UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ANDREW D. LIPMAN, ) ) Petitioner, ) ) v. ) ) PATRICK ANTOON, JR., ) Case No. 17-mc-1892 (EGS) ) Respondent. ) )
MEMORANDUM OPINION
I. Introduction
Pending before the Court are (1) petitioner Andrew Lipman’s
motion to quash a subpoena served on him by Patrick Antoon, Jr.,
plaintiff in an underlying action before the United States
District Court for the Western District of Arkansas (“Western
District of Arkansas”), Mot. Quash, ECF No. 1; and (2)Mr.
Antoon’s motion to transfer Mr. Lipman’s motion to quash to the
Western District of Arkansas, Mot. Transfer, ECF No. 2. Upon
consideration of the motion to quash and the motion to transfer,
the responses and replies, the applicable law, and the entire
record, Mr. Antoon’s motion to transfer shall be GRANTED, and
this miscellaneous proceeding, including the pending motion to
quash, shall be TRANSFERRED to the Western District of Arkansas.
1 II. Background
Mr. Antoon has been imprisoned in an Arkansas Department of
Corrections facility since March 2014. Opp’n Transfer 3, ECF No.
5. He sued defendant Securus Technologies, Inc. (“Securus”), a
company that provides Inmate Calling Services (“ICS”) to “more
than 3,400 public safety, law enforcement, and corrections
agencies and over 1.2 million inmates,” on behalf of similarly
situated persons who were “charged exorbitant rates and fees” to
use its ICS intrastate services. Id.
Mr. Antoon filed his complaint on January 9, 2017 in the
Western District of Arkansas. The case was assigned to District
Court Judge Timothy Brooks. See Antoon v. Securus Techs., Inc.,
Civ. No. 5:17-cv-5008 (W.D. Ark.). Following the resolution of
Securus’ motion to dismiss, Mr. Antoon’s surviving claims
against Securus are for unjust enrichment and for a violation of
the Arkansas Deceptive Trade Practices Act. Moffa Decl. ¶ 5, ECF
No. 2-1. Discovery has been on-going since April 2017 and is
scheduled to end in March 2018. See Case Management Order 2, ECF
No. 53 (5:17-cv-5008). Currently pending before Judge Brooks are
Securus’ motion for summary judgment, ECF No. 52 (5:17-cv-5008),
and its motion for a protective order regarding Mr. Lipman’s
nonparty subpoena, ECF No. 65 (5:17-cv-5008).
2 Mr. Antoon’s case is the fourth of four related ICS cases
before Judge Brooks. 1 Mojica v. Securus Techs. Inc. is one of
these related cases against Securus for its interstate ICS
practices. Civ. No. 14-5258 (W.D. Ark.) In both the interstate
and intrastate cases against Securus, the parties are
represented by the same counsel. See Mot. To Quash 13, ECF No.
1. The interstate ICS cases are scheduled for trial pending the
en banc review of Global Tel*Link v. FCC, 859 F.3d 39 (D.C. Cir.
2017), which concerns the legality of the Federal Communications
Commission’s (“FCC”) interstate ICS regulations. Id.
Mr. Lipman, the nonparty subpoena recipient, is a partner at
Morgan, Lewis & Bockius, the law firm representing Securus in
the underlying matter. Mot. Quash 3, ECF No. 1. He is also the
Chairman of the firm’s Advisory Board, a “leadership” position.
Id. Mr. Lipman specializes in telecommunications work and was
involved in providing comments to the FCC regarding its ICS
rulemaking proceedings. Opp’n Quash 5, ECF No. 3. Mr. Lipman
submitted the comments on behalf of himself and “clients with an
interest in the provision of Inmate Calling Services.” Id.
(citing FCC Docket WC 12-375).
On July 20, 2017, Mr. Antoon served Mr. Lipman with a
subpoena. Opp’n Transfer 4, ECF No. 5. The subpoena requests
1 See Chruby v. Global Tel*Link Corp., Civ. No. 15-5136 (W.D. Ark.); Mojica v. Securus Techs. Inc., Civ. No. 14-5258 (W.D. Ark.); In re Global Tel*Link Corp. ICS Litig., Civ. No. 14-5275 (W.D. Ark.).
3 documents and testimony in connection with the statements Mr.
Lipman made to the FCC in WC Docket No. 12-375: Rates for
Interstate Inmate Calling Services. The subpoena seeks six
categories of documents:
[1] [R]etainer agreement(s) and any documents confirming [Mr. Lipman’s] retention by any ICS provider(s) for services rendered . . . in connection with WC Docket No. 12-375: Rates for Interstate Inmate Calling Services; [2] Documents sufficient to identify the certain clients with an interest in the provision of inmate calling services (ICS) on whose behalf [Mr. Lipman] submitted [his February 20, 2015] letter to . . . [the FCC]; [3] Documents sufficient to identify the certain clients with an interest in the provision of inmate calling services (ICS) on whose behalf [Mr. Lipman] submitted [his October 15, 2015] letter to . . . [the FCC]; [4] Invoices, billing records, or other documents reflecting any invoices [Mr. Lipman] sent to Defendant for services rendered in connection with the following filings submitted by [Mr. Lipman] to the [FCC] in WC Docket No. 12-375: Rates for Interstate Inmate Calling Services: [February 20, 2015 Letter; September 28, 2015 Letter; October 15, 2015 Letter]; [5] Documents supporting the positions advanced in [Mr. Lipman’s February 20, 2015 letter to the FCC] . . . .; [6] Documents supporting the positions advanced in [Mr. Lipman’s April 8, 2015 letter to the FCC] . . . .
Subpoena 12-13, ECF No. 1-2.
Mr. Lipman subsequently moved this Court to quash the
subpoena, arguing that the subpoena seeks irrelevant information
and that it seeks information protected by the attorney-client
4 privilege and work product doctrine. Mot. Quash, ECF No. 1.
Thereafter, Mr. Antoon moved to transfer Mr. Lipman’s motion to
the Western District of Arkansas. See Mot. Transfer, ECF No. 2.
III. Analysis
Federal Rule of Civil Procedure 45(f) states in relevant
part:
When the court where compliance [with a subpoena] 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 court finds exceptional circumstances.
Fed. R. Civ. P. 45(f). According to the Advisory Committee Note
accompanying the 2013 amendments to Rule 45, the “prime concern”
in assessing whether “exceptional circumstances” exist to permit
transfer, “should be avoiding burdens on local nonparties
subject to subpoenas . . . .” Fed. R. Civ. P. 45(f) advisory
committee’s note. While “it should not be assumed that the
issuing court is in a superior position to resolve subpoena-
related motions,” “transfer may be warranted in order to avoid
disrupting the issuing court’s management of the underlying
litigation . . . if such interests outweigh the interests of the
nonparty served with the subpoena in obtaining local resolution
of the motion.” 2 Id. To carry out this balancing test, courts in
2 “If the motion is transferred, judges are encouraged to permit
telecommunications methods to minimize the burden a transfer imposes on nonparties.” Fed. R. Civ. P. 45(f) advisory committee’s note.
5 this Circuit have considered “the complexity, procedural
posture, duration of pendency, and the nature of the issues
pending before, or already resolved by, the issuing court in the
underlying litigation.” Judicial Watch, Inc. v. Valle Del Sol,
Inc., 307 F.R.D. 30, 34 (D.D.C. 2014). Courts have also
considered the goals of judicial economy and the avoidance of
inconsistent results. Wultz v. Bank of China, Ltd., 304 F.R.D.
38, 46 (D.D.C. 2014). “[T]he proponent of transfer bears the
burden of showing that [exceptional] circumstances exist.” Fed.
R. Civ. P. 45(f) advisory committee’s note.
Mr. Antoon argues that this Court should transfer Mr.
Lipman’s motion to quash because his arguments are based on the
parties’ “substantive allegations and defenses,” with which the
issuing court is more familiar. Mot. Transfer 2, ECF No. 2. Mr.
Antoon further argues that transfer is warranted to avoid
issuing inconsistent rulings and disrupting the issuing court’s
management of the underlying action. Id. Finally, Mr. Antoon
argues that any burden on Mr. Lipman is negligible given that he
is represented by the same law firm that represents Securus in
the underlying action, and because Judge Brooks permits counsel
to argue discovery motions by telephone. Id. Mr. Lipman counters
that the motion to quash involves a “threshold application” of
the attorney client-privilege and the work product doctrine,
which are “legal question[s] separate from the underlying
6 litigation’s merits.” Opp’n Transfer 1-2, ECF No. 5. As a
nonparty subpoena respondent located in the District of Columbia
without a connection to the Western District of Arkansas, Mr.
Lipman argues that he will be burdened if he has to argue his
motion before the issuing court. Id. at 16-17.
The Court finds that the exceptional circumstances present
weigh in favor of transferring the motion to quash because (1)
the burden on Mr. Lipman is negligible and (2) consideration of
the Judicial Watch factors militates strongly in favor of
transfer. See 307 F.R.D. at 34.
A. Transferring the motion to quash will not unduly burden Mr. Lipman In determining whether exceptional circumstances exist to
permit transfer, the Court’s “prime concern should be avoiding
burdens on local nonparties subject to subpoenas.” Fed. R. Civ.
P. 45(f) advisory committee’s note. Mr. Antoon argues that the
burden on Mr. Lipman is “negligible” because he is represented
by the same law firm that represents Securus and because the
issuing court will preside over Securus’ motion for a protective
order concerning this very subpoena. Mot. Transfer 10, ECF No.
2. Mr. Antoon also notes that “Judge Brooks’ case management
procedures permit counsel to appear for discovery . . . hearings
telephonically,” a method of participation specifically
contemplated by the Advisory Committee Notes to minimize the
7 burden that transfer could impose on nonparties. Id. Finally,
Mr. Antoon states that any deposition of Mr. Lipman would occur
in the District of Columbia, where it was originally noticed.
Id. at 10-11. Mr. Lipman argues that his burden is not
“negligible” because he is represented by different lawyers than
those that represent Securus. Opp’n Transfer 16, ECF No. 5. He
also asserts that because he and his attorney are based in the
District of Columbia, he “should not be forced to litigate in
the Western District of Arkansas—a district to which he has no
connection.” Id. at 17.
Mr. Lipman has not explained how he would be burdened by
litigating the motion in the Western District of Arkansas. See
Duck, 317 F.R.D. at 326 (transferring motion to compel in part
because defendant “fail[ed] to identify any burden that might
exist in arguing [its motion] before the [issuing district
court]”). Further, Mr. Lipman, Chairman of Morgan Lewis, is
represented by his own firm, the same “global” law firm that
represents Securus. Mot. Quash 13, ECF No. 1. In this
circumstance, “the general interest in protecting local
nonparties by requiring local resolution of subpoena-related
disputes is significantly reduced” because Mr. Lipman is
represented by a firm familiar with this litigation and the
issuing court. Judicial Watch, 307 F.R.D. at 35. Moreover, Judge
Brooks’ case management procedures contemplate resolving
8 discovery disputes by telephone conference. See Case Management
Order 4, ECF No. 53 (5:17-cv-5008). Therefore, there is a
“strong possibility that [Mr. Lipman’s] counsel will not even
need to leave Washington, D.C. to litigate the motion.” Flynn,
216 F. Supp. 3d at 49.
B. Exceptional circumstances weigh in favor of transfer With regard to the Judicial Watch factors, only one of
those factors—the short pendency of the underlying suit—weigh
against transferring. The remaining factors support Mr. Antoon’s
argument. See 307 F.R.D. at 34. The underlying litigation has
only been pending for about a year, which is much shorter than
other cases warranting transfer. See, e.g., Duck v. SEC, 317
F.R.D. 321, 324–25 (D.D.C. 2016) (over four years). Compare with
Flynn v. FCA US LLC, 216 F. Supp. 3d 44, 47 (D.D.C. 2016)
(fifteen month pendency weighs against transfer). Furthermore,
because Antoon has been recently filed, discovery has “just
begun.” Opp’n Transfer 4, ECF No. 5.
However, its relatively early stage is not dispositive.
Transfer can be appropriate when it would “avoid interference
with a time-sensitive discovery schedule issued in the
underlying action.” Duck, 317 F.R.D. at 325. In Duck, the mere
nine months left to complete discovery warranted transfer to
avoid disrupting case management. Id. at 325. Here, discovery is
set to close in March 2018, two months from now. See Case
9 Management Order, ECF No. 53 (5:17-cv-5008). Therefore, there is
a “real risk” that not transferring the motion could interfere
with Judge Brooks’ “streamlined procedure for resolving
discovery disputes.” Flynn, 216 F. Supp. 3d at 48. Thus,
transferring the motion is necessary to avoid “disrupting the
issuing court's management of the underlying litigation.” Fed.
R. Civ. P. 45(f) advisory committee's note.
Consideration of the remaining Judicial Watch factors
weighs in favor of transfer. 307 F.R.D. at 34. With respect to
the underlying case’s complexity, Mr. Antoon has only two
relatively straightforward claims. While his case may not be
complex on its own, the underlying suit is complicated because
it is one of four related cases challenging ICS practices. The
two interstate ICS cases have been pending before Judge Brooks
since 2014 and are ready for trial after extensive discovery
efforts. Moffa Decl. ¶ 12, ECF No. 2-1.
While Mr. Lipman argues that Antoon is distinct from the
three pending ICS cases, see Opp’n Transfer 8-12, ECF No. 5, his
arguments in his motion to quash indicate otherwise. See Mot.
Quash 10-14, ECF No. 1. For example, Mr. Lipman argues that Mr.
Antoon is using this subpoena to fish for information to be used
in the related interstate case Mojica. Id. Moreover, there is a
motion pending in Mojica that concerns the same information
requested in the instant subpoena. Moffa Decl. ¶ 13, ECF No. 2-
10 1; see Mot. in limine, ECF No. 282 (Mojica, 14-cv-5258). As
explained more thoroughly below, it is clear to this Court that
any decision in Antoon could impact the other three cases
pending before Judge Brooks, complicating the underlying suit.
Similarly, transfer is warranted to avoid the “risk of
inconsistent results” in the underlying litigation. Duck, 317
F.R.D. at 316 (quoting Fed. R. Civ. P. 45(f) advisory
committee’s note). In Duck, transfer was warranted in part
because there was a pending motion for summary judgment before
the issuing court. Therefore, resolving the motion to compel
could “create the potential for inconsistent or conflicting
rulings.” Id. at 324-25. So here too. Pending before Judge
Brooks is Securus’ motion for summary judgment and its motion
for a protective order. See Mot. Protective Order, ECF No. 65
(5:17-cv-5008). The motion for a protective order was filed on
the same day as Mr. Lipman’s motion to quash and it puts forward
identical arguments. See id.; Mot. Quash, ECF No. 1. Both
motions argue that Mr. Antoon’s subpoena requests irrelevant
information in an effort to improperly obtain discovery for use
against Securus in Mojica.
Mr. Lipman argues that there is no danger of inconsistent
rulings because Judge Brooks has not ruled on the motion for a
protective order. Opp’n Transfer 13, ECF No. 5. Not so. This
Court’s ruling could still disrupt Judge Brooks’ management of
11 the case. It is clear that courts in this Circuit are concerned
about the potential for inconsistent results. See, e.g., Wultz,
304 F.R.D. at 46. If this Court resolved Mr. Lipman’s motion to
quash, its decision could conflict with Judge Brooks’ resolution
of the same arguments.
This danger is not limited to the motion for a protective
order. Also pending before Judge Brooks are other nonparty
respondents’ motions to quash, which have already been
transferred. See Moffa Decl. ¶ 8, ECF. No 2-1. Finally, Judge
Brooks is reviewing similar discovery issues in the related ICS
cases. Mr. Lipman’s statements to the FCC—the statements at the
heart of this subpoena—are the “subject” of a pending motion in
limine in Mojica. Moffa Decl. ¶ 13, ECF No. 2-1; see Mot. in
limine, ECF No. 282 (Mojica, 14-cv-5258); Subpoena, ECF No. 1-2.
Given Judge Brooks’ “familiarity with the full scope of issues
involved as well as any implications the resolution of the
motion will have on the underlying litigation,” he is better
suited to make consistent determinations across all four cases.
Wultz, 304 F.R.D. at 46.
Most importantly, Mr. Lipman’s motion to quash raises
multiple issues that are closely connected to the merits of the
underlying case, the interstate ICS cases, and the more than a
decade-long FCC ICS rulemaking proceeding. To illustrate, Mr.
Lipman puts forward four arguments in support of his motion to
12 quash. See Mot. Quash, ECF No. 1-2. First, he argues that the
information sought is “wholly irrelevant” to Mr. Antoon’s claims
in the underlying litigation. Id. at 1. Second, he argues that
Mr. Antoon should seek the information through party discovery.
Id. Third and fourth, he argues that the information requested
is protected by the attorney-client privilege and the work
product doctrine. Id. at 2. In opposing the motion to transfer,
Mr. Lipman argues that his “primary” argument is that the
subpoena requests material that is protected by the attorney-
client privilege and the work product doctrine. Opp’n Transfer
8-12, ECF No. 5. He downplays his relevance arguments, arguing
that the Court need not evaluate relevance. Id. at 1.
The Court disagrees, looking no further than Mr. Lipman’s
own motion to quash. See Mot. Quash 10-14, ECF No. 1. Mr.
Lipman’s first and most robust argument is that the subpoena
seeks irrelevant documents and oral testimony. Id. He contends
that Mr. Antoon is using the subpoena to improperly harass him
as a partner and Chairman of Morgan Lewis, Securus’ outside
counsel. Id. at 13. Mr. Lipman further asserts that Mr. Antoon
is improperly seeking discovery in Antoon to “fish for
information and testimony . . . to use in the separate Mojica
lawsuit.” Id. at 12. Securus renews these same arguments in its
motion for a protective order in the underlying case,
highlighting their significance. See Mot. Protective Order 9-14,
13 ECF No. 65 (5:17-cv-5008). Furthermore, Mr. Lipman’s written
objections to the subpoena confirm that his primary argument is
relevance. See Objections, ECF No. 1-9. The first and lengthiest
objection to each of the six categories of subpoenaed documents
is that the requested information is “irrelevant and not
reasonably calculated to lead to the discovery of admissible
evidence.” Id. Only after Mr. Antoon moved to transfer did Mr.
Lipman reorder his arguments, re-characterizing their primacy.
Opp’n Transfer 1, ECF No. 5.
The centrality of the relevance assessment weighs in favor
of transfer because determining whether information is relevant
requires “nuanced legal analysis based on a full understanding
of the Underlying Action.” Fed. Home Loan Mortg. Co. v. Deloitte
& Touche, LLP, 309 F.R.D. 41, 43 (D.D.C. 2015). As other courts
in this Circuit have routinely recognized, “[r]uling on the
subpoenaed documents' relevance would . . . require[] the Court
to delve into the intricacies of the underlying dispute. Given
the close relationship between the motion to quash and the
merits of the complex underlying dispute, the issuing court
[would be] in a better position to rule on the motion.” FDIC v.
Galan-Alvarez, 2015 WL 5602342 at *3 (D.D.C. Sept. 4, 2015).
This Court has “limited exposure to and understanding of the
primary action.” In re Disposable Contact Lens Antitrust
Litigation, 2017 WL 3704822 at *7 (D.D.C. May 18, 2017)(internal
14 quotations and citations omitted). In contrast, Judge Brooks is
already “knee-deep in the nuances of the underlying litigation”;
he is clearly “in a much better position than this Court to
evaluate relevance.” Flynn, 216 F. Supp. 3d at 47.
Finally, Mr. Lipman’s argument that Mr. Antoon is using the
subpoena to “improperly harass” him as Chairman of Morgan Lewis
and “fish” for discovery to use in Mojica weighs in favor of
transfer. Mot. Quash 10-14, ECF No. 1. Judge Brooks—who has been
dealing with these same parties for four years—is familiar with
“both the issues and the parties in the underlying action[s],”
which “strongly counsels in favor of transferring [the] motion
to quash . . . .” Flynn, 216 F. Supp. 3d at 48. 3
IV. Conclusion
For the foregoing reasons, Mr. Antoon’s motion to transfer
shall be GRANTED, and this miscellaneous proceeding, including
the pending motion to quash, shall be TRANSFERRED to the Western
District of Arkansas. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge January 3, 2018
3 Pursuant to the suggestion in the relevant Advisory Committee Note, this
Court has consulted with Judge Brooks, and he has agreed to handle the motion to quash upon transfer. See Fed. R. Civ. P. 45(f) advisory committee's note (“Judges in compliance districts may find it helpful to consult with the judge in the issuing court presiding over the underlying case while addressing subpoena-related motions.”).