In re Braden
344 F. Supp. 3d 83
| D.C. Cir. | 2018Background
- Plaintiffs (APRI and others) sued Ohio officials in the Southern District of Ohio challenging the 2011 congressional map as an unconstitutional partisan gerrymander and sought expedited discovery ahead of a December 19, 2018 discovery deadline and a March 2019 trial date.
- Plaintiffs served subpoenas on several national Republican operatives and organizations (E. Mark Braden; Edward Gillespie; John Morgan; RNC; NRCC; Adam Kincaid) for documents and testimony bearing on alleged coordination between national and Ohio Republicans.
- Some subpoena recipients resisted: Braden moved to quash and separately moved to transfer his motions (he consented to transfer); other recipients produced some documents, asserted privileges (First Amendment, attorney-client, work product), or argued searches were adequate and certain materials irrelevant.
- Several subpoena-related motions were filed in the D.C. district where compliance was required instead of in the issuing court (S.D. Ohio), raising Rule 45(f) transfer questions.
- The D.D.C. court evaluated whether to transfer under Rule 45(f): it granted transfer as to Braden (consent) and granted transfer as to Gillespie, Morgan, RNC, NRCC, and Kincaid, finding exceptional circumstances (case posture, expedited discovery, relevance/privilege overlap, and judicial efficiency) and that transfer would not unduly burden respondents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether motions to quash/compel filed where compliance is required may be transferred when the subpoenaed person consents | Braden: consents and seeks transfer to issuing court | N/A (consent) | Transfer granted (Rule 45(f) consent) |
| Whether non-consensual transfer is appropriate under Rule 45(f) ("exceptional circumstances") | Plaintiffs: expedited discovery schedule, issuing court’s familiarity with core issues, risk of inconsistent rulings, and protective-order context favor transfer | Respondents: D.C. court is competent; transfer imposes briefing/travel burdens and risks losing D.C.-circuit First Amendment precedent | Transfer granted — exceptional circumstances found (posture, complexity, relevance/privilege overlap, judicial economy) |
| Whether relevance and privilege disputes (including First Amendment claims) should be decided in issuing court | Plaintiffs: issuing court best positioned to weigh relevance against privileges and apply its protective order; avoid inconsistent rulings | Respondents: D.C. court better versed in First Amendment doctrine; relevance arguments overstated | Court: issuing court (S.D. Ohio) is better positioned to assess relevance and privilege in context of underlying case; supports transfer |
| Whether transfer imposes undue burden on nonparty subpoena recipients | Plaintiffs: burden is minimal (telephonic proceedings, counsel admitted in issuing court), cost of litigation is not unusual | Respondents: travel, new briefing, different circuit law, practical inconvenience | Court: burdens do not outweigh exceptional circumstances; teleconferencing and counsel admission mitigate burden; transfer not unduly burdensome |
Key Cases Cited
- In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d 372 (D.D.C. 2017) (discusses Rule 45(f) transfer to issuing court in complex, time-sensitive MDL-like litigation)
- Wultz v. Bank of China, Ltd., 304 F.R.D. 38 (D.D.C. 2014) (transfer appropriate to protect issuing court’s management and avoid inconsistent results)
- In re UBS Fin. Servs., Inc. of Puerto Rico Sec. Litig., 113 F. Supp. 3d 286 (D.D.C. 2015) (consideration of issuing court’s familiarity with issues favors transfer)
- AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) (framework for balancing First Amendment burdens against the significance of disclosure)
- Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (protective orders can mitigate First Amendment chill and inform disclosure balancing)
- Lipman v. Antoon, 284 F. Supp. 3d 8 (D.D.C. 2018) (relevance centrality supports transfer because issuing court has deeper familiarity)
- Duck v. SEC, 317 F.R.D. 321 (D.D.C. 2016) (transfer appropriate where it avoids interference with a time-sensitive discovery schedule)