In re Factor VIII or IX Concentrate Blood Products Litigation

174 F.R.D. 412, 39 Fed. R. Serv. 3d 28, 1997 U.S. Dist. LEXIS 12207
CourtDistrict Court, N.D. Illinois
DecidedAugust 12, 1997
DocketMDL-986. No. 93 C 7452
StatusPublished
Cited by3 cases

This text of 174 F.R.D. 412 (In re Factor VIII or IX Concentrate Blood Products Litigation) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Factor VIII or IX Concentrate Blood Products Litigation, 174 F.R.D. 412, 39 Fed. R. Serv. 3d 28, 1997 U.S. Dist. LEXIS 12207 (N.D. Ill. 1997).

Opinion

MEMORANDUM OPINION AND ORDER

GRADY, District Judge.

A discovery motion in this multidistrict litigation calls upon this court to interpret the italicized language in the concluding sentence of 28 U.S.C. § 1407(b):

The judge or judges to whom such actions are assigned, the members of the judicial panel on multidistrict litigation, and other circuit and district judges designated when needed by the panel 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.

Plaintiffs in the litigation are individuals suffering from hemophilia who have allegedly been infected with the HIV virus as a result of using contaminated blood products manufactured by the defendants.1 Plaintiffs have served a deposition subpoena duces tecum, issued out of the United States District Court for the District of Connecticut, on a company known as The Marketing Research Bureau, Inc. (“MRB”), calling for the records custodian of the company to produce and authenticate documents collected or prepared by MRB in the course of research it conducted concerning blood products. The subpoena is returnable at the office of MB in Orange, Connecticut.

MRB has refused to comply with the subpoena and plaintiffs have moved this court, as the transferee court in the multidistrict litigation, for an order compelling compliance.

MRB challenges the jurisdiction of this court to order compliance with the subpoena. It argues that under Rule 45(e) of the Federal Rules of Civil Procedure production can be compelled only by “an order of the court by which the subpoena was issued.” This is the language of the rule, but in a multidistrict case the language must be read in conjunction with the provision of § 1407(b) of Title 28 providing that the transferee judge “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.” (Emphasis added). Plaintiffs argue that, pursuant to § 1407(b), this court, as the transferee court, is able to exercise the powers of a district judge for the District of Connecticut for the purpose of enforcing the subpoena issued in that district. MRB opposes this interpretation of the statute and cites In re Uranium Antitrust Litig., 503 F.Supp. 33 (N.D.Ill.1980), for the proposition that the discovery dispute can be resolved only in the District of Connecticut. In the Uranium ease, Judge Marshall of this court, as transferee judge in the multidistrict litigation, suggested that non-party discovery motions that had been filed in two other districts be transferred to him for decision. The judges in the other districts ruled that they lacked authority to transfer the disputes, and Judge Marshall believed that the only option § 1407(b) gave him in the circumstances was to travel to the other districts and resolve the disputes there:

The actions were transferred and assigned to us “for coordinated or consolidated pretrial proceedings.” Section 1407(b) provides that, “The judge ... to whom such 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.” (emphasis added). The preposition “in,” we must assume, was advisedly used. Thus, the statute clearly authorizes us as transferee judge to journey to another district to hear a discovery dispute in that district, but we may lack the authority to exercise the judicial power of a judge of the other district from our present forum, i.e., reach out, assert jurisdiction, and compel the non-party disputants to the out-of-district [414]*414discovery controversy to appear initially in this district.

Id. at 35. Judge Marshall concluded that he would “go to other districts to hear and decide motions to compel discovery from non-parties”, and ordered the parties to arrange hearing dates and judicial accommodations for him in other districts in the event of any further such disputes. Id.

Judge Marshall interpreted the word “in” which appears in § 1407(b) to mean that the transferee judge had to be physically present in the district where the dispute arose in order to resolve the dispute. We are aware of no other case which has attached this meaning to the language of § 1407(b) or which has held that a transferee judge must travel to another district in order to act in the multidistrict litigation. On the other hand, there are cases that, without explicitly referring to the preposition “in,” have interpreted the language of § 1407(b) to mean that the transferee judge, sitting in the transferee district, can exercise the powers of a judge of any district. An example is In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086 (5th Cir.1980). Judge Singleton of the Southern District of Texas was the transferee judge. The deposition of a non-party, Fleischacker, was taken in the Southern District of New York, and “Judge Singleton, in Houston, presided over that deposition by means of a speaker-phone com nection.” Id. at 1089. The deponent refused to answer certain questions. Judge Singleton ordered him to answer and then held him in contempt when he refused. The witness appealed to the Fifth Circuit on the theory that Judge Singleton’s order was an order entered by a judge of the Southern District of Texas. The Fifth Circuit analyzed Judge Singleton’s powers under § 1407(b) and found that he had acted appropriately in presiding over the New York deposition:

Under section 1407(b), the judge to whom a multidistrict case is 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.” It was this provision that enabled Judge Singleton to preside over Fleisehacker’s deposition in New York. In ordering Fleischacker to respond and in holding him in contempt, Judge Singleton was exercising the powers of a district judge of the District Court for the Southern District of New York.

Id. at 1090-91. The court went on to rule that Judge Singleton was incorrect, however, in regarding his orders as orders of the district court for the Southern District of Texas. Instead, they were' orders of the United States District Court for the Southern District of New York and were thus appealable only to the Court of Appeals for the Second Circuit. The Fifth Circuit, therefore, dismissed the appeal by the New York deponent for lack of jurisdiction. Id. at 1091.

Meanwhile, the deponent had also appealed to the Second Circuit. It turned out to be a good idea, because that court agreed with the Fifth Circuit that Judge Singleton’s order was an order of a judge of the Southern District of New York:

Judge Singleton, exercising the power of a judge of the Southern District of New York, pursuant to 28 U.S.C. § 1407

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Bluebook (online)
174 F.R.D. 412, 39 Fed. R. Serv. 3d 28, 1997 U.S. Dist. LEXIS 12207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-factor-viii-or-ix-concentrate-blood-products-litigation-ilnd-1997.