FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff-Appellee,
HAROLD P. GEWERTER, No. 10-16384
Objector-Appellant, D.C. No.
v. 2:08-cv-00437-
LRH-RJJ
CMKM DIAMONDS, INC.; 1ST
GLOBAL STOCK TRANSFER LLC; OPINION
HELEN BAGLEY; SERGEY
RUMYANTSEV; BRIAN DVORAK,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
June 14, 2011—San Francisco, California
Filed August 26, 2011
Before: Mary M. Schroeder and Carlos T. Bea,
Circuit Judges, and Michael M. Anello, District Judge.*
Opinion by Judge Schroeder
*The Honorable Michael M. Anello, District Judge for the United States
District Court for the Southern District of California, sitting by designa-
tion.
16377
SEC v. GEWERTER 16379
COUNSEL
Karen J. Shimp, Washington, D.C., for plaintiff-appellee
Securities & Exchange Commission.
Harold P. Gewerter, Las Vegas, Nevada, pro se.
OPINION
SCHROEDER, Circuit Judge:
This is an appeal by Harold Gewerter, a Nevada attorney,
seeking review of the Nevada district court’s order denying
16380 SEC v. GEWERTER
his motion to quash a subpoena for bank records of his client
trust account. The district court concluded that it did not have
the authority to consider Gewerter’s motion since the sub-
poena was issued by another district court. We hold that we
have jurisdiction over this appeal in the circumstances of this
case, because the bank has no incentive to disobey the sub-
poena and force an otherwise appealable contempt order. We
affirm the district court, because it correctly interpreted the
provisions of Rule 45 of the Federal Rules of Civil Procedure
governing issuance and quashing of subpoenas.
I. Factual and Procedural Background
In April 2008, the Securities and Exchange Commission
(“SEC”) filed a civil action in the United States District Court
for the District of Nevada against several defendants, includ-
ing an individual named John Edwards, alleging that they had
violated federal securities laws. In June 2009, the Nevada dis-
trict court entered a final judgment in favor of the SEC and
ordered Edwards to pay nearly $55 million in disgorgement,
civil penalties, and prejudgment interest. Edwards did not
comply with the district court’s order.
In its efforts to collect the judgment against Edwards, the
SEC discovered that in May 2008, Edwards had wired
$25,000 to the client trust account of Harold P. Gewerter, Esq.
Ltd., Gewerter’s law firm, which had represented Edwards in
earlier, unrelated matters. The trust account was maintained in
Nevada at the Bank of the West.
On January 12, 2010, the SEC served a subpoena on Bank
of the West for all records related to Gewerter’s client trust
account, from January 1, 2008 to the date of the subpoena.
Because Bank of the West is headquartered in northern Cali-
fornia, the SEC had the United States District Court for the
Northern District of California issue the subpoena. Gewerter,
who lives and practices in Nevada, filed a motion to quash the
subpoena in the Nevada district court, arguing that the sub-
SEC v. GEWERTER 16381
poena was overly broad, oppressive, and unduly burdensome,
because the trust account records the subpoena sought
included records related to clients other than Edwards. The
Nevada district court denied Gewerter’s motion to quash
without prejudice, concluding that under Federal Rule of Civil
Procedure 45(c)(3) it had no authority to quash a subpoena
that was issued by a court in another district. Gewerter
appeals.
II. Appellate Jurisdiction
[1] The SEC argues that we lack jurisdiction to consider
Gewerter’s appeal. Generally, we may review a discovery
order only when the subpoenaed party has refused to comply
with the order and appeals the resulting contempt citation. See
United States v. Krane, 625 F.3d 568, 572 (9th Cir. 2010).
When a discovery order is directed at a disinterested third-
party, however, the order is appealable. This is because a dis-
interested third-party, like the bank in this case, would nor-
mally have no real stake in the outcome of the proceeding. It
therefore would not risk a contempt citation, which would
otherwise secure an opportunity for a party affected by the
subpoena to appeal. See United States v. Ryan, 402 U.S. 530,
533 (1971) (citing Perlman v. United States, 247 U.S. 7,
12-13 (1918)). See also Church of Scientology of California
v. United States, 506 U.S. 9, 18 n.11 (1992) (“[A] discovery
order directed at a disinterested third party is treated as an
immediately appealable final order because the third party
presumably lacks a sufficient stake in the proceeding to risk
contempt by refusing compliance.”).
[2] In this case, Bank of the West, the subpoenaed party,
is a disinterested third-party custodian of records. As a disin-
terested third-party, Bank of the West cannot be expected to
risk contempt in order to create an opportunity for Gewerter
to appeal. Gewerter therefore cannot rely on the contempt
process to obtain review of the district court’s order denying
his motion to quash. We have previously held that an interloc-
16382 SEC v. GEWERTER
utory appeal in a discovery matter is available when the con-
tempt process is unavailable. See Wilkinson v. FBI, 922 F.2d
555, 558 (9th Cir. 1991) (holding that an order denying a
post-judgment discovery motion is appealable, because a liti-
gant dissatisfied with such an order “cannot rely on the con-
tempt process to provide an opportunity for appeal”).
Accordingly, in order to prevent the SEC from obtaining
records relating to his trust account, Gewerter must be permit-
ted to seek immediate review of the district court’s order
denying his motion to quash. Otherwise he would be “power-
less to avert the mischief of the order.” See Ryan, 402 U.S. at
533.
III. The Merits of the Appeal
We now turn to whether the Nevada district court erred in
ruling it lacked authority to quash the subpoena issued by the
California district court. This is an issue of first impression
for this Court.
[3] Federal Rule of Civil Procedure 45(c)(3) governs when
a court may or must quash or modify a subpoena. It specifi-
cally refers to the “issuing court.” Prior to the 1991 amend-
ments, Rule 45(b) provided that “the court” may quash or
modify a subpoena. Fed. R. Civ. P. 45(b) (1990). It did not
specifically identify which court.
[4] Amendments, which became effective December 1,
1991, however clarified that a motion to quash or modify a
subpoena should be decided by “the court by which a sub-
poena was issued.” Fed. R. Civ. P. 45(c)(3)(A) (1992). The
1991 amendments also clarified that one court could issue a
subpoena while the underlying action was pending in another
court. Rule 45(a), as amended, required every subpoena to
“state the name of the court from which it issued; and state the
title of the action, the name of the court in which it is pending,
and its civil action number . . .” Fed. R. Civ. P. 45(a)(1)(A),
(B) (1992). The rule also provided for sanctions to be
SEC v. GEWERTER 16383
imposed by “[t]he court on behalf of which the subpoena was
issued.” Fed. R. Civ. P. 45(c)(1) (1992). Similarly, the author-
ity to hold a party in contempt rested in “the court from which
the subpoena was issued.” Fed. R. Civ. P. 45(e) (1992).
The current version of Rule 45 simplifies the language, and
even more clearly provides that a motion to quash or modify
a subpoena should be adjudicated by the court that issued the
subpoena, i.e., “the issuing court.” Federal Rules of Civil Pro-
cedure Rule 45(c) provides, in pertinent part:
(1) Avoiding Undue Burden or Expense; Sanctions.
A party or attorney responsible for issuing and serv-
ing a subpoena must take reasonable steps to avoid
imposing undue burden or expense on a person sub-
ject to the subpoena. The issuing court must enforce
this duty and impose an appropriate sanction—which
may include lost earnings and reasonable attorney’s
fees—on a party or attorney who fails to comply.
(2) Command to Produce Materials or Permit
Inspection.
(A) Appearance Not Required. . . .
(B) Objections. . . .
(i) At any time, on notice to the com-
manded person, the serving party may
move the issuing court for an order com-
pelling production or inspection. . . .
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the
issuing court must quash or modify a sub-
poena. . . .
16384 SEC v. GEWERTER
(B) When Permitted. To protect a person
subject to or affected by a subpoena, the
issuing court may, on motion, quash or
modify the subpoena. . . .
Fed. R. Civ. P. 45(c) (2011). Rule 45 also gives the issuing
court contempt power. See Fed. R. Civ. P. 45(e) (“The issuing
court may hold in contempt a person who, having been
served, fails without adequate excuse to obey the subpoena.”).
[5] On the basis of the clear language of Rule 45, we must
hold that the court that issued the subpoena, and not the court
where the underlying action is pending, can entertain a motion
to quash or modify a subpoena. Our holding is consistent with
the decisions of two other Circuits that have decided this
issue. See In re Digital Equip. Corp., 949 F.2d 228 (8th Cir.
1991) (holding that the South Dakota district court, where the
underlying action was pending, did not have jurisdiction to
rule on the objections to a subpoena issued by the Oregon dis-
trict court); In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir.
1998) (noting that “[s]ubpoenas are process of the issuing
court, . . . and nothing in the Rules even hints that any other
court may be given the power to quash or enforce them” (cita-
tions omitted)).
[6] We now join the Eighth and the D.C. Circuits and hold
that the issuing court, and not the court where the underlying
action is pending, has the authority to consider motions to
quash or modify subpoenas under Rule 45 of the Federal
Rules of Civil Procedure. Because the District Court for the
Northern District of California issued the subpoena, the Dis-
trict Court for the District of Nevada did not err in deciding
that it lacked jurisdiction to consider Gewerter’s motion to
quash. We therefore affirm the district court’s denial without
prejudice of Gewerter’s motion.
AFFIRMED.