DOMINIE LANZA, UNITED STATES DISTRICT JUDGE

ORDER

DOMINIE LANZA, UNITED STATES DISTRICT JUDGE

This matter arises out of a proposed class action lawsuit that Plaintiff Larkin Community Hospital (“Larkin”) filed against Defendant Intuitive Surgical, Inc. (“Intuitive”) in the United States District Court for the Northern District of California. Pending before the Court is Intuitive's motion to compel a non-party, Alliance Healthcare Partners, LLC (“Alliance”), to comply with a subpoena or, in the alternative, to transfer the enforcement dispute to the Northern District of California. (Doc. 12.) For the following reasons, Intuitive's motion is granted to the extent it is a transfer request.

RELEVANT BACKGROUND

Intuitive is surgical robotics company that manufactures and markets technology for minimally invasive surgeries, including the “EndoWrist.” (Doc. 12 at 2.) Currently, Intuitive sets “use limits” for the EndoWrist of about ten uses. (Id. at 2-3.) According to Intuitive, modifying the EndoWrist to extend its use limits requires Food and Drug Administration (“FDA”) clearance pursuant to Section 510(k) of the Food, Drug and Cosmetic Act (“510(k) clearance”). (Id. at 1-2.) To enforce the use limits, Intuitive includes a memory chip (i.e., a “use counter”) in the EndoWrists “to disable the instruments when they reach their validated number of uses” and “enter[s] into service agreements with purchasers and lessees . . . that prohibit the customers from allowing unauthorized third parties to service . . . EndoWrists.” (Id. at 2-3.) In other words, the service agreements prevent “independent robot repair companies” (“IRRCs”) from extending the life of an EndoWrist by disabling its use counter. (Id.)

On May 20, 2021, Larkin filed a complaint against Intuitive in the Northern District of California, on behalf of itself and all others similarly situated, alleging various antitrust claims. (Larkin Cmty. Hosp. v. Intuitive Surgical, Inc., No. 21-CV-03825-VC (N.D. Cal.), Dkt. 1 ¶ 1.) In broad strokes, Larkin alleges that the EndoWrist use limits and the contractual provisions that prevent service by IRRCs violate federal antitrust laws. (Doc. 12 at 2-3.)

Larkin's lawsuit is one of several actions related to the EndoWrist use limits. Two other antitrust class actions on behalf of Intuitive customers are pending in the Northern District of California: Franciscan All. v. Intuitive Surgical, Inc., No. 21-cv-05198-VC (N.D. Cal.), and Kaleida Health v. Intuitive Surgical, Inc., No. 21-cv-05266-VC (N.D. Cal.). (See No. 21-cv-03825-VC, Dkt. 48 at 1-2.) On August 25, 2021, the litigation underlying the pending motion (No. 21-cv-03825-VC) was consolidated with Franciscan Alliance and KaleidaHealth. (Id. at 3-5.) There is also a pending antitrust action brought by one of Intuitive's purported competitors in the Northern District of California, Surgical Instrument Service Company, Inc. v. Intuitive Surgical, Inc., No. 3:21-cv-03496 (N.D. Cal.), which is related to the underlying litigation. (No. 3:21-cv-03496, Dkt. 19, 35.) Two other antitrust actions related to the EndoWrist use limits are pending in district courts in Florida: Restore Robotics LLC v. Intuitive Surgical, Inc., No. 5:19-cv-55-TKW-MJF, in the Northern District of Florida, and Rebotix Repair LLC v. Intuitive Surgical, Inc., No. 8:20-cv-02274-VMC-TGW, in the Middle District of Florida. (See No. 21-cv-03825-VC, Dkt. 98 at 7.)

The Restore litigation, No. 5:19-cv-55-TKW-MJF (N.D. Fla. 2022), is particularly relevant to the parties' arguments here. In that case, Restore, which is an IRRC that offers contract services in the surgical robotics aftermarket, alleges Intuitive's service agreements prevent Restore from repairing EndoWrists. (Doc. 12 at 3.) According to Intuitive, Restore originally contended that it “do[es] not need FDA clearance to extend EndoWrist use limits.” (Id. at 3-4.) However, “Intuitive learned that FDA representatives informed . . . Restore that they believe that 510(k) clearance is required . . . .” (Id.) Afterward, “Restore retained Alliance to assist it in obtaining 510(k) clearance from the FDA.” (Id. at 4.) “In February 2021, Alliance (acting on Restore's behalf) filed an application . . . with the FDA for 510(k) clearance of Restore's technology used to extend use limits for a particular EndoWrist by an additional ten uses.” (Id.) Based on these facts, as part of discovery in the Restore litigation, “Intuitive served a third-party subpoena on Alliance seeking documents and information related to Alliance's efforts before the FDA on behalf of Restore.” (Id.) In response, Alliance produced about 1,700 documents “dated between 2019 and April 1, 2021.” (Id.) The documents were covered by a protective order that, among other things, required they be used solely in the Restore litigation (and not for any other purpose). (Id.)

Restore is not a party to the underlying litigation here. However, according to Intuitive, Larkin supports its claims, in part, by alleging that “EndoWrists could be used for dozens-and in some cases over 100-procedures, if inspected and repaired as needed between surgeries.” (Id. at 3.) Intuitive also asserts that Restore is one of two IRRCs “that purport to have developed technology to circumvent EndoWrist use limits” and “is the only IRRC seeking 510(k) clearance[] and Alliance is prosecuting that application before the FDA on Restore's behalf.” (Doc. 14 at 1-2.) Thus, although neither Alliance nor Restore is a party to this litigation, Intuitive contends that documents from Alliance related to Alliance's continued efforts (on behalf of Restore) to obtain 510(k) clearance from the FDA for more uses per EndoWrist are relevant to (1) whether 510(k) clearance is in fact required to extend the use limits and (2) whether extending the use limits is safe (both at all and by what number of uses). (Doc. 12 at 7-8.)

On June 3, 2022, Intuitive served a subpoena on Alliance seeking documents similar to those Intuitive sought from Alliance in relation to the Restore litigation, but this time from 2019 to present. (Doc. 12-1 at 2, 15-18.) In other words, Intuitive seeks the responsive documents from the Restore litigation (which, under the relevant protective order, could not be used for this action) and similar documents created after the responsive documents from the Restore litigation (i.e., between April 1, 2021 and July 5, 2022). (Doc. 12 at 4-5.) On June 16, 2022, Alliance objected to the subpoena on a number of grounds, including undue burden and confidentiality. (Id. at 4.)

After the parties met and conferred, Alliance agreed to allow Intuitive to use the documents from the Restore litigation in this case. (Id.) Alliance also produced an email chain, dating from October 1, 2021 to June 30, 2022, with correspondence between itself and FDA representatives. (Id.) However, Intuitive contends this chain is incomplete because it omits certain attachments and does not include emails between April 1, 2021 and October 1, 2021. (Id. at 4-5.)

In its motion, Intuitive asks the Court either to compel Alliance to fully comply with the subpoena or to transfer the enforcement dispute to the issuing court in the Northern District of California. (Id. at 2.) The motion is now fully briefed (Docs. 10, 14, 15) and neither side requested oral argument.

DISCUSSION

I. Transfer

The Court first considers whether it should transfer this enforcement dispute to the Northern District of California.

A. Legal Standard

Rule 34(c) of the Federal Rules of Civil Procedure grants parties the ability to seek the production of relevant, non-privileged documents from non-parties through a subpoena issued in accordance with Rule 45 of the Federal Rules of Civil Procedure. Although Rule 45(a)(2) requires that such a subpoena issue from the court where the action is pending (i.e., the issuing court), Rule 45(d)(2)(B)(i) provides that motions to compel compliance with the subpoena must be heard by the district court encompassing the place where compliance is required, as defined in Rule 45(c) (i.e., the compliance court). See also Venus Med. Inc. v. Skin Cancer & Cosm. Dermatology Ctr. PC, 2016 WL 159952, *2 (D. Ariz. 2016). However, under Rule 45(f), “[w]hen the court where compliance 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.” In the latter circumstance, “the proponent of transfer bears the burden of showing that such circumstances are present.” Fed.R.Civ.P. 45, advisory committee notes to the 2013 amendments.

The Advisory Committee notes further explain the relevant considerations underlying the “exceptional circumstances” standard:

The prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior Position to resolve subpoena-related motions. In some circumstances, owever, transfer may be warranted in order to avoid disrupting the issuing court's management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.

B. The Parties' Arguments

Intuitive contends transfer to the issuing court in the Northern District of California “is warranted under the factors that courts typically consider when deciding whether to order transfer of an application to compel compliance with a third-party subpoena,” such as judicial efficiency and the risk of inconsistent rulings. (Doc. 12 at 10-11.) Specifically, Intuitive argues the issuing court is “uniquely situated to decide issues concerning the relevance of the information that Intuitive seeks, given its familiarity with the underlying action.” (Id. at 11.) Intuitive also contends that the issuing court “may resolve other discovery motions in this case,” “is already familiar with the factual circumstances of the underlying dispute,” and “is best positioned to,” among other things, “consider the discovery already obtained by Intuitive from the plaintiff hospitals to confirm that the information sought from Alliance is not duplicative,” “balance timely enforcement of the Subpoena, [and] ensure compliance with its own [discovery] schedule (or make appropriate modifications to that schedule) . . . .” (Id. at 11-12.) Intuitive contends transfer “would also avoid the risk of inconsistent rulings in different judicial districts,” particularly given that “Intuitive is in the process of serving a subpoena on Alliance's client, Restore, in the Northern District of Florida, seeking similar information for use in the underlying action.” (Id. at 12.) Last, Intuitive argues transfer “would not unduly burden Alliance” because “the Issuing Court holds most hearings by Zoom . . . .” (Id. at 12-13.)

In response, Alliance contends transfer would “impose significant burdens” on it “and other third parties based in the Phoenix area with similar issues in this case.” (Doc. 10 at 8. See also id. [“Intuitive has already served subpoenas on three such entities that are also based here and performed work for Restore Robotics. Those companies have all objected to the production of documents in the hospital class action.”].) In a related vein, Alliance contends “this Court is best suited to handle this dispute . . . [because it] already has jurisdiction of the four subpoenas seeking compliance in this district.” (Id.) Alliance continues: “‘[S]imilar issues have already been briefed and are ripe for review' here in this district in the instant matter.” (Id.) Finally, Alliance contends “[t]here is no risk of inconsistent rulings: the four third parties are all based in this district. On the other hand, there are no third parties disputing subpoenas in this case in the Northern District of California. In fact, there are no discovery disputes on that docket. Intuitive has also indicated that there are no other third parties disputing subpoenas.” (Id., internal citation omitted.)

In reply, Intuitive contends it “would not be difficult” for Alliance and the “three other third parties in the Phoenix area-all of which are represented by the same counsel as Alliance” “to find a single local counsel in the San Francisco Bay Area, where the Issuing Court sits.” (Doc. 14 at 8.) Intuitive also argues that “given that the briefing on this motion is complete, there would be little for local counsel in San Francisco to do, other than file pro hac vice papers for the admission of Alliance's national counsel.” (Id.)

C. Analysis

Because Alliance does not consent to Intuitive's transfer request, Intuitive “bears the burden of showing that [exceptional] circumstances are present.” Fed.R.Civ.P. 45(f), advisory committee notes to the 2013 amendments.

In determining whether transfer under Rule 45(f) is appropriate, courts “consider[] a number of factors relating to the underlying litigation including 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.” E4 Strategic Solutions, Inc. v. Pebble Ltd. P'ship, 2015 WL 12746706, *3 (C.D. Cal. 2015) (internal quotations omitted). Exceptional circumstances may exist “where ruling on the motion to compel would . . . risk disruption of the issuing court's management of the underlying litigation,” Mirza v. Yelp, Inc., 2021 WL 2939922, *3 (N.D. Cal. 2021), or “[w]hen the issuing court has already ruled on issues presented by a subpoena-related motion,” Moon Mountain Farms, LLC v. Rural Cmty. Ins. Co., 301 F.R.D. 426, 429 (N.D. Cal. 2014).

Exceptional circumstances warranting transfer exist here for several reasons. First, the underlying case has been pending since May 20, 2021 (No. 21-CV-03825, Dkt. 1) and the deadline for fact discovery is currently less than a month away, on November 10, 2022 (Id., Dkt. 88). Given this timeline, ruling on the motion to compel could disrupt the issuing court's case management. Mirza, 2021 WL 2939922 at *3. See also 3B Med., Inc. v. Resmed Corp., 2016 WL 6818953, *3 (S.D. Cal. 2016) (the fact that discovery was set to close in less than a month supported transfer); In re Subpoena to Kia Motors Am., Inc., 2014 WL 2118897, *1 (C.D. Cal. 2014) (concerns about the discovery deadline supported transfer to “the court with control over the discovery cut-off deadline”).

Second, the Court agrees with Intuitive that the issuing court is better situated to “take account of Alliance's interest in confidentiality.” (Doc. 12 at 10-12.) As background, Alliance's two primary arguments in opposition to the motion to compel are that (1) “conducting a second search, review, and production of documents” would subject Alliance to an undue burden; and (2) the subpoena requests confidential information that is not “essential to a judicial determination.” (Doc. 10 at 2-6.) In response to the second argument, Intuitive contends the issuing court has entered a protective order “clearly sufficient to protect Alliance's interest in confidentiality” because it “would permit Alliance to designate its documents as ‘Highly Confidential-Attorneys Eyes Only,' preventing Intuitive personnel from accessing those documents.” (Doc. 14 at 5.) This argument presents an issue upon which the issuing court has already ruled. In proceedings held on August 11, 2021, Judge Chhabria, who is presiding over the underlying litigation in the Northern District of California, emphasized concerns about the scope of the protective order. (See, e.g., No. 21-cv-03825-VC, Dkt. 45 at 16-17 [“[W]e ask the parties to follow the model protective order to the extent possible. I don't mind modeling a protective order on-off of what has been done in Florida if that makes it easier for you all. However, the one thing that I would mind is if the protective order in Florida allowed parties to file stuff under seal simply because it was designated confidential pursuant to a protective order.”].) Determining whether the protective order mitigates Alliance's confidentiality concerns involves determining the scope of that protective order, a task for which Judge Chhabria is better situated. See also In re Subpoena of S. Broward Hosp. Dist., 2022 WL 3136729, *2 (D. Mont. 2022) (the fact that the issuing court had already entered a protective order that “may address EBMS' concerns that the subpoena seeks personal health and confidential business information” indicated the issuing court was “best situated to address EBMS' motion to quash”); 3B Med., 2016 WL 6818953 at *3 (“The issues raised in the motion to compel relate to orders and discovery from the underlying Florida case where the court has already granted a protective order deeming the relevant exhibits ‘Highly Confidential - Attorneys' Eyes Only.' Those exhibits are the subject of the motion to compel. . . . [Thus,] ruling on the motion to compel raises the risk of ‘disrupting the issuing court's management of the underlying litigation.'”).

Third, and as noted by Intuitive, the issuing court is better situated “to consider the discovery already obtained by Intuitive from the plaintiff hospitals to confirm that the information sought from Alliance is not duplicative.” (Doc. 12 at 11.) Many of the parties' arguments related to burden (e.g., whether the requested information is available from parties to the litigation, see Doc. 10 at 4) involve information more readily available to the issuing court. See also Venus Med., 2016 WL 159952 at *3 (the fact that the issuing court “has knowledge as to whether Venus has already obtained the same discovery from other defendants, as alleged by Respondents” supported transfer); Moon Mountain Farms, 301 F.R.D. at 429 (“Additionally, the District of Arizona is in a much better position to determine which documents have already been produced . . . .”). This conclusion is supported by Alliance's supplemental brief, filed on October 24, 2022, which contends the documents sought by Intuitive have already been produced by Restore. (Doc. 15 at 1-2.)

Whether transfer is warranted due to the risk of inconsistent discovery rulings presents a closer question. Intuitive argues “[t]ransfer would also avoid the risk of inconsistent rulings in different judicial Districts.” (Doc. 12 at 12.) Alliance contends “[t]here is no risk of inconsistent rulings” because “Intuitive has already served subpoenas on three such entities that are also based [in Arizona] and performed work for Restore Robotics.” (Doc. 10 at 7-8. See also id. at 8 [“This Court already has jurisdiction of the four subpoenas seeking compliance in this district.”]; id. [“[T]here are no third parties disputing subpoenas in this case in the Northern District of California. In fact, there are no discovery disputes on that docket.”]; id. [“Intuitive has also indicated that there are no other third parties disputing subpoenas.”].) On the one hand, Alliance's contentions suggest the risk of inconsistent rulings is currently low. On the other hand, the complexity of the underlying litigation, which, as explained in more detail in the Relevant Background section, has been consolidated with two other actions in the Northern District of California, relates to a third, and intersects with two pending actions in the Florida, complicates the task of evaluating the risk of inconsistent rulings. Thus, although Alliance is correct that there are no discovery disputes currently pending before the issuing court, the Court is concerned that ruling on the merits of Intuitive's motion may further complicate already-complex litigation. This is supported by Intuitive's assertion that Intuitive “is in the process of serving a subpoena on Alliance's client, Restore, in the Northern District of Florida, seeking similar information for use in the underlying action.” (Doc. 12 at 12.) In any event, even assuming there is little risk of inconsistent rulings, other factors weigh strongly in favor of transfer: the deadline for fact discovery is less than a month away and the motion to compel implicates issues already ruled on by the issuing court.

Finally, the Court acknowledges that “[t]ransfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.” Fed.R.Civ.P. 45, advisory committee notes on the 2013 amendments. See also Moon Mountain Farms, 301 F.R.D. at 430 (“The Advisory Committee's notes to Rule 45 make clear that the primary focus in determining whether transfer is appropriate should be the burden on local nonparties.”). Here, several factors suggest that transfer would not be unduly burdensome to Alliance.

First, Intuitive indicates that hearings in the underlying litigation are generally held remotely. (Doc. 12 at 12-13.) The docket supports this assertion. (See, e.g., No. 21-CV-03825, Dkt. 37 [minute entry for proceedings held via Zoom]; Dkt. 102 [minute entry for proceedings held via Zoom].) Alliance's status as a non-party makes Zoom proceedings more likely, as well-when a motion to compel a non-party subpoena is transferred, the Advisory Committee notes encourage courts “to permit telecommunications methods to minimize the burden a transfer imposes on nonparties, if it is necessary for attorneys admitted in the court where the motion is made to appear in the court in which the action is pending.” Fed.R.Civ.P. 45, advisory committee notes to the 2013 amendments. See also 3B Med., 2016 WL 6818953 at *4 (transfer would not burden a nonparty where, among other things, the issuing court used telephonic hearings “whenever possible, particularly when counsel are located in different cities”).

Second, Alliance does not provide much evidence that transfer would subject it to significant burdens. Alliance's main argument is that transfer would require it (and possibly three other subpoenaed non-parties located in Arizona) to retain local counsel in the Northern District of California. (Doc. 10 at 7-8. See also id. [“Those companies have all objected to the production of documents in the hospital class action. It is quite possible that all three will ultimately litigate their disputes. If these disputes were transferred to the Northern District of California, all four subpoena recipients would be required under N.D. Ca. local rules to undertake the expense and inconvenience of securing local counsel in that district.”].) However, it is not clear that Alliance would, in fact, need to obtain local counsel upon transfer. Alliance's Georgia-based counsel filed a pro hac vice application at the outset of this dispute that was granted. Accordingly, under the local rules of this Court, counsel is now “permitted to appear and participate in [this] particular case.” LRCiv 83.1(b)(2). Meanwhile, under Rule 45(f), “if the attorney for a person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court.” This suggests that, upon transfer, Alliance's counsel will be permitted to appear on behalf of Alliance in the Northern District of California without the need for local counsel. See generally 1 Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 45, at 1394 (2022) (“Should the matter be transferred, an attorney authorized to practice in the ‘compliance' court is automatically admitted to appear in the court where the case is pending for purposes of the subpoena-related motion.”); Collins v. Benton, 2019 WL 5963709, *2 (D. Nev. 2019) (“Medport would not necessarily need to obtain local counsel as Rule 45(f) expressly provides that a subpoenaed party does not need to obtain out-of-state counsel in the event of a transfer.”).

Alternatively, even if Rule 45(f)'s attorney-admission provision were inapplicable here, the burden would remain modest. For one thing, the Court is hesitant to assume that the other three disputes will also require judicial intervention. And even if so, the fact that all four companies are represented by the same out-of-state counsel suggests that transfer would not create any additional burden. In any event, the burden analysis contemplates burden to Alliance (i.e., the nonparty subject to the challenged subpoena), not the potential burden to other nonparties who are neither part of this dispute nor before the Court. See Fed. R. Civ. P. 45, advisory committee notes to the 2013 amendments (noting that courts should weigh the “interests of the nonparty served with the subpoena in obtaining local resolution of the motion” with the interests served by transfer) (emphasis added).

Other than the potential cost of retaining counsel in the Northern District of California, it is not clear that transfer would subject Alliance to any burden. As noted by Intuitive, “given that the briefing on this motion is complete, there would be little for local counsel in San Francisco to do.” (Doc. 14 at 8.) See also Moon Mountain Farms, 301 F.R.D. at 430 (“[I]n situations like this, ‘the cost of litigation alone does not amount to an unfair prejudice.' Nor is it clear that litigating this motion in the District of Arizona will cost very much at all. ‘Transferring a motion to the jurisdiction where the underlying litigation is pending that will require few, if any, modifications of the written submissions, [and therefore] does not rise to the level of unfair prejudice.'”) (citations omitted).

On balance, the relevant factors weigh in favor of transfer. Given the looming discovery deadline, the complexity of the underlying litigation, and the fact that Alliance's confidentiality concerns may rise or fall with the scope of the issuing court's protective order, the Court finds that exceptional circumstances exist warranting transfer of Intuitive's motion to the Northern District of California. Further, the Court finds that any costs to Alliance imposed by a transfer are outweighed by the importance of consistent management of the underlying litigation and judicial economy.

II. Motion To Compel

Because the Court grants Intuitive's request to transfer its motion to compel to the Northern District of California, it does not rule on the merits of that motion.

Accordingly, IT IS ORDERED that Intuitive's motion to compel (Doc. 12) is granted in part. The Court directs the Clerk to transfer this matter to the U.S. District Court for the Northern District of California.