United States v. Supreme Court of New Mexico, 980 F. Supp. 2d 1334

The United States file a facial challenge to New Mexico Rule of Professional Conduct 16-308(E) as applied to federal prosecutors.
Rule 16-308(E) prohibits subpoenaing a lawyer unless a prosecutor reasonably believes the information is not privileged, essential to the investigation, and no other feasible alternative exists.
Plaintiff argues Rule 16-308(E) is preempted by federal law and that federal prosecutors have altered behavior in response, though no discipline has occurred.
Defendants move to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(7) for lack of jurisdiction and failure to join necessary and indispensable parties.
The court addresses standing, ripeness, and joinder, concluding standing is enough and the action is ripe, and the other attorneys are not necessary parties.
The motion to dismiss is denied; the court proceeds to evaluate the preemption question and related issues on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does plaintiff have standing to challenge Rule 16-308(E)?	Plaintiff asserts injury in fact from forced adherence to a potentially preempted rule.	Defendants contend no injury in fact until enforcement action occurs.	Plaintiff has standing.
Is the case ripe for adjudication on the preemption challenge?	Ripeness is met because the rule's effects create an immediate dilemma for prosecutors.	Ripeness requires a concrete dispute; may depend on future enforcement actions.	The matter is ripe for judicial review.
Are other attorneys who may be subpoenaed under Rule 16-308(E) indispensable parties under Rule 19?	Absent attorneys may be affected by the ruling and thus could be indispensable.	Absent attorneys are not necessary; relief can be given without joining them.	Other attorneys are not necessary or indispensable parties.
Is Rule 16-308(E) preempted as applied to federal prosecutors, making the suit justiciable and capable of redress?	Rule 16-308(E) conflicts with federal law and is preempted.	Rule 16-308(E) may stand; preemption is not demonstrated at this stage.	Court allows the preemption issue to proceed and denies dismissal.

United States v. Colorado Supreme Court, 87 F.3d 1161 (10th Cir. 1996) (standing for preemption challenges; injury in fact need not await discipline)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (S. Ct. 2007) (pleading standard requires more than mere allegations)
Ashcroft v. Iqbal, 556 U.S. 662 (S. Ct. 2009) (pleading must contain more than conclusory statements)
Defenders of Wildlife v. U.S. Fed., 504 U.S. 555 (S. Ct. 1992) (standing elements and redressability)
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (U.S. 1982) (constitutional standing prerequisites)
Verizon Wireless (VAW) LLC v. City of Rio Rancho, 476 F. Supp. 2d 1325 (D.N.M. 2007) (ripeness in preemption challenges)
Stern v. U.S. Dist. Court for Dist. of Mass., 214 F.3d 4 (1st Cir. 2000) (preemption-like challenges and hardship considerations)