In Re: Sealed Case

сounsel, expansion may objection be in in another forum. and such The Judi- dent indepen- appointment of another cial Act of the Councils and the rules of this circuit lieu counsel.”) added), (emphasis governing complaints judicial dent of misconduct 593(c)(2)(C) (“If Attorney ... § General judges, Attorney cover General. See reasonable 372(c)(1) there determines (allowing complaints 28 U.S.C. investigation. to bеlieve that further grounds “circuit, district, against bankruptcy warranted,” Special Division “shall judge, magistrate”); or a D.C. Cir. Jud. Mis- jurisdiction appropriate expand the 1(c) (“These apply rules ... conduct R. the matters independent counsel to include judges Appeals of Court for the appoint indepen- or shall another involved judges, bankrupt- D.C. Circuit and matters.”) investigate such dent counsel cy judges, magistrate judges of federal added), (emphasis and United States circuit.”); courts within the United States (8th Cir.1996) Tucker, (“ Tucker, Attorney 78 F.3d at 1318 ‘[A]n (“If, § preliminary after a 28 592 ... indepen- General’s determinations under the Attorney investigation, General deter- subject judicial dent counsel law are not investigation is mines that further warrant- Rep. ”) review.’ H.R. Conf. No. ed, Special Division then must either (1987), Cong., reprinted 100th 1st Sess. expand existing [independent сounsel’s] 2188). 1987 U.S.C.C.A.N. jurisdiction appoint independent another counsel.”) added). (emphasis Although I rec- IV. CONCLUSION may pur- ognize complainants’ challenge above, port questions, to raise these can find no For the reasons stated the com- good reason to resolve either of the issues plaint is dismissed failure to conform to 372(c)(1).1 posed proceeding. context of this § 28 U.S.C.

Finally, noting it is worth that аt least one complainants’ objections expansion

of to the jurisdiction obviously misguided.

of Com- Lewinsky

plainants argue that Monica is not subject independent appropriate

an of coun- 591(b), § investigation under 28 U.S.C.

sel among high-ranking is not

because she

government in the statute. officials listed However, § complainants ignore In re: SEALED CASE investigation persons which authorizes No. 98-5062. 592(b) Attorney §in if listed General investigation per- determines that of those Appeals, United States Court by Department sons of Justicе ‍‌‌​‌‌‌‌​‌​‌‌‌​​‌​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌‌​​​​​​‌‍District of Columbia Circuit. financial, personal, political “result Argued March 1998. 591(e)(1). conflict of interest.” 28 U.S.C. that subsection of the statute that the April Decided Attorney support cited in of her General April Printed expansion jurisdiction. request for complainants’

To the extent that ob

jection is that there was no reasonable basis

upon Attorney which General could investigation

determined that further Independent

these matters Counsel warranted, complainants pursue

was must 372(c)(10) (1994) Appeals days Court within 30 of the date of the 1. Pursuant to 28 U.S.C. complainants may R. transmitting D.C. Cir. Clerk’s letter the dismissal Order Jud. Misconduct petition file а for review the Judicial Council Opinion. See D.C. Cir. and this Jud. Misconduct Any peti- District of Columbia Circuit. for the 6(a). R. tion must be filed in the Office of the Clerk of

petitioner responded with a motion to also district court here. Further, suggesting that the trial court in Arkansas was more familiar with the issues presented, respondent moved the district court here to transfer motions Eastern of District Arkansas. Petitioner ob- jected, granted the trial court the trans- thereupon sought fer motion. Petitioner re- view of the transfer order via this mandamus petition.

Finding that the district court lacked au- thority to transfer the motions under the Procedure, Federal Rules of Civil we vacate the order.

I. only upon Mandamus will issue a showing petitioner’s right is “clear indisputable,” Aerospace Gulfstream 271, Corp. Mayacamas Corp., 485 U.S. 1133, 289, 108 99 ‍‌‌​‌‌‌‌​‌​‌‌‌​​‌​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌‌​​​​​​‌‍296 S.Ct. L.Ed.2d (1988), adequatе and that “no other means to exist, Corp. attain the relief’ Allied Chemical Inc., 33, 35, Daiflon, 449 U.S. 101 S.Ct. (1980). 66 L.Ed.2d 193 We leave Miller, Jr., argued the cause Herbert J. analysis right part petitioner’s II the of of the Petition for Writ Mandamus. and filed only the threshold issue of determine here argued the cause and Robert S. Bennett adequacy of other means of relief. response. filed the A conceivable alternative would have been petitioner proceed by appeal. direct WILLIAMS, HENDERSON and Before: likelihood, course, In all of conse- TATEL, Judges. Circuit alter- quence finding that this was a viable native be a need to relabel the manda- would Opinion Court filed Circuit appeal, out that mus action an but it turns Judge WILLIAMS. appeal is not available. Opinion Judge Concurring filed Circuit Ordinarily discovery order is not HENDERSON. may not be immе considered final and hence WILLIAMS, Judge: Circuit A diately appealed 28 under in pend- party seeking interlocutory review must Respondent, in a civil case defendant disobey stead the order and be cited ing in the United States District Court Arkansas, contempt. appeal contempt He then the Eastern District served order, final, argue petitioner, on a law which is considered duces tecum firm, disсovery was flawed. See demanding production of documents order deposition Washington, Scientology v. Unit testimony at a Church of California 447, States, 9, 11, 506 18 n. That in conformance with ed U.S. D.C. (1992) 45(a)(2), (citing 121 313 452 n. L.Ed.2d Federal Rule Civil Procedure is- Ryan, 402 U.S. States District Court United States sued from United 1580, 1581-82, (1971)); petition- for the District of Columbia. When S.Ct. (D.C.Cir. Kessler, objected subpoena, respondent In re 100 F.3d er to the filed 1997). here, Perlman doc cоmpel in Under the so-called a motion to district court ders, especially the transfer was be- trine, however, where discovery orders addressed immediately ap power, yond petitioner are court’s nonparties the district disinterested Scientology, pealable. Church Adventist alleges here. Ukiah (D.C.Cir. 11, 113 (citing FTC, n. 11 at 452 U.S. at 18 n. S.Ct. Hasp. v. 981 F.2d 1992); Briscoe, Perlman v. United In re (1918); Scott, 62 L.Ed. 950 (D.C.Cir.1992); (D.C.Cir.1981)) 1298, 1300-01 (D.C.Cir.1983). Respondent tries to distin- (“Sealed /”). Case guish involving transfers of an these cases as action, opposed motion. entire civil to a inapplicable to appears Perlman may bear on the district The distinction facts, It reflected concern these however. transfer, power to make the but we court’s subject of the that where the see how it undermines the case for do not (characteristically custodian of docu is not a mandamus relief. Petitioner ments) privilege of a and the holder underlying litigation. perspec- From its different, might yield up the the custodian well, tive, from ours as the con- and indeed rather than face the hazards documents troversy respondent it con- between and destroy contempt, thereby and would Thus, solely discovery dispute. sists of the I, F.2d at privilege. Sealed Case Sеe by respon- any explanation in the absence however, Here, petitioner as 1300-01. conclusory argument against ap- dent of his product in serting own interests work its plication principle allowing mandamus being subject to what it claims is in not order, for review of a transfer we find it discovery, plus the burdensome and abusive any be to transfer of available as would (which normally it is privilege of its client here) (as case, any large small. assert, Republic duty-bound see Gear Co. (2d 551, Corp., 381 F.2d Borg-Wamer only to “con- The writ is available Cir.1967); of Professional Con Model Rules ‘an inferior court to a lawful exercise of fin[e] (1995)).1 requi Thus it has the Rule 1.6 duct Halkin, jurisdiction’” prescribed its ability) to well as the clear site incentives (D.C.Cir.1979) (quoting contempt thereby force into risk review Ass’n, Evaporated Roche v. Milk 319 U.S. Accordingly, ap channel. direct the usual 87 L.Ed. 1185 63 S.Ct. alternative peal is unavailable as an avenue (1943)), prevent but also “to abuses of a for relief.2 court’s to transfer a ease.” petitioner may Respondent suggests that Ukiah, 981 F.2d at 548 In re Chat requesting file a motion Arkansas (D.C.Cir.1983)). manr-Bey, 718 F.2d This strikes us as retransferred. matter be vacating the transfer order and Mandamus its ob- plainly inadequate. Petitioner rests would, keеping the matter in this circuit precisely on the jection the transfer order moreover, jurisdiction, “in thus be aid of’ our theory Rules of Civil Procedure All fitting neatly language within the having litigate from or travel protect it 1651(a). Act, Satisfied Writs issued any forum other than that which alleged that the nature of the error is such as i.e., subpoena, court for the the district mandamus, now permit correction we Sending it to the fed- District of Columbia. turn to merits. press court in Arkansas to that claim eral it, obviously way in a that cannot be denies II. appeal. remedied on The district court rested its conclu This circuit has ‍‌‌​‌‌‌‌​‌​‌‌‌​​‌​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌‌​​​​​​‌‍exercised largely on the Committee’s jurisdiction to vacate transfer or- sion mandamus Additionally, "discovery” attorney order from which will indicate an In some cases the comply and on petitioner intеntion to relief the transfer of a seeks directs regards documents; motion, as con- those facts this circuit Perlman production it is See, trolling. e.g., somewhat difficult even to fit into Perlman's thus (D.C.Cir.1985) ("Sealed II"). Case Of analytic framework. client, appeal course that makes available for the not, here, attorney. litigants adjudicate amendments to Rule isdietion over cannot to the 1970 start, rights еlementary, their cases place to whatever the Note’s have relevance, problem pros- noted the of Rule 45. creates for the is the text ultimate pect transferring nonparty discovery dis- to transfer That text offers no authorization putes. Byrnes, See 111 F.R.D. at 70 & nn.l implic quash and seems at least a motion to 2; Piper Reyno, & Co. v. itly permits, it. The rule to forbid Aircraft 70 L.Ed.2d requires, “the some circumstances (1981) (noting requirement personal subpoena. modify court” to jurisdiction in alternative forum for dismissal 45(c)(3)(A). It allows enforce doctrine); under forum non conveniens subpoena following objections only ment of a 1404(a) (allowing 28 U.S.C. transfer to court which “pursuant to an order of the other district “where [the action] have was issued.” Fed.R.Civ.P. brought”). been 45(c)(2)(B). obey a provides that failure to cоntempt “of the subpoena may be deemed generally, governing More the rules sub- subpoena issued.” from which the poenas nonparty discovery clearly 45(e).3 language All of this Applications territorial focus. for orders issuing court has the suggests that compelling nonparties disclosure from must subpoenas. to act on its be made to the court the district where the Jandernoa, Kearnеy taken; comply is to failure to (N.D.Ill.1997); Byrnes Corp., n. 4 Jetnet contempt with such an order is a of that (M.D.N.C.1986). Subpoe- 37(b). 37(a)(1); Ill F.R.D. court. Fed.R.Civ.P. Sub- court, issuing see In re process poenas nas are for attendance at a trial must issue Complaints Investigation, Certain Under from for in the court the district which the (11th Cir.1986), held; and deposition, 1494-95 trial is at a attendance that nothing in the Rules even hints from the court for district in which the the mаy given quash deposition the to is to be taken. other court 45(a)(2). (Rule 34(c) Mistolin, explicitly makes the or enforce them. See Productos subpoena process Rule 45 227-29 the route to Mosquera, S.A. (D.P.R.1992) production Advisory compelling of documents from Committee amendments). true, nonparties.) respon- well be Notes on 1991 suggests, trial dent the court will be other textual difficulties with There are discovеry disputes. better able to handle quash. transfer of motions to Rule Congress clearly But in the Rules has been 45(c)(3)(A)(ii) issuing the court to directs ready efficiency to sacrifice some in return quash modify subpoena requires or a a protection nonparties. for territorial Cf. nonparty to travel more than 100 miles from Milberg Lexecon Inc. v. Weiss Berskad “resides, place nonparty the where the — Lerach, U.S.-, at-, Hynes & employed regularly or transacts business in (1998) obviously person.” This restriction is hard (acknowledging that broader district principle that the square to with a allows to transfer eases be desir- quash issuing court to transfer the motion to observing proper able but that “the venue for case, parties this to another district—in floor of resolving that issue remains the Con- us, Perhaps away. a 892 miles tell gress”). only a transferee significant, more not would statutory authority quash springboard court lack of Rule What Advisory enforce another court’s it would the Committee Note on which the personal jurisdiction the non- relied? That rule authorizes often lack over district court lacking jur- protective orders “the party. principle The that courts issuance (c)(1), assigns ing subpoena. a When the ralе discusses In subsection Rule 45 some en- clerks) duty attorneys opposed forcement to the court "on behalf of which role of to court in However, clearly subpoena was issued.” attorneys issuing subpoenas, it refers to the court; the rule uses the “on refers to the subpoena issuing the "on behalf of” the court. discussing of” locution because it is behalf 45(a)(3). See Fed.R.Civ.P. attorney responsiblе for issu- duties of a Advisory Note is thus pending action is or alter- The Committee court in which the naturally suggest relating deposition, a more read to that the court natively, on matters deposition deposition for the district where the is to be in district where the court motion, may stay on says nothing of transfer. taken its action to be taken.” It deponent permit to the 1970 to make a motion for a Advisory An Note Committee protective court in the the court where the trial “[t]he states amendments deposition being place, taken is to take then defer to the trial and district where the will, Kearney, deponent remit the court’s decision. See 172 F.R.D. at may, jurisdictional reading the action is 383. This cures the party to the court where problems; nonparty pro- a that moves for a pending.” underlying tеctive order the court that if Rule 45 were am- can assume We thereby juris- action submits to that court’s Advisory might look to a clear biguous, one diction. ambiguity— to resolve that Committee Note maybe Advisory Committee Note to even reading might a seem to raise a Such rule, maybe completely even different question; nonparty does it allow the new years written 21 before the 1991 respect witnеss territorial convenience with 45(c) subdivision to “clar- amendment added respect to motions but not with ify enlarge protections” afforded protective They for a motions order? Advisory Committee Note to witnesses. different; obviously so in fact there is 45. But cf. Federal Rule of Civil Procedure overlap granting grounds broad Libretti v. United Compare two motions. (1995) 133 L.Ed.2d 26(c)(l)-(4) 45(c)(3)(A). with Fed.R.Civ.P. As (rejecting Committee Note use of out, it turns the differential treatment is another, meaning of on one rule to elucidate apparent. operation The of rule and pointing to different dates grants nonparty rules fact witnesses the Note). privilege choosing litigate in their home tackling the ifs But all before regardless sought. districts of how relief is assumption, it stretches in that is useful first nonparty depo It refers to In what to address the text of the Note. the end affords the possibility protection court in nent this territorial is that the “[t]he deposition being may, power compel discovery is taken rules vest to from a where the will, deponent nonparty, impose contempt or and to sanctions remit the non-compliance, in pending.” subpoena-issuing where the action is to the court 37(a)(1); court. Respondent’s argument takes “remit the de- 45(e). 26(c) permits stay ponent party” to mean “transfer the mo- Rule that court to phrase’s meaning proceedings nonparty deponent’s on a mo tion.” But that is not the protective Advisory English pending used tion for a order action unless Committee court, incorrectly, eccentrically. at least “Re- the trial and to defer to the trial mit” can mean “to submit or refеr court’s resolution of that motion. The rules indeed consideration, (something) judgment, may de- well allow similar abstention ‍‌‌​‌‌‌‌​‌​‌‌‌​​‌​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌‌​​​​​​‌‍on a motion action____” quash, to cision or Webster’s Third New followed deference to the trial (1981). Dictionary protective 1920 court’s decision on a motion for a International That order; technique if the motion this was the in Kearn usage would make sense were used object еy.4 nonparty deponent But it isn’t. The But if the fails to of “remit.” protective object person is an active or enti- take the bait and move for a “remit” court, ty, deponent party.” “the Thus the rele- in the trial court must usage supplied by dictionary discovery is “to make the decision whether be vant (a had, help scope, person) refer for information or to and its since it is the power to рerson).” a book or Id. with the order enforcement. Kearney explicitly nonparty subpoena court from which the issued.” noted quash could not make a motion to court; in the trial at 4 383 n. "must be filed and decided such motion (7th Cir.1988); recently adopted Milberg cf. Lexecon Inc. v. courts Other — Lerach, Advisory Hynes Note. Committee Weiss Bershad & reading of - n , Prods., ----, Orthopedic Bone Screw at at (1998). “remit” (reаding the Note’s use of at 48 Because the district F.3d simply in court that referring authority, court here exceeded its mandamus stay by nonparty motion subpoena to issued will issue to vacate the transfer order. protective order and defer witness So ordered. where of the district court decision underlying action were proceedings HENDERSON, KAREN LeCRAFT 1407); Cent. pending under 28 U.S.C. Judge, concurring: Circuit & Areas Pen- Southeast Southwest agree majority I with the that the district Co., Quickie Transport sion Fund court’s decision to transfer the cross-motions (E.D.Pa.1997); Kearney, F.R.D. 51 n. compel compliance and to with the appears It also to have 172 F.R.D. at 383. petition for man- is reviewable on understanding of courts and com- been the Duckworth, Hicks damus. See the time of the 1970 Advi- mentators nearer (7th (“The Cir.1988) use of manda- Party sory Note. Socialist Workers See (28 1651(a)) mus correct an erro- Gen., (D.Md.1977) F.R.D. Att’y ap- out of neous transfer circuit has been Practice). Moore’s Federal (quoting 1976 proved. is difficult see how such reading easily fits so with the text As this otherwise.”). I error could be corrected also rules, compelling than it seems more agree in transferring that the district erred proposed finding of a transfer respondent’s the motions to the Eastern District of Arkan- linguistic support is power that bereft short, however, stop deciding, sas. Carey, rules. United States v. majority, does the that a district court lacks (4th Cir.1997) (“But the Advi- authority Assuming to order transfer. law; the rule sory Committee Note exists, such it should be reserved Accordingly, if the Committee is. extraordinary, complex for the ease which ways, can read in two we must read plainly the transferee court is better situated it, all, in a manner that if we consult it discovery dispute. to resolve the This language with the makes consistent respondent The has no ease. made itself.”). rule showing quashing reasons cited court’s reliance on the The district subpoena—that it is overbroad and cov- 26(c) Advisory Committee Note to Rule privileged, not rele- ers information that is not, sure, In unique. to be dicta other courts underlying sought vant to the lawsuit and implies suggested the Note readily improper purposes”—cannot “for a transfer for all discov existence of by the court here as such assessed district ery disputes involving nonparties, including See, arguments routinely e.g., are. Linder v. quash subpoenas. motions to Defense, Department 133 F.3d Equipment Corp., Digital 949 F.2d Lion, (D.C.Cir.1998); Food Inc. v. United (8th Cir.1991); Douglas County Petersen Union, Int’l Food & Commercial Workers (10th Co., 1389, 1390 Bank & Trust F.2d (D.C.Cir.1997). In 103 F.3d 1013-14 Cir.1991). But “if the rule the note event, any court abused its believe the conflict, Carey, govern.” the rule must attempting mo- discretion to transfer the 512. inquiring personal tions here without into the short, jurisdiction In that a of the transferee court over idea petitioner, qua deciding transfer a motion to rests sine non misreading on a of a nonauthoritative source motions. See (D.C.Cir.1987) 1268, ‍‌‌​‌‌‌‌​‌​‌‌‌​​‌​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌‌​​​​​​‌‍1270 (reversing that relates to a different rule. The Rulеs of compelling production of provide Procedure themselves do not district court order Civil Independent authority, companies’ records where basis for such and district powers requisite to make “the show courts have no inherent to transfer. Counsel failed Duckworth, personal jurisdic- ing” that district court “has See Hicks v. 856 F.2d companies rec- whose each of tion over seeks”); National EEOC v.

ords Center, 1410-11 Children’s

(D.C.Cir.1996) (reversing as “abuse discre- portion of to seal court decision

tion” district not “articulate its court did

record because remanding electing to seal” and

reasons for explain further the court can

“so that

decision”). major- agree I therefore court’s order should be

ity that the district

vacated.

LUTHERAN CHURCH-MISSOURI

SYNOD, Appellant

FEDERAL COMMUNICATIONS

COMMISSION, Appellee Conference of Branches

Missouri State al., NAACP, et Intervenors

No. 97-1116. Appeals,

United States Court of Circuit.

District of Columbia

Argued Jan. April

Decided

Case Details

Case Name: In Re: Sealed Case

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 14, 1998

Citation: 141 F.3d 337

Docket Number: 98-5062

Court Abbreviation: D.C. Cir.