In Re: Asbestos Prod

United States Court of Appeals
Fifth Circuit
F I L E D
February 8, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-20835
m 06-20836
Summary Calendar
_______________
IN RE:
CLIENTS AND FORMER CLIENTS OF BARON & BUDD, P.C.
AND
OCCUPATIONAL MEDICAL RESOURCES, INC.,
Petitioners.
_________________________
Petitions for Writs of Mandamus to
the United States District Court
for the Southern District of Texas
m H-06-MC-306
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:
Petitioners are Occupational Medical Re-
sources, Inc. (“OMR”), and individuals whose
records are in OMR’s possession. Petitioners
seek a writ of mandamus ordering the district
court to rule on motions to intervene and mo-
tions to quash regarding a subpoena. We deny
the petition.
I.
The respondents are defendants in matters
pending in the Asbestos Multi-District Litiga-

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tion Court No. 875 (“MDL 875”) in the Unit-
ed States District Court for the Eastern Dis-
trict of Pennsylvania. Pursuant to Federal
Rule of Civil Procedure 45, respondents issued
a subpoena through the United States District
Court for the Southern District of Texas for
the production of documents and material
from OMR. The individuals moved to inter-
vene, and to quash the subpoena, in the Texas
court. OMR also moved to quash in that
court; its motion remains unresolved. The
Texas court entered the order that is now be-
ing challenged; it (1) denied the individuals’
motions and (2) directed that “[a]ll future
pleadings in this case be filed in MDL 875.”
Petitioners complain only about the second
part of the order.
II.
Petitioners rely largely on the text of rule
45(c)(3)(A), which states that “the court by
which a subpoena was issued shall quash or
modify the subpoena . . . .” To the same ef-
fect, rule 45(e) states that “[f]ailure by any
person without adequate excuse to obey a sub-
poena served upon that person may be deemed
a comtempt of the court from which the sub-
poena issued.” Petitioners claim that by the
text of these two provisions, only the Texas
court may enforce the subpoena and protect
parties from its terms.
Respondents answer that MDL proceedings
are to be treated differently. They rely primar-
ily on 28 U.S.C. § 1407(b), dealing with MDL
proceedings, which provides that “[t]he judge
to whom such [MDL] actions are assigned . . .
may exercise the powers of a district judge in
any district for the purpose of conducting pre-
trial depositions in such coordinated or con-
solidated pretrial proceedings.” The question
of law that we must decide to evaluate the
mandamus petition is whether the authority
conferred on the MDL court by § 1407(b)
extends beyond depositions so as to embrace
the instant subpoenas.
III.
Based on the overwhelming weight of auth-
ority, we answer in the affirmative. A per-
suasive analysis is set forth in a leading trea-
tise:
A motion to quash or modify a subpoena
is to be granted by “the court by which a
subpoena was issued.” If a subpoena is is-
sued by a district court other than the one
in which the case is pending . . ., the proper
court in which to file a motion to quash or
modify the subpoena is the issuing court,
not the court in which the action is pending
. . . .
. . .
Certain federal statutes create an excep-
tion to the rule that only the issuing court
may quash, modify, or enforce a subpoena.
For example, the multidistrict litigation
(MDL) statute . . . authorizes a judge as-
signed an MDL action to “exercise the
powers of a district judge in any district for
the purpose of conducting pretrial deposi-
tions in such coordinated or consolidated
pretrial proceedings.” [citing § 1407(b)]
This statute therefore authorizes the trans-
feree district court to exercise the authority
of a district judge in any district: The
transferee court may hear and decide mo-
tions to compel or motions to quash or
modify subpoenas directed to nonparties in
any district. Though the statutory language
refers to “pretrial depositions,” the statute
wisely has been interpreted to embrace doc-
ument production subpoenas as well.
9 JAMES W. MOORE ET AL., MOORE’S FED-
ERAL PRACTICE § 45.50[4], at 45-75 through

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45-77 (Matthew Bender 3d ed. 2006) (foot-
notes omitted). “In multidistrict litigation, the
court in charge of the consolidated proceed-
ings has the power to rule on a motion to
quash subpoenas.” 9A CHARLES A. WRIGHT&
ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2459, 2006 Supp., at 19 (West
1995). “The court in charge of consolidated
proceedings has power to rule on a motion to
quash subpoenas.” Id. at 19 n.14.2.
This conclusion is supported by the con-
vincing 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 &
Goodwin 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). Contra
Visx, Inc. v. Nidek Co., 208 F.R.D. 615, 616
(C.D. Cal. 2002).
The petition for writ of mandamus is DE-
NIED.

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