May District Court in District in Which Subpoena Issues Remit Motion to Quash to Court Presiding over Underlying Litigation? Circuit Split

Nat’l Benefit Programs, Inc. v. Express Scripts, Inc., 2011 U.S. Dist. LEXIS 137946 (E.D. Mo. Dec. 1, 2011):

There is a split in the Circuits regarding whether the court sitting in the district where the subpoena issued may properly exercise its discretion to "remit" a motion to quash for ruling by the court where the underlying litigation is pending. In re Subpoenas Served on Wilmer, Cutler & Pickering and Goodwin Proctor LLP, 255 F.Supp. 2d 1, 2 & n.2 (D.D.C. 2003) (citing cases). The Eighth Circuit has suggested that such a remittal from the court issuing the subpoenas is proper under Fed. R. Civ. P. 45(d). See In re Digital Equip. Corp., 949 F.2d 228, 231 (8th Cir. 1991). In her Order, however, Judge Deavers found that the Ohio District Court lacked authority to transfer the motion to quash to this Court, citing Prosonic Corp. v. Baker, No. 2:08-MC-007, 2008 WL 1766887, at *1 (S.D. Ohio April 7, 2008.) Doc. No. 86-1, at 6. Consistent with the law in the Ohio district, Judge Deavers did not remit the motion to quash to this district. But the Ohio District Court did stay its proceedings pending this Court's ruling on the motion for protective order, effectively remitting the matter for ruling by this Court. See Floorgraphics, Inc v. News American Mkting In-Store Servs., Inc., No. 07-27(PJS/RLE), 2007 WL 1544572, at *2 (D. Minn. May 23, 2007) (holding that to "remit" does not denote a literal transference of a motion, but rather, a deferral of a ruling until the Court responsible for the underlying action has an occasion to address the issue); Prosonic, 2008 WL 1766887, at *2 (noting, "many times the court from which the subpoena has issued will 'remit' the matter to the other court by directing the parties to engage in motion practice before that court.") (citations omitted).

Inasmuch as the documents at issue are in the custody and control of NBP, this Court has jurisdiction to rule on the motion for protective order. That authority, coupled with the Ohio District Court's stay of proceedings pending this Court's ruling on the motion for protective order, form the basis of this Court's authority to rule on the motion for protective order. In re Digital Equip. Corp., 949 F.2d at 231.

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