Commercial Litigation and Arbitration

Discovery Subpoenas — Transfer to Situs of Action

Courts are divided as to whether a dispute over a third party subpoena that has been served outside the district in which the case is being litigated must be resolved in the district where the discovery is to be taken (i.e., where the subpoena is served) or whether it may be transferred to the district possessing the underlying action. Cases going both ways are cited in District Judge Charles S. Haight, Jr.'s recent decision in Stanziale v. Pepper Hamilton LLP, 2007 U.S. Dist. LEXIS 11320 (S.D.N.Y. Feb. 9, 2007). Judge Haight concluded that he had the power to transfer the dispute -- even outside the MDL context, which is a significant factor in some of the decisions -- and he did so, noting that the subpoenaed third party was amenable to the transfer.

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