United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 1998 Decided April 1, 1998
Printed April 14, 1998
No. 98-5062
In re: Sealed Case
On Petition for Writ of Mandamus Directed to the United
States District Court for the District of Columbia
(No. 98ms00042)
Herbert J. Miller, Jr., argued the cause and filed the
Petition for Writ of Mandamus
Robert S. Bennett argued the cause and filed the response.
Before: Williams, Henderson and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring Opinion filed by Circuit Judge Henderson.
Williams, Circuit Judge: Respondent, defendant in a civil
case pending in the United States District Court for the
Eastern District of Arkansas, served a subpoena duces tecum
on petitioner, a law firm, demanding production of documents
and testimony at a deposition in Washington, D.C. That
subpoena, in conformance with Federal Rule of Civil Proce-
dure 45(a)(2), issued from the United States District Court
for the District of Columbia. When petitioner objected to the
subpoena, respondent filed a motion to compel in district
court here, and petitioner responded with a motion to quash
the subpoena, also in district court here. Further, suggesting
that the trial court in Arkansas was more familiar with the
issues presented, respondent moved the district court here to
transfer the motions to the Eastern District of Arkansas.
Petitioner objected, but the trial court granted the transfer
motion. Petitioner thereupon sought review of the transfer
order via this mandamus petition.
Finding that the district court lacked authority to transfer
the motions under the Federal Rules of Civil Procedure, we
vacate the order.
I.
Mandamus will issue only upon a showing that the petition-
er's right is "clear and indisputable," Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988), and that
"no other adequate means to attain the relief" exist, Allied
Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). We
leave to part II the analysis of petitioner's right and here
determine only the threshold issue of the adequacy of other
means of relief.
A conceivable alternative would have been for petitioner to
proceed by direct appeal. In all likelihood, of course, the only
consequence of finding that this was a viable alternative
would be a need to relabel the mandamus action an appeal,
but it turns out that appeal is not available.
Ordinarily a discovery order is not considered final and
hence may not be immediately appealed under 28 U.S.C.
s 1291. A party seeking interlocutory review must instead
disobey the order and be cited for contempt. He may then
appeal the contempt order, which is considered final, and
argue that the discovery order was flawed. See Church of
Scientology of California v. United States, 506 U.S. 9, 18 n.11
(1992) (citing United States v. Ryan, 402 U.S. 530, 532
(1971)); In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1997).
Under the so-called Perlman doctrine, however, discovery
orders addressed to disinterested nonparties are immediately
appealable. See Church of Scientology, 506 U.S. at 18 n.11
(citing Perlman v. United States, 247 U.S. 7 (1918)); In re
Sealed Case, 655 F.2d 1298, 1300-01 (D.C. Cir. 1981) ("Sealed
Case I").
Perlman appears inapplicable to these facts, however. It
reflected concern that where the subject of the discovery
order (characteristically the custodian of documents) and the
holder of a privilege are different, the custodian might yield
up the documents rather than face the hazards of contempt,
and would thereby destroy the privilege. See Sealed Case I,
655 F.2d at 1300-01. Here, however, petitioner is asserting
its own interests in work product and in not being subject to
what it claims is burdensome and abusive discovery, plus the
privilege of its client (which it is normally duty-bound to
assert, see Republic Gear Co. v. Borg-Warner Corp., 381
F.2d 551, 556 (2d Cir. 1967); Model Rules of Professional
Conduct Rule 1.6 (1995)).1 Thus it has the requisite incen-
tives (as well as the clear ability) to risk contempt and
thereby force review into the usual channel. Accordingly,
direct appeal is unavailable as an alternative avenue for
relief.2
Respondent suggests that petitioner may file a motion in
Arkansas requesting that the matter be retransferred. This
strikes us as plainly inadequate. Petitioner rests its objection
to the transfer order precisely on the theory that the Rules of
Civil Procedure protect it from having to litigate in or travel
to any forum other than that which issued the subpoena, i.e.,
the district court for the District of Columbia. Sending it to
the federal court in Arkansas to press that claim obviously
denies it, in a way that cannot be remedied on appeal.
__________
1 In some cases the attorney will indicate an intention to
comply with the subpoena, and on those facts this circuit regards
Perlman as controlling. See, e.g., In re Sealed Case, 754 F.2d 395,
399 (D.C. Cir. 1985). Of course that makes appeal available for the
client, not, as here, the attorney.
2 Additionally, the "discovery" order from which petitioner
seeks relief directs the transfer of a motion, not the production of
documents; it is thus somewhat difficult even to fit into Perlman's
analytic framework.
This circuit has frequently exercised its mandamus jurisdic-
tion to vacate transfer orders, especially where the transfer
was beyond the district court's power, as petitioner alleges
here. See, e.g., Ukiah Adventist Hosp. v. FTC, 981 F.2d 543,
548 (D.C. Cir. 1992); In re Briscoe, 976 F.2d 1425, 1427 (D.C.
Cir. 1992); In re Scott, 709 F.2d 717, 719 (D.C. Cir. 1983).
Respondent tries to distinguish these cases as involving trans-
fers of an entire civil action, as opposed to a motion. The
distinction may bear on the district court's power to make the
transfer, but we do not see how it undermines the case for
mandamus relief. Petitioner is not a party to the underlying
litigation. From its perspective, and indeed from ours as
well, the controversy between it and the respondent consists
solely of the discovery dispute. Thus, in the absence of any
explanation by respondent of his conclusory argument against
application of the principle allowing mandamus for review of a
transfer order, we find it available as it would be to any
transfer of any case, large or (as here) small.
The writ is available not only to "confin[e] 'an inferior court
to a lawful exercise of its prescribed jurisdiction,' " In re
Halkin, 598 F.2d 176, 198 (D.C. Cir. 1979) (quoting Roche v.
Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)), but also "to
prevent abuses of a district court's authority to transfer a
case." Ukiah, 981 F.2d at 548 (quoting In re Chatman-Bey,
718 F.2d 484, 486 (D.C. Cir. 1983). Mandamus vacating the
transfer order and keeping the matter in this circuit would,
moreover, be "in aid of" our jurisdiction, thus fitting neatly
within the language of the All Writs Act, 28 U.S.C. s 1651(a).
Satisfied that the nature of the alleged error is such as to
permit correction by mandamus, we now turn to the merits.
II.
The district court rested its conclusion largely on the
Advisory Committee's Note to the 1970 amendments to Rule
26(c), but the place to start, whatever the Note's ultimate
relevance, is the text of Rule 45. That text offers no authori-
zation to transfer a motion to quash and seems at least
implicitly to forbid it. The rule permits, and in some circum-
stances requires, "the issuing court" to quash or modify a
subpoena. See Fed. R. Civ. P. 45(c)(3)(A). It allows enforce-
ment of a subpoena following objections only "pursuant to an
order of the court by which the subpoena was issued." Fed.
R. Civ. P. 45(c)(2)(B). It provides that failure to obey a
subpoena may be deemed contempt "of the court from which
the subpoena issued." Fed. R. Civ. P. 45(e).3 All of this
language suggests that only the issuing court has the power
to act on its subpoenas. See, e.g., Kearney v. Jandernoa, 172
F.R.D. 381, 383 n.4 (N.D. Ill. 1997); Byrnes v. Jetnet Corp.,
111 F.R.D. 68, 69 (M.D. N.C. 1986). Subpoenas are process
of the issuing court, see In re Certain Complaints Under
Investigation, 783 F.2d 1488, 1494-95 (11th Cir. 1986), and
nothing in the Rules even hints that any other court may be
given the power to quash or enforce them. See Productos
Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 227-29 (D.P.R.
1992) (quoting Advisory Committee Notes on 1991 amend-
ments).
There are other textual difficulties with transfer of motions
to quash. Rule 45(c)(3)(A)(ii) directs the issuing court to
quash or modify a subpoena that requires a nonparty to
travel more than 100 miles from the place where the nonparty
"resides, is employed or regularly transacts business in per-
son." This restriction is obviously hard to square with a
principle that allows the issuing court to transfer the motion
to quash to another district--in this case, the parties tell us, a
district 892 miles away. Perhaps more significant, not only
would a transferee court lack statutory authority to quash or
enforce another court's subpoena, it would often lack personal
jurisdiction over the nonparty. The principle that courts
lacking jurisdiction over litigants cannot adjudicate their
rights is elementary, and cases have noted the problem this
__________
3 In subsection (c)(1), Rule 45 assigns some enforcement duty
to the court "on behalf of which the subpoena was issued." Howev-
er, this clearly refers to the issuing court; the rule uses the "on
behalf of" locution because it is discussing the duties of a party or
attorney responsible for issuing a subpoena. When the rule dis-
cusses the role of attorneys (as opposed to court clerks) in issuing
subpoenas, it refers to the attorneys as issuing the subpoena "on
behalf of" the court. See Fed. R. Civ. P. 45(a)(3).
creates for the prospect of transferring nonparty discovery
disputes. See Byrnes, 111 F.R.D. at 70 & nn.1 & 2; cf. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (noting
requirement of personal jurisdiction in alternative forum for
dismissal under the forum non conveniens doctrine); 28
U.S.C. s 1404(a) (allowing transfer to any other district
"where [the action] might have been brought").
More generally, the rules governing subpoenas and nonpar-
ty discovery have a clearly territorial focus. Applications for
orders compelling disclosure from nonparties must be made
to the court in the district where the discovery is to be taken;
failure to comply with such an order is a contempt of that
court. Fed. R. Civ. P. 37(a)(1); 37(b). Subpoenas for attend-
ance at a trial must issue from the court for the district in
which the trial is held; for attendance at a deposition, from
the court for the district in which the deposition is to be
taken. Fed. R. Civ. P. 45(a)(2). (Rule 34(c) explicitly makes
the subpoena process of Rule 45 the route to compelling
production of documents from nonparties.) It may well be
true, as respondent suggests, that the trial court will be
better able to handle discovery disputes. But Congress in
the Rules has clearly been ready to sacrifice some efficiency
in return for territorial protection for nonparties. Cf. Lexe-
con Inc. v. Milberg Weiss Bershad Hynes & Lerach, 118 S.Ct.
956 at 964 (1998) (acknowledging that broader district court
authority to transfer cases might be desirable but observing
that "the proper venue for resolving that issue remains the
floor of Congress").
What of Rule 26(c), springboard for the Advisory Commit-
tee Note on which the district court relied? That rule
authorizes the issuance of protective orders by "the court in
which the action is pending or alternatively, on matters
relating to a deposition, the court in the district where the
deposition is to be taken." It says nothing of transfer. An
Advisory Committee Note to the 1970 amendments states
that "[t]he court in the district where the deposition is being
taken may, and frequently will, remit the deponent or party
to the court where the action is pending."
We can assume that if Rule 45 were ambiguous, one might
look to a clear Advisory Committee Note to resolve that
ambiguity--maybe even an Advisory Committee Note to a
completely different rule, and maybe even a Note written 21
years before the 1991 amendment added subdivision 45(c) to
"clarify and enlarge the protections" afforded witnesses. Ad-
visory Committee Note to Federal Rule of Civil Procedure 45.
But cf. Libretti v. United States, 516 U.S. 29, 41 (1995)
(rejecting use of Advisory Committee Note on one rule to
elucidate meaning of another, and pointing to different dates
of rule and Note).
But before tackling all the ifs and stretches in that assump-
tion, it is useful first to address the text of the Note. It
refers to the possibility that "[t]he court in the district where
the deposition is being taken may, and frequently will, remit
the deponent or party to the court where the action is
pending." Respondent's argument takes "remit the deponent
or party" to mean "transfer the motion." But that is not the
phrase's meaning unless the Advisory Committee used En-
glish incorrectly, or at least eccentrically. "Remit" can in-
deed mean "to submit or refer (something) for consideration,
judgment, decision or action...." Webster's Third New
International Dictionary 1920 (1981). That usage would make
sense if the motion were the object of "remit." But it isn't.
The object of "remit" is an active person or entity, "the
deponent or party." Thus the relevant usage supplied by the
dictionary is "to refer (a person) for information or help (as to
a book or person)." Id.
The Advisory Committee Note is thus more naturally read
to suggest that the court for the district where the deposition
is to be taken may stay its action on the motion, permit the
deponent to make a motion for a protective order in the court
where the trial is to take place, and then defer to the trial
court's decision. See Kearney, 172 F.R.D. at 383. This
reading cures the jurisdictional problems; a nonparty that
moves for a protective order in the court of the underlying
action thereby submits to that court's jurisdiction.
Such a reading might seem to raise a new question: does
it allow the nonparty witness territorial convenience with
respect to motions to quash but not with respect to motions
for a protective order? They are not obviously so different;
in fact there is broad overlap in the grounds for granting the
two motions. Compare Fed. R. Civ. P. 26(c)(1)-(4) with Fed.
R. Civ. P. 45(c)(3)(A). As it turns out, the differential treat-
ment is only apparent. The operation of the subpoena rules
in fact grants nonparty witnesses the privilege of choosing to
litigate in their home districts regardless of how relief is
sought.
In the end what affords the nonparty deponent this terri-
torial protection is that the rules vest power to compel
discovery from a nonparty, and to impose contempt sanctions
for non-compliance, in the subpoena-issuing court. Fed. R.
Civ. P. 37(a)(1); Fed. R. Civ. P. 45(e). Rule 26(c) permits
that court to stay its proceedings on a nonparty deponent's
motion for a protective order pending action by the trial
court, and to defer to the trial court's resolution of that
motion. The rules may well allow similar abstention on a
motion to quash, followed by deference to the trial court's
decision on a motion for a protective order; this was the
technique used in Kearney.4 But if the nonparty deponent
fails to take the bait and move for a protective order in the
trial court, the issuing court must make the decision whether
discovery may be had, and its scope, since it is the only court
with the power to order enforcement.
Other courts have recently adopted this reading of the
Advisory Committee Note. See, e.g., Orthopedic Bone Screw
Prods., 79 F.3d at 48 (reading the Note's use of "remit" as
referring simply to power in court that issued subpoena to
stay motion by nonparty witness for protective order and
defer to decision of the district court where discovery pro-
ceedings in the underlying action were pending under 28
__________
4 Kearney noted explicitly that the nonparty could not make a
motion to quash in the trial court; such a motion "must be filed and
decided in the court from which the subpoena issued." 172 F.R.D.
at 383 n.4
U.S.C. s 1407); Cent. States, Southeast & Southwest Areas
Pension Fund v. Quickie Transport Co., 174 F.R.D. 50, 51 n.1
(E.D. Pa. 1997); Kearney, 172 F.R.D. at 383. It appears also
to have been the understanding of courts and commentators
nearer the time of the 1970 Advisory Note. See Socialist
Workers Party v. Att'y Gen., 73 F.R.D. 699, 701 (D. Md. 1977)
(quoting 1976 Moore's Federal Practice).
As this reading fits so easily with the text of the rules, it
seems more compelling than respondent's proposed finding of
a transfer power that is bereft of linguistic support in the
rules. See United States v. Carey, 120 F.3d 509, 512 (4th Cir.
1997) ("But the Advisory Committee Note is not the law; the
rule is. Accordingly, if the Advisory Committee Note can be
read in two ways, we must read it, if we consult it at all, in a
manner that makes it consistent with the language of the rule
itself.").
The district court's reliance on the Advisory Committee
Note to Rule 26(c) is not, to be sure, unique. In dicta other
courts have suggested that the Note implies the existence of a
transfer power for all discovery disputes involving nonparties,
including motions to quash subpoenas. See, e.g., In re Digi-
tal Equipment Corp., 949 F.2d 228, 231 (8th Cir. 1991);
Petersen v. Douglas County Bank & Trust Co., 940 F.2d
1389, 1390 (10th Cir. 1991). But "if the rule and the note
conflict, the rule must govern." Carey, 120 F.3d at 512.
In short, the idea that a district court may transfer a
motion to quash a subpoena rests on a misreading of a non-
authoritative source that relates to a different rule. The
Rules of Civil Procedure themselves do not provide any basis
for such authority, and district courts have no inherent pow-
ers to transfer. See Hicks v. Duckworth, 856 F.2d 934, 936
(7th Cir. 1988); cf. Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 118 S.Ct. at 961-64. Because the district
court here exceeded its authority, mandamus will issue to
vacate the transfer order.
So ordered.
Karen LeCraft Henderson, Circuit Judge, concurring:
I agree with the majority that the district court's decision
to transfer the cross-motions to quash and to compel compli-
ance with the subpoena is reviewable on petition for manda-
mus. See Hicks v. Duckworth, 856 F.2d 934, 935 (7th Cir.
1988) ("The use of mandamus (28 U.S.C. s 1651(a)) to correct
an erroneous transfer out of circuit has been approved. It is
difficult to see how such an error could be corrected other-
wise."). I also agree that the district court erred in transfer-
ring the motions to the Eastern District of Arkansas. I stop
short, however, of deciding, as does the majority, that a
district court lacks authority to order a transfer. Assuming
such authority exists, it should be reserved for the extraordi-
nary, complex case in which the transferee court is plainly
better situated to resolve the discovery dispute. This is not
that case. The respondent has made no showing that the
reasons cited for quashing the subpoena--that it is overbroad
and covers information that is privileged, not relevant to the
underlying lawsuit and sought "for improper purposes"--
cannot be readily assessed by the district court here as such
arguments routinely are. See, e.g., Linder v. Department of
Defense, 133 F.3d 17, 24 (D.C. Cir. 1998); Food Lion, Inc. v.
United Food & Commercial Workers Int'l Union, 103 F.3d
1007, 1013-14 (D.C. Cir. 1997). In any event, I believe the
court abused its discretion in attempting to transfer the
motions here without inquiring into the personal jurisdiction
of the transferee court over the petitioner, a sine qua non for
deciding the discovery motions. See In re Sealed Case, 832
F.2d 1268, 1270 (D.C. Cir. 1987) (reversing district court
order compelling production of companies' records where
Independent Counsel failed to make "the requisite showing"
that district court "has personal jurisdiction over each of the
companies whose records it seeks"); but cf. EEOC v. Nation-
al Children's Center, 98 F.3d 1406, 1410-11 (D.C. Cir. 1996)
(reversing as "abuse of discretion" district court decision to
seal portion of record because court did not "articulate its
reasons for electing to seal" and remanding "so that the court
can further explain its decision"). I therefore agree with the
majority that the district court's order should be vacated.