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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Venus Medical Incorporated,

Plaintiff, 

v. 

Skin Cancer & Cosmetic Dermatology 

Center PC, et al., 

Defendants.

No. 15-00062MC 

ORDER 

 Before the Court is Petitioners Venus Medical Inc. and Michael Howe’s Motion 

for Contempt for Failure to Comply with Subpoenas. (Doc. 1.) The motion relates to 

two subpoenas for production of documents issued from the Northern District of Georgia 

to nonparties David G. Roberts, an Arizona resident, and David G. Roberts & Associates, 

Inc., an Arizona corporation. (Doc. 1-1).1

 The motion is fully briefed, and neither party 

requested oral argument. For the reasons stated below, the motion is transferred to the 

Northern District of Georgia. 

BACKGROUND

 The following facts are undisputed unless otherwise noted. On November 3, 

2014, the Northern District of Georgia issued two subpoenas on behalf of Venus to David 

 

1

 Also pending before the Court is Roberts and David G. Roberts & Associates, 

Inc.’s motion for leave to file two additional affidavits in connection with their response to Venus’ motion for contempt. (Doc. 13.) The motion is fully briefed. Because Venus’ motion is transferred, the motion is denied as moot. 

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G. Roberts and David G. Roberts & Associates, Inc. (collectively referred to as 

“Respondents”). The subpoenas relate to a breach of contract action before Judge Mark 

H. Cohen, see Venus Medical, Inc. v. Skin Cancer & Dermatology Center, P.C., No. 

1:12-cv-4425-MHC, to which Respondents are not parties. Roberts, however, is an 

employee of the defendant in the underlying action. 

 The subpoenas directed Respondents to produce all “business, practice 

management or financial reports, recommendations or analyses you have prepared or 

provided to [the defendants] between April 2010 and the present.” (Doc. 1-1 at 28 

(alterations added).)2

 In addition, Respondents were to produce all “analyses, mark-ups, 

drafts, memoranda, communications or other documents that evidence, refer or relate to 

negotiation of the 2010 Restructured Agreement.” (Id.) Respondents never challenged 

the subpoenas, and they ultimately produced 118 documents by December 1, 2014. 

 Nearly eight months later, on June 30, 2015, Roberts was deposed in connection 

with the underlying action. (Doc. 1-3 at 2.) At the deposition, it was discovered that 

Roberts did not disclose a February 24, 2010 memorandum created by his wife detailing 

meeting notes (the “meeting notes”) of negotiations regarding the contract at issue. 

Venus also discovered that multiple versions of the meeting notes existed, some with 

changes material to the issues in the underlying case. When asked why he did not 

disclose the document, Roberts stated that he did not think the subpoena was directed at 

his wife and that it was in his wife’s filing cabinet. (Id. at 13-14.) 

 Venus also discovered that Roberts did not disclose a financial document referred 

to as a “monitor,” which was prepared by Roberts for the defendant in the underlying 

action. Roberts ultimately produced the monitor, but did not disclose the financial 

documents on which they were based. Roberts claims the monitors were in the custody 

of another employee of the defendant and were disclosed to Venus by the defendant. 

(Doc. 8 at 11.) 

 

2

 Citations to pages in the Court’s docket are to the page numbers stamped at the top of the page by the Court’s CM/ECF system, not the page numbers at the bottom of each page. 

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 As a result of these alleged deficiencies, Venus issued a Request for Entry Upon 

Land for Inspection for the computers of Roberts and his wife in order to conduct a 

forensic computer search for all documents and correspondence related to the meeting 

notes. (Doc. 1-4.) Roberts retained counsel and refused the inspection. He then sent his 

computers to an independent forensic examiner, Brian Chase. Venus ultimately 

consented to Chase performing the search of the computers. 

 The search revealed multiple versions of the meeting notes and disclosed that 

Roberts had sent and received multiple versions of the meeting notes via email, some of 

which were dated after the underlying action had commenced. (Doc. 1-6.) In an email 

dated May 10, 2013, Roberts indicated that he placed the meeting notes in his own 

correspondence file. (Id. at 5.) 

 After receiving the report, Venus discovered that the forensic examiner did not 

conduct a broader search for documents that merely “discussed” the meeting notes. The 

examiner allegedly only searched for the meeting notes themselves and any emails to 

which they were attached. Venus also raises other alleged deficiencies in Roberts’ 

production under the subpoenas. 

 On October 2, 2015, Venus filed the instant motion requesting the Court to 

transfer to motion to the Northern District of Georgia, or alternatively, to hold Roberts 

and his company in contempt for failing to comply with the subpoenas and order a 

complete forensic search of the computers. 

LEGAL STANDARD

 Subpoenas served on nonparties are governed by Fed. R. Civ. P. 45, which 

requires that “a subpoena must be issued by the court where the underlying action is 

pending, but challenges to the subpoena are to be heard by the district court 

encompassing the place where compliance with the subpoena is required.” Woods ex rel. 

United States v. SoutherCare, Inc., 303 F.R.D. 405, 406 (N.D. Ala. 2014). “When the 

court where compliance is required did not issue the subpoena, it may transfer a motion 

under this rule to the issuing court if the person subject to the subpoena consents or if the 

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court finds exceptional circumstances.” Fed. R. Civ. P. 45(f). The Advisory Committee 

note further explains the relevant considerations underlying the exceptional 

circumstances standard: 

In the absence of consent, the court may transfer in exceptional 

circumstances, and the proponent of transfer bears the burden of showing 

that such circumstances are present. The prime concern should be avoiding 

burdens on local nonparties subject to subpoenas, and it should not be 

assumed that the issuing court is in a superior position to resolve subpoenarelated motions. In some circumstances, however, transfer may be 

warranted in order to avoid disrupting the issuing court’s management of 

the underlying litigation, as when that court has already ruled on issues 

presented by the motion or the same issues are likely to arise in discovery 

in many districts. Transfer is appropriate only if such interests outweigh 

the interests of the nonparty served with the subpoena in obtaining local 

resolution of the motion. 

Fed. R. Civ. P. 45(f) advisory committee’s note (2013). Ultimately, the court must 

balance the interest of local resolution against factors such as judicial economy and risk 

of inconsistent rulings. See Moon Mountain Farms, LLC v. Rural Cmty. Ins. Co., 301 

F.R.D. 426, 429-30 (N.D. Cal. 2014).

ANALYSIS

I. Transfer 

 Respondents oppose Venus’ efforts to transfer the motion to the Northern District 

of Georgia. Therefore, absent consent, Venus “bears the burden of showing that 

[exceptional] circumstances are present.” Fed. R. Civ. P. 45(f) advisory committee notes 

(2013). Venus argues that the instant motion raises some of the same issues that are 

pending in a related motion filed before the Northern District of Georgia. That motion 

was filed in August 2015 and is now fully-briefed. It further argues that Roberts is 

intimately involved in the Georgia litigation and that transfer would impose little burden 

on him and his company. (Doc. 1 at 7.) Respondents argue exceptional circumstances do 

not justify transfer because Roberts lives in Arizona, the computers are located in 

Arizona, and there is no possibility of inconsistent rulings. (Doc. 8 at 23-24.) On 

balance, the Court finds the factors weigh in favor of transfer. 

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A. Inconsistent Rulings 

 The “potential for inconsistent rulings should be avoided and weighs in favor of a 

single judicial officer deciding all of [the] disputes.” Wultz v. Bank of China, Ltd., 304 

F.R.D. 38, 46 (D.D.C. 2014). On August 17, 2015, Venus filed a Motion for Discovery 

Sanctions against Respondents in the Northern District of Georgia based on the same 

alleged failures to produce documents alleged in the instant motion. (Doc. 1 at 7.) The 

motion sets forth the same allegations raised in the instant motion, i.e., that Roberts failed 

to produce the meeting notes, that multiple versions of the meeting notes have been 

discovered with material alterations made after the litigation began, and that Roberts 

explained that he failed to produce the meeting notes because they were prepared by his 

wife. (Case No. 1:12-cv-04425-MHC (N.D. Ga.), Doc. 137-1 at 27-30.) 

 Although the motions request different relief, they require consideration of the 

same issues, which Respondents do not dispute. Venus’ motion for discovery sanctions 

before Judge Cohen is fully briefed, but has not yet been decided. (Case No. 1:12-cv04425-MHC (N.D. Ga.), Docs. 153, 173.) Because two motions involving substantially 

similar issues are pending before two different courts, the danger of inconsistent rulings 

is present. This factor militates heavily in favor of transfer. See Agincourt Gaming, LLC 

v. Zynga, Inc., No. 2:14.cv.0708-RFB-NJK, 2014 WL 4079555, at *7 (D. Nev. Aug. 15, 

2014) (finding that because similar discovery issues in issuing district had been briefed, 

the danger of inconsistent rulings therefrom weighed in heavily in favor of transfer);

Valle del Sol, Inc. v. Kobach, No. 14-mc-219-JAR, 2014 WL 3818490, at *4 (D. Kan. 

Aug. 4, 2014) (finding exceptional circumstances where similar issues arose in discovery 

in multiple districts thereby creating risk of inconsistent rulings). 

B. Judicial Economy 

 Judicial economy also weighs in favor of transfer. The underlying action is over 

three years old and involves discovery sought from several defendants. The Northern 

District of Georgia is more familiar with the issues remaining in the case, the history of 

discovery, the relevance of the documents sought by Venus in the instant motion, and 

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whether permitting an additional forensic search of the computers is necessary. It also 

has knowledge as to whether Venus has already obtained the same discovery from other 

defendants, as alleged by Respondents. (Doc. 8 at 12, 17.) In addition, similar issues 

have already been briefed and are ripe for review. Accordingly, this factor weighs in 

favor of transfer. 

C. Burden on Respondents 

 “The primary factor to consider in balancing [the factors] is any burden imposed 

on local non-parties by transferring the motions to the issuing court.” Zynga, 2014 WL 

4079555, at *7. Respondents do not argue, and the Court does not find, that transfer to 

the Northern District of Georgia will cause undue burden. 

 Roberts is an employee of one of the defendants in the underlying action and it is 

undisputed that he regularly travels to Georgia for work. In addition, although he is not a 

party, Roberts has been heavily involved in the litigation and is represented by Georgia 

attorneys. As such, the Court concludes Respondents would incur no prejudice as a result 

of transfer. This factor does not weigh against transfer. See Moon Mountain Farms, 301 

F.R.D. at 430-31 (finding no burden where respondent argued increased cost of litigation 

and noting that the Advisory Committee “encourages judges” to allow telephonic 

communications to minimize travel costs). 

D. Conclusion 

 The Court concludes that transferring the motion to the Northern District of 

Georgia “promotes judicial economy, prevents inconsistent judicial decisions, and does 

not impose any meaningful burden on [Respondents].” Zynga, 2014 WL 4079555, at *8. 

Thus, exceptional circumstances exist for transfer of the motion. 

II. Contempt 

 Because the Court concludes that exceptional circumstances warrant transfer to the 

Northern District of Georgia, the Court need not address Venus’ arguments relating to the 

merits of its motion for contempt. 

III. Motion for Leave to File Additional Affidavits 

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 Respondents filed a Motion for Leave to File Additional Affidavits of Brian Chase 

and Gloria Roberts. (Doc. 13.) Venus does not object. (Doc. 18.) However, the 

affidavits relate to the issue of contempt, and because the motion for contempt is 

transferred, the Court denies the motion as moot. 

IT IS ORDERED that Venus’ motion to transfer, (Doc. 1), is GRANTED, and 

Respondents’ motion for leave to file additional affidavits, (Doc. 13), is DENIED. The 

motion is hereby TRANSFERRED to the Northern District of Georgia. The Clerk shall 

terminate this action. 

 Dated this 13th day of January, 2016. 

Douglas L. Rayes 

United States District Judge

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