656 F.3d 829
9th Cir.2011Background
- SEC sued Edwards and others in Nevada federal court for securities violations; Edwards was ordered to pay about $55 million but did not comply.
- SEC learned Edwards wired $25,000 to Gewerter’s Nevada client trust account in May 2008.
- SEC served a January 12, 2010 subpoena on Bank of the West (California) for trust account records from 2008 onward.
- Because the subpoena was issued by a California court, Gewerter moved in Nevada to quash as overly broad and burdensome.
- Nevada district court denied Gewerter’s motion to quash without prejudice, citing lack of authority to quash a subpoena issued by another district.
- Bank of the West is a disinterested third party; Gewerter sought immediate appellate review of the Nevada ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ninth Circuit has jurisdiction to review | Gewerter lacks contempt route; SEC argues appeal is proper since third party is disinterested. | Gewerter contends no immediate appeal and district court lacked authority to quash. | Appeal allowed; issuing court jurisdiction controls review of quash. |
| Which court may quash or modify a subpoena under Rule 45 | Rule 45(c) requires the issuing court to decide quash/modification. | Nevada court should have authority or defer to California court for quash. | Issuing court, not the pending-action court, has authority to quash/modify. |
| Application of Rule 45(c) to a subpoena issued in another district | Rule 45(c) clearly designates the issuing court; Ninth Circuit should follow this. | Question whether cross-district subpoenas permit Nevada court review. | Nevada court correctly denied jurisdiction; issuing California court governs. |
Key Cases Cited
- United States v. Krane, 625 F.3d 568 (9th Cir. 2010) (discovery order appealability context)
- Wilkinson v. FBI, 922 F.2d 555 (9th Cir. 1991) (interlocutory appeal where contempt unavailable)
- United States v. Ryan, 402 U.S. 530 (1971) (contempt safeguard for third-party review)
- Perlman v. United States, 247 U.S. 7 (1918) (reasoning on third-party appealability)
- Church of Scientology of California v. United States, 506 U.S. 9 (1992) (discovery order against disinterested third party is appealable)
- In re Digital Equipment Corp., 949 F.2d 228 (8th Cir. 1991) (holding that issuing court controls subpoenas)
- In re Sealed Case, 141 F.3d 337 (D.C. Cir. 1998) (subpoenas are process of issuing court; no cross-court power implied)