Opinion
MDL Docket No. 1203, No. 04-mc-00403-SAC
March 24, 2004
MEMORANDUM AND ORDER
The case comes before the court on the motion of Michael L. Hodges to quash a subpoena to take his deposition that was issued by this court in connection with the multidistrict litigation currently assigned to the Honorable Harvey Bartle III of the United States District Court for the Eastern District of Pennsylvania. The deposition subpoena was served by AHP (American Home Products) Settlement Trust. This trust was created to administer the terms of a class action settlement agreement between AHP, the manufacturer of certain diet drugs, and those class members who used the diet drugs. Michael Hodges is a Kansas attorney who represents some class members who have claims before the AHP Settlement Trust. Judge Bartle retains exclusive jurisdiction over the settlement agreement being administered by AHP Settlement Trust.
Hodges seeks to quash the subpoena arguing that AHP Settlement Trust is unable to make the required showing to compel the deposition of opposing counsel. The Trust opposes Hodges' motion and asks the court either to transfer the motion to Judge Bartle or to deny the motion on the merits.
As suggested by Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure, the court issuing a subpoena is the only court with the authority to quash or modify the subpoena. In re Subpoenas Served on Wilmer, Cutler Pickering and Goodwin Proctor LLP, 255 F. Supp.2d 1, 2 (D.D.C. 2003); In re Disposable Contact Lens Antitrust Litigation, 1998 WL 219773, at *1 (D. Kan. Apr. 21, 1998) (Rushfelt, M.J.). At the same time, the court assigned multidistrict litigation "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." 28 U.S.C. § 1407(b). Consequently, Judge Bartle of the Eastern District of Pennsylvania has all the powers of a federal district judge in the District of Kansas for the purpose of conducting depositions in this multidistrict litigation, including the power to quash a deposition subpoena issued in the District of Kansas. See In re Subpoenas Served on Wilmer, Cutler Pickering and Goodwin Proctor LLP, 255 F. Supp.2d at 2; In re Disposable Contact Lens Antitrust Litigation, 1998 WL 219773, at *1; cf U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F. Supp.2d 270, 275-279 (D.D.C. 2002). There is no question that Judge Bartle is better informed and is in a better position to decide the issues raised in the motion to quash and request for a protective order. Thus, the court transfers the pending motion to quash to Judge Bartle.
IT IS THEREFORE ORDERED that Michael L. Hodges' Motion to Quash Subpoena, or in the alternative, Motion for Protective Order is transferred to the Honorable Harvey Bartle, III, United States District Judge for the Eastern District of Pennsylvania, to whom this multidistrict litigation has been assigned.