875”) in the United States District Court for the Eastern District of Pennsylvania. Pursuant to Federal

Rule ofCivilProcedure 45, respondentsissued

a subpoena through the United States District

Court for the Southern District of Texas for

the production of documents and material

from OMR. The individuals moved to intervene, and to quash the subpoena, in the Texas

court. OMR also moved to quash in that

court; its motion remains unresolved. The

Texas court entered the order that is now being challenged; it (1) denied the individuals’

motions and (2) directed that “[a]ll future

pleadings in this case be filed in MDL 875.”

Petitioners complain only about the second

part of the order.

II.

Petitioners rely largely on the text of rule

45(c)(3)(A), which states that “the court by

which a subpoena was issued shall quash or

modify the subpoena . . . .” To the same effect, rule 45(e) states that “[f]ailure by any

personwithout adequate excuse to obey a subpoena served upon that person may be deemed

a comtempt of the court from which the subpoena issued.” Petitioners claim that by the

text of these two provisions, only the Texas

court may enforce the subpoena and protect

parties from its terms.

Respondents answerthat MDL proceedings

are to be treated differently. They rely primarily on 28 U.S.C. § 1407(b), dealing with MDL

proceedings, which provides that “[t]he judge

to whom such [MDL] actions are assigned . . .

may exercise the powers of a district judge in

any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.” The question

of law that we must decide to evaluate the

mandamus petition is whether the authority

conferred on the MDL court by § 1407(b)

extends beyond depositions so as to embrace

the instant subpoenas.

III.

Based on the overwhelming weight of authority, we answer in the affirmative. A persuasive analysis is set forth in a leading treatise:

A motion to quash or modify a subpoena

is to be granted by “the court by which a

subpoena was issued.” If a subpoena is issued by a district court other than the one

in which the case is pending . . ., the proper

court in which to file a motion to quash or

modify the subpoena is the issuing court,

not the court in which the action is pending

. . . .

. . .

Certain federal statutes create an exception to the rule that only the issuing court

may quash, modify, or enforce a subpoena.

For example, the multidistrict litigation

(MDL) statute . . . authorizes a judge assigned an MDL action to “exercise the

powers of a district judge in any district for

the purpose of conducting pretrial depositions in such coordinated or consolidated

pretrial proceedings.” [citing § 1407(b)]

This statute therefore authorizes the transferee district court to exercise the authority

of a district judge in any district: The

transferee court may hear and decide motions to compel or motions to quash or

modify subpoenas directed to nonparties in

any district. Though the statutorylanguage

refers to “pretrial depositions,” the statute

wiselyhas beeninterpreted to embrace document production subpoenas as well.

9 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 45.50[4], at 45-75 through
3

45-77 (Matthew Bender 3d ed. 2006) (footnotes omitted). “In multidistrict litigation, the

court in charge of the consolidated proceedings has the power to rule on a motion to

quash subpoenas.” 9A CHARLESA.WRIGHT&

ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 2459, 2006 Supp., at 19 (West

1995). “The court in charge of consolidated

proceedings has power to rule on a motion to

quash subpoenas.” Id. at 19 n.14.2.

This conclusion is supported by the convincing analyses of myriad district courts.

E.g., In re Auto. Refinishing Paint Antitrust

Litig., 229 F.R.D. 482, 485 n.5 (E.D. Pa.

2005); United States ex rel. Pogue v. Diabetes

Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d

270, 274-75 (D.D.C. 2002); In re Subpoenas

Served on Wilmer, Cutler & Pickering &

Goodwin Proctor LLP, 255 F. Supp. 2d 1, 1-3

(D.D.C. 2003); HCA, Inc. v. United States ex

rel. Pogue, 2002 WL 31953748, at *3-*4

(M.D. Tenn. 2002); In re Subpoena Issued to

Boies, Schiller & Flexner LLP, 2003 WL

1831426, at *1 (S.D.N.Y. 2003). Contra

Visx, Inc. v. Nidek Co., 208 F.R.D. 615, 616

(C.D. Cal. 2002).

The petition for writ of mandamus is DENIED.