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

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### m 06-20835 

### m 06-20836 Summary Calendar

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I N RE : 

### C LIENTS AND 

### F ORMER 

### C LIENTS OF 

### B ARON 

### & B UDD 

### , P.C. AND 

### O CCUPATIONAL 

### M EDICAL 

### R ESOURCES 

### , I NC 

### ., Petitioners.

_________________________ Petitions for Writs of Mandamus to th e United States District Court fo r the Southern District of Texas 

### m H-06-MC-306

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Before S MITH , WIENER , and O WEN , Circuit Judges.
P ER C URIAM : Petitioners are Occupatio nal 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 mo tions to int ervene and mo
tions to quash regarding a subpoena. We deny the peti tion.
I. The respondents are defendants in mat ters pending in t he Asbestos Multi-District Lit iga-2

tion Court No. 875 (“MDL 875”) in th e Unit

ed States Di strict Court for the Eastern District of Pennsylvania. Pursuant to Federal Rule of Civil Procedure 45, respondents issued a subpoena th

rough th e Unit ed States District Court fo r th e Southern District of Texas fo r th e production of docu ments and mat erial from OMR. The individuals moved t o int ervene, and to quash th e subpoena, in th e Texas court. OMR also moved to quash in that court; it s mo tion remains unresolved. The Texas court entered the order that is now bein g challenged; it (1) denied the individuals’ mo tions and (2) dir ected th at “[a]ll future pleadings in t his case be filed in MDL 875.” P eti tioners complain only about the second part of th e order.
II. Petitioners rely largely on th e t ext of rule 45(c )(3)(A ), which states that “the court by which a subpoena wa s i ssued shall quash or mo dify th e subpoena

. . . .” To the same effect, rule 45(e) states th at “[f]ailure by any person wit hout adequate excuse to obey a subpoena served upon th at person may be deemed a com tem pt o f the court from which the subpoena issued.” Peti tioners claim that by the text of th ese two provisions, only t he Texas court may enforce th e subpoen a and protect parties from its terms. Respondents answer t hat MDL proceedings are to be treated differently. They rely primarily on 28 U.S.C. § 1407(b), dealing wit h MDL proceedings, which provides th at “[t]he judge to whom such [MDL] actions are assigned

. . . may exercise the powers of a district judge in any district fo r th e purpose of conducting pretri al depositions in such coordinated or consol idated pretri al proceedings.” The question of law th at we must dec ide to eval uate the m andamus peti

tion is whether th e authorit y conferred on th e MDL court by § 1407(b) e xt ends beyond depositions so as to embrace the instant subpoenas.

III. Based on th e overwhelming weight of authority , we answer in th e affirmat ive. A persuasive analysis is set f

orth in a leading treati se:
A mo tion to quash or m odify a subpoena is to be granted by “t he court b y which a subpoena was issued.” If a subpoena is issued by a district court oth er th an th e one in which the case is pending

. . ., th e proper court in which to file a motion to quash or mo dify th e subpoena is the issuing court, not the court in which th e action is pending

. . . .

. . . Certain federal statutes create an excepti on to the rule that onl

y t he issuing court may quash, mo dify, or enforce a subpoena. F or example, th e mult idist rict lit igat io n (MDL) statute

. . . authorizes a judge assigned an MDL ac ti on to “ exercise the powers of a district judge in any district fo r th e purpose of conducting pret r ial depositions in such coordinated or consolidated pretri al 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 motio ns to com

pel or motions to quash or mo dify subpoenas directed to nonparties in any district. Though the statutory language refers to “pretrial depositions,” th e statute wisely has been int erpreted to embrace document production subpoenas as well.
9 J AMES W. M OORE ET AL

. , M OORE ’ S FED

ERAL P RACTICE § 45.50[4], at 45-75 th rough3

45-77 (Matthew Bender 3d ed. 2006) (footnotes om it ted). “In mult idist rict l

it igation, the court in charge of the consolidated proceedings has th e power to rule on a mo tion to quash subpoenas.” 9A C HARLES A. WRIGHT & ARTHUR R. M ILLER , FEDERAL P RACTICE AND P ROCEDURE § 2459, 2006 Supp., at 19 (West 1995). “The court in charge o f consolidated proceedings has power to rule on a mo tion to quash subpoenas.” Id. at 19 n.14.2.
This conclusion is supported by th e c o nvin cing 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 & Goodw in 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). C ontra Visx, Inc. v. Nidek Co. , 208 F.R.D. 615, 616 (C.D. Cal. 2002). The peti tion for writ of mandamus is DENIED.