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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IN RE SUBPOENA TO AMERICAN 

HOTEL & LODGING ASSOCIATION Miscellaneous Action No. 19-191 (CKK)

MEMORANDUM OPINION

(November 27, 2019)

The Court is in receipt of non-party American Hotel and Lodging Association’s 

(“AHLA”) [1] Motion for a Protective Order and [3] Motion to Quash or Modify the Subpoena. 

On May 1, 2019, non-party AHLA received service of a subpoena from the plaintiff in a 

case pending in the United States District Court for the Eastern District of Texas. See ECF No. 1-

2, Ex. B. At the time the subpoena was served, a protective order was not in place. In July 2019, 

the Eastern District of Texas court issued a protective order which included a provision stating 

that any party that produced documents labeled confidential subjected itself and its counsel to the 

jurisdiction of the Eastern District of Texas. See ECF No. 1-3, Ex. C, 3 n.1. AHLA objects to this 

provision in the protective order indicating that it submits to the jurisdiction of the Eastern 

District of Texas by producing documents labeled confidential. None of the parties to the 

underlying litigation object to a modification of the Texas protective order which would make

clear that non-party AHLA does not submit to the jurisdiction of the Eastern District of Texas by 

producing confidential documents. ECF No. 1, 3. However, for reasons not evident to this Court, 

the parties have thus far refused to request a modification of the protective order from the 

Eastern District of Texas court. Instead, AHLA comes to this Court seeking protection or 

modification. 

Federal Rule of Civil Procedure 45 governs discovery of non-parties through subpoena. 

Fed. R. Civ. P. 45. Pursuant to Rule 45, the court where the action is pending has jurisdiction to 

issue subpoenas to non-parties. Fed. R. Civ. P. 45(a)(2). Here, the subpoena to non-party AHLA 

was rightfully issued by the court in the Eastern District of Texas, as that court is the court where 

the underlying litigation is pending. See TravelPass Group, LLC, et al. v. Caesars Entertainment 

Corporation, et al., Civil Action No. 5:18-CV-153-RWSCMC (E.D. Tex.). However, Rule 45 

vests the court “where compliance is required” with jurisdiction to resolve disputes relating to 

the subpoena of a non-party. Fed. R. Civ. P. 45(d)(2)(B)(i), (d)(3), (e)(2)(B). Non-party AHLA is 

a nonprofit trade association headquartered in Washington, D.C. Status Report, ECF No. 2, 2. 

And, AHLA’s production of documents required by the subpoena is designated to occur in 

Washington, D.C. See ECF No. 1-2, Ex. B. As such, the United States District Court for the 

District of Columbia is the court where compliance is required and is thus the court with 

jurisdiction over AHLA’s compliance with the subpoena. 

The Court begins by noting that non-party AHLA’s fears pertaining to the Texas 

protective order may well be unfounded. AHLA argues that the Texas protective order requires 
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that it submit itself and its counsel to the Eastern District of Texas’s jurisdiction by producing 

documents labeled as confidential. It is true that AHLA’s production of documents would be 

protected by the Texas protective order. Pursuant to the Texas protective order, “[t]hird parties 

from whom discovery is requested are entitled to the protections of this Order in responding” to 

subpoenas and discovery requests. ECF No. 1-3, Ex. C, 10. However, it is not obvious that the 

disputed portion of the Texas protective order would apply to non-party AHLA. The disputed 

portion of the protective order indicates that “[a] party may designate a document as 

Confidential Information of Highly Confidential Information for protection under this Order.” 

Id. at 2 (emphasis added). A footnote then goes on to explain that “[b]y designating documents 

confidential pursuant to this Order, counsel submits to the jurisdiction and sanctions of this Court 

on the subject matter of the designation.” Id. at 3 n.1. Reading this footnote in context, it appears 

to the Court that the footnote applies to counsel of parties, not to counsel of non-parties such as 

AHLA. 

Moreover, non-party AHLA’s fear that, under the protective order, “[a]ny dispute 

regarding the subpoena or AHLA’s production would require AHLA and its counsel to travel 

halfway across the country to protect AHLA’s interests” is allayed by Rule 45. ECF No. 1, 3. 

Pursuant to Rule 45 it is the court “where compliance is required” that resolves objections 

relating to subpoenas, quashes or modifies subpoenas, and makes privilege determinations over 

subpoenaed documents. Fed. R. Civ. P. 45(d)(2)(B)(i), (d)(3), (e)(2)(B). As such, this Court, not 

the Eastern District of Texas court, has jurisdiction and is tasked with resolving disputes 

regarding the subpoena and AHLA’s production. 

Despite the protections afforded to non-parties by Rule 45, AHLA still requests that this 

Court issue a protective order making clear that the United States District Court for the District 

of Columbia is “the place for enforcement” of the subpoena. ECF No 1, 3. The Court begins by 

noting that it is not clear that this Court has the power to preemptively issue a protective order

under these circumstances. Again, pursuant to Rule 45, the court where compliance is required 

has the power to resolve objections relating to subpoenas, to quash or to modify subpoenas, and 

to make privilege determinations over subpoenaed documents. Fed. R. Civ. P. 45(d)(2)(B)(i), 

(d)(3), (e)(2)(B). However, Rule 45 does not discuss the issuance of protective orders such as the 

one requested here. Additionally, Federal Rule of Civil Procedure 26 explicitly states that “[a] 

party or any person from whom discovery is sought may move for a protective order in the court 

where the action is pending—or as an alternative on matters relating to a deposition, in the court 

for the district where the deposition will be taken.” Fed. R. Civ. P. 26(c)(1). As such, under both 

Rules 45 and 26 it does not appear that this Court has the authority to issue a protective order in 

these circumstances. Despite the Court’s request that AHLA “cite to caselaw in explaining this 

Court’s jurisdiction” to issue a protective order, AHLA cited no case in which a court issued a 

protective order in a situation comparable to this one. November 18, 2019 Minute Order. And, 

on its own research, the Court could locate no such case. 

However, as has already been explained, the fact that this Court may not be able to issue 

a protective order does not deprive AHLA of the protection it seeks. No party to the litigation 

objects to this Court being the place for enforcement of the subpoena to AHLA. ECF No. 1, 3. 
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And, as the undisputed court “where compliance is required,” this Court has the authority to 

resolve disputes concerning the subpoena and non-party AHLA’s production, should any such 

disputes eventually arise. Fed. R. Civ. P. 45(d)(2)(B)(i), (d)(3), (e)(2)(B).

For the reasons provided, the Court DENIES WITHOUT PREJUDICE non-party 

AHLA’s [1] Motion for a Protective Order. The Court further GRANTS IN PART AND 

DENIES IN PART non-party AHLA’s [3] Motion to Quash or Modify the Subpoena. The Court 

GRANTS the Motion insofar as AHLA seeks to ensure that the United States District Court for 

the District of Columbia is the court with jurisdiction to resolve disputes pertaining to the 

subpoena. This outcome is required by Rule 45 and no party disputes that this court is the court 

where compliance is required. The Court otherwise DENIES non-party AHLA’s [3] Motion to 

Quash or Modify the Subpoena. 

 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge