Jacobs v. Advanced Dermatology & Skin Cancer Specialists PC
2:23-mc-00032
| D. Ariz. | Nov 27, 2023Background
- Dr. Randy Jacobs (relator) filed an FCA action in the Central District of California (the California Action) against Advanced Dermatology and others; Desert Dermatology was added, dismissed for lack of personal jurisdiction, then re-added in a later amended complaint.
- On April 24, 2023 Jacobs served a Rule 45 subpoena on Desert Dermatology in Arizona seeking documents about its relationship with Advanced Dermatology and billing/Mohs practices; Desert Dermatology objected and produced limited materials.
- Jacobs then filed a motion to compel in the District of Arizona; while that motion was pending he served Rule 34 requests in the California Action that are essentially identical to the Rule 45 subpoena requests.
- Desert Dermatology moved to dismiss in California and has asserted objections to the subpoena including relevance, overbreadth, privilege, undue burden, and that the subpoena amounts to improper jurisdictional discovery.
- The Arizona court found exceptional circumstances (overlap with discovery in the California Action, issuing court familiarity, risk of inconsistent rulings, privilege and jurisdictional-discovery issues) and transferred the motion to the Central District of California under Rule 45(f).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a Rule 45 subpoena be served on an entity that later becomes a party? | Rule 45 may be used against a person even if later a party; it was proper when issued. | Serving a subpoena on a party is improper or at least problematic once party status changes. | Rule 45 can be served on a party; here issuance was proper because Desert was a nonparty when served and the subpoena was not used to circumvent rules. |
| Was the Rule 45 subpoena an improper attempt to circumvent Rule 34 or other discovery rules? | No — subpoena issued before Desert’s party status and well before discovery cutoff; response time exceeded Rule 34 minimum; meet-and-confer occurred. | The subpoena attempted to bypass party-discovery rules and jurisdictional limits. | Court found no circumvention: timing and procedures justified using Rule 45. |
| Should the Arizona court decide the motion to compel or transfer it under Rule 45(f)? | Jacobs filed in Arizona (compliance court) and sought local resolution. | Desert urged transfer because issues overlap with the California Action and issuing court already ruled on related matters. | Transfer appropriate: exceptional circumstances (judicial economy, issuing court familiarity, risk of inconsistent rulings) weigh in favor of transfer to the Central District of California. |
| Would transfer unduly burden Desert Dermatology (nonparty concerns)? | Jacobs: transfer minimal burden; motion fully briefed. | Desert: local resolution protects nonparty from travel/costs. | Burden minimal because Desert is a party in the California Action (counsel admitted pro hac vice), discovery already pending, and Zoom hearings reduce burden. |
| Is the subpoena improper jurisdictional discovery? | Jacobs: not seeking improper jurisdictional discovery; relevant to merits and ties to defendants. | Desert: subpoena seeks jurisdictional discovery contrary to the California court’s earlier decision denying jurisdictional discovery. | The issuing court (California) is better positioned to resolve whether the subpoena constitutes improper jurisdictional discovery; transfer warranted. |
Key Cases Cited
- Marten v. Haire, 329 F.R.D. 256 (D. Mont. 2018) (courts recognize Rule 45 subpoenas may be served on parties)
- Mortg. Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2002) (service of Rule 45 subpoena before discovery close is appropriate)
- Moon Mountain Farms, LLC v. Rural Cmty. Ins. Co., 301 F.R.D. 426 (N.D. Cal. 2014) (issuing court familiarity supports transfer under Rule 45(f))
- In re Disposable Contact Lens Antitrust Litig., 306 F. Supp. 3d 372 (D.D.C. 2018) (issuing court’s supervision of substantial discovery favors transfer)
- Jud. Watch, Inc. v. Valle Del Sol, Inc., 307 F.R.D. 30 (D.D.C. 2014) (issuing court in best position to evaluate party conduct and related discovery disputes)