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In Re Actiq Sales and W.D. Pa. Marketing

November 9, 2011

IN RE ACTIQ SALES AND W.D. PA. MARKETING PRACTICES LITIGATION PLAINTIFF,


The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

Case pending in the United States District Court for the Eastern District of Pennsylvania, Case No. 07-cv-4492 (PBT)

MEMORANDUM OPINION AND ORDER

Pending before this court is the motion to quash and/or for a protective order (ECF No. 1) filed by plaintiff Pennsylvania Turnpike Commission ("Plaintiff"). The motion involves two subpoenas issued by defendant Cephalon, Inc. ("Defendant") to two nonparties. As more fully explained below, Plaintiff‟s motion to quash will be denied because Plaintiff lacks standing to seek to quash the subpoenas and the motion for a protective order will be transferred to the District Court for the Eastern District of Pennsylvania where the underlying litigation is pending.

1. Background

On September 16, 2011, Defendant issued two subpoenas from the Western District of Pennsylvania to Dr. Michael R. Cozza and Heritage Valley Rehabilitation Medicine and Dr. J. Fred Stoner. On September 23, 2011, Plaintiff filed a motion to quash and/or for a protective order. In its memorandum in support of the motion, Plaintiff argued that the subpoenas were overbroad and requested irrelevant evidence and that Pennsylvania law limited disclosure of medical information. (ECF No. 3.)

On October 12, 2011, Defendant filed a memorandum in opposition to the motion to quash and/or for a protective order. (ECF No. 8). In its memorandum, Defendant argued that the dispute should be transferred to the District Court for the Eastern District of Pennsylvania, where the underlying litigation has been pending for four years. Defendant argued that "Plaintiff‟s challenge to the [s]ubpoenas raises sophisticated regulatory and statutory issues, requires complex factual determinations of relevancy, and is based upon the interpretation of two Orders that issued from the Eastern District of Pennsylvania, that forum is best suited to resolve the instant motion." (ECF No. 8. at 7.) Defendant pointed out that Plaintiff filed a similar motion for a protective order before that district court. Defendant asserted that Plaintiff lacks standing to move for protective order or to quash and failed to meet its burden to quash the subpoenas or to obtain a protective order.

On October 21, 2011, Plaintiff filed a motion to file a reply along with a proposed reply brief. (ECF No. 12.) The court hereby grants that motion and will consider the proposed reply as if it had been filed. In its reply brief, Plaintiff, inter alia: (i) opposed Defendant‟s request to transfer the motion to quash; (ii) did not oppose Defendant‟s request to stay this action pending a decision from the Eastern District of Pennsylvania, but requested this court to prohibit Defendant from taking any further action to enforce the subpoenas while the stay is in place; and (iii) argued Plaintiff has standing to seek a protective order. (Id.)

On October 28, 2011, Defendant filed a motion for leave to file a surreply in opposition to Plaintiff‟s motion to quash and/or for a protective order. (ECF No. 14.). The court hereby grants that motion and will consider the proposed surreply as if it had been filed. In its surreply brief, Defendant argued that Plaintiff raised factual and legal arguments that were not raised in its original motion to quash and for a protective order. Regarding Plaintiff‟s request to impose a condition on the grant of a stay, Defendant argued that the proposed condition to prohibit Defendant from taking any further action to enforce the subpoenas is "unnecessary, improper, and jeopardizes" its ability to comply with the discovery orders entered by the District Court for the Eastern District of Pennsylvania. (Id. at 2.)

2. Discussion

Preliminarily, it should be noted that pursuant to Federal Rule of Civil Procedure 45(a)(2), this court is a proper court for deciding Plaintiff‟s motion to quash and for a protective order. See Highland Tank & Mfg. Co. v. PS Intern., Inc., 227 F.R.D. 374, 381-82 (W.D. Pa. 2005); Central States, Se. and Sw. Areas Pension Fund v. Quickie Transport Co., 714 F.R.D. 50, 51-2 (E.D. Pa. 1997).

a.)Plaintiff's standing to bring a motion to quash

First, this court must address whether Plaintiff has standing to bring a motion to quash the subpoenas at issue. Upon review, this court concludes it does not.

Federal Rule of Civil Procedure 45 establishes the rules for subpoenas served upon individuals and entities that are not parties to the underlying lawsuit. See also Fed. R. Civ. P. 34(c) ("A person not a party to the action may be compelled to produce documents . . . as provided in Rule 45.") When a nonparty receives a subpoena to which it objects, it has several options: file a motion to quash or modify the subpoena pursuant to Fed. R. Civ. P. 45(c)(3)(A), seek a protective order pursuant to Fed. ...


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