H-E-B, LP v. Olympia Tools International, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 H-E-B, LP, Case No.: 21-cv-0832-GPC-WVG 12 Plaintiff, ORDER REMANDING THE CASE 13 v. [ECF Nos. 15, 18] 14 OLYMPIA TOOLS INTERNATIONAL, INC., [15] Defendant. [16] 17 Before this Court is Plaintiff’s Objection to Magistrate Judge William V. Gallo’s 18 May 28, 2021 Order which denied Plaintiff’s Motion to Compel Compliance with 19 Subpoena (“Subpoena Motion”). ECF No. 15. Upon considering the moving documents 20 and the case record, the Court VACATES the Magistrate Judge’s Order and REMANDS 21 the case to the Magistrate Judge for further proceedings. 22 BACKGROUND 23 Plaintiff filed the Subpoena Motion on April 28, 2021, arising from a lawsuit in the 24 United States District Court for the Western District of Texas. Federal Rule of Civil 25 Procedure (“Rule”) 45(c)(2)(A) requires the place of compliance for a subpoena 26 commanding production of documents to be “within 100 miles of where the person [27] 1 resides, is employed, or regularly transacts business in person.” The Magistrate Judge 2 denied the Subpoena Motion for not meeting Rule 45(c)(2)(A)’s 100-mile requirement 3 and thus being “facially invalid.” According to the Magistrate Judge, commonly used 4 online map services confirm that there is at least “102 miles” of distance between 5 Defendant’s official corporate address and Plaintiff’s chosen place of compliance 6 (Perkins Coie’s San Diego office). See Order Den. Subpoena Mot. 1–2, ECF No. 13. 7 Plaintiff filed the Objection to the Magistrate Judge’s Order on June 2, 2021. ECF 8 No. 15. Plaintiff’s Objection raises two points. First, Plaintiff argues that instead of 9 adopting a “route of travel” approach to measuring distance, the Court should adopt a 10 “straight line” approach (or “as the crow flies”), in which case the distance would be 89 11 miles. Second, Plaintiff argues that even if a straight-line approach is not adopted, 12 different search queries result in the shortest road distance being less than 100 miles. 13 Upon the Court’s Order setting a briefing schedule, Defendant filed an Opposition, and 14 Plaintiff filed a Reply. ECF Nos. 17, 20. 15 STANDARD OF REVIEW 16 If a party objects to a non-dispositive pretrial ruling by a magistrate judge, the 17 court reviews or reconsiders the magistrate judge’s ruling under the “clearly erroneous or 18 contrary to law” standard. Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636 (b)(1)(A). 19 “The ‘clearly erroneous’ standard applies to factual findings and discretionary decisions 20 made in connection with non-dispositive pretrial discovery matters.” FDIC v. Fid. & 21 Deposit Co. of Maryland, 196 F.R.D. 375, 378 (S.D. Cal. 2000) (citations omitted); see 22 also McAdam v. State Nat. Ins. Co., 15 F. Supp. 3d 1009, 1013 (S.D. Cal. 2014) 23 (discussing how this standard is “significantly deferential, requiring ‘a definite and firm 24 conviction that a mistake has been committed.’”). The “contrary to law” standard 25 “permits independent review of purely legal determinations by the magistrate judge.” 26 FDIC, 196 F.R.D. at 378 (citations omitted). In other words, district courts may conduct [27] 1 de novo review on issues of law. See Med. Imaging Centers of Am., Inc. v. Lichtenstein, [2] 917 F. Supp. 717, 719 (S.D. Cal. 1996) (citation omitted). And for mixed questions of 3 fact and law, courts review de novo both the legal and factual findings of the magistrate 4 judge. See id. 5 DISCUSSION 6 Rule 45(c)(2)(A), the primary provision implicated in this dispute, states that a 7 subpoena may command: “production of documents, electronically stored information, or 8 tangible things at a place within 100 miles of where the person resides, is employed, or 9 regularly transacts business in person.” While the Magistrate Judge found that Plaintiff’s 10 Subpoena Motion was outside of the 100-mile requirement, implicit in this finding is the 11 Magistrate Judge’s interpretation of “within 100 miles” in Rule 45(c)(2)(A) since the 12 Magistrate Judge used online map services that all calculated driving distances.1 See 13 Order Den. Subpoena Mot. App. A, ECF No. 13. 14 The Magistrate Judge’s interpretation of Rule 45(c)(2)(A) is a legal issue subject to 15 de novo review. And under de novo review, the Court independently concludes that the 16 term “within 100 miles” means a straight-line distance, not driving distance or route of 17 travel distance. With no binding Ninth Circuit authority on the matter, the Court finds 18 the numerous district court cases adopting the straight-line approach—in contrast to a 19 dearth of cases adopting the route of travel approach—persuasive. See, e.g., Maine Cmty. 20 Health Options v. Walgreen Co., No. 18-MC-0009, 2018 WL 6696042 , at *3 (W.D. Wis. 21 Dec. 20, 2018) (collecting cases). Indeed, many of these cases have articulated the policy 22 benefits of the straight-line approach, which the Court appreciates and restates below: [24] 1 The Court affirms the Magistrate Judge’s driving distance calculation and rejects [25] Plaintiff’s argument on this issue, see Pl.’s Obj. 6, ECF No. 15. As discussed supra page 26 2, the Magistrate Judge’s findings of fact warrant significant deference and Plaintiff failed to demonstrate how the Magistrate Judge “clearly erred.” [27] 1 (1) it modestly expands the reach of civil trial subpoenas, thus promoting the favored policy of affording the trier an opportunity to hear witnesses in [2] person; (2) it avoids trivial disputes over the ordinary, usual, and shortest 3 routes of travel; and (3) it eliminates the anomaly that would otherwise exist of a plaintiff’s being able to sue a person within 100 air miles of the [4] courthouse, but not being able to present that defendant’s live testimony to 5 the trier when the defendant lives more than 100 travel miles away. 6 Id. (citing SCM Corp. v. Xerox Corp., 76 F.R.D. 214, 215 (D. Conn. 1977)). 7 One policy interest in favor of the route of travel approach is the protection of a 8 non-party witness from undue travel burdens. See generally Fed. R. Civ. P. 45 Advisory 9 Committee’s Notes to 2013 Amendment (“These changes resolve a conflict that arose . . . 10 about a court’s authority to compel a party or party officer to travel long distances to 11 testify at trial; such testimony may now be required only as specified in new Rule 12 45(c).”). Indeed, it appears that courts should read the term “within 100 miles” in Rule 13 45(c)(1)(A) to mean travel distance, i.e., the route of travel rather than a straight line. See [14] id. (“Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party 15 officer to travel more than 100 miles . . . .” (emphasis added)). 16 However, the instant dispute concerns Rule 45(c)(2)(A), not (c)(1)(A). In other 17 words, the concern is not over a person traveling “to attend a trial, hearing, or 18 deposition,” but over “production of documents, electronically stored information, or 19 tangible things at a place.” Fed. R. Civ. P. 45. See generally 9A Charles A. Wright & 20 Arthur R. Miller, Federal Practice & Procedure § 2451 (3d ed. 2021) (distinguishing two 21 types of subpoenas, a subpoena ad testificandum to compel the attendance of a witness, 22 and a subpoena duces tecum to compel the production of documents and things). And for 23 the production of documents and/or electronically stored information, the policy interest 24 of protection from undue travel burdens is inapplicable. No part of Defendant’s brief 25 evinces such burden either. Cf. Premier Election Sols., Inc. v. Systest Labs Inc., No. 26 CIVA 09CV01822WDMKMT, 2009 WL 3075597 , at *3 to *4 (D. Colo. Sept. 22, 2009) [27] 1 (adopting the straight-line approach for document production since there was no travel 2 burden). In fact, the advisory notes to Rule 45 explicitly flag this distinction and discuss 3 how the interpretation of Rule 45(c)(2)(A) must be in favor of facilitating discovery: 4 For other discovery, Rule 45(c)(2) directs that . . . production of documents, tangible things, and electronically stored information may be commanded to [5] occur at a place within 100 miles of where the person subject to the 6 subpoena resides, is employed, or regularly conducts business in person. Under the current rule, parties often agree that production, particularly of [7] electronically stored information, be transmitted be electronic means. Such 8 arrangements facilitate discovery, and nothing in these amendments limits the ability of parties to make such arrangements. [9] 10 Fed. R. Civ. P. 45 Advisory Committee’s Notes to 2013 Amendment (emphases added). 11 Therefore, while the policy interest in favor of the route of travel approach might 12 implicate a court’s understanding of “within 100 miles” in Rule 45(c)(1)(A), it has no 13 bearing in this Court’s understanding of “within 100 miles” in Rule 45(c)(2)(A). Cf. 14 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170– 15 73 (2012) (discussing how the “Presumption of Consistent Usage” canon is “defeasible 16 by context”).2 17 Accordingly, the Court VACATES the Magistrate Judge’s Order and REMANDS 18 the case so that the Subpoena Motion may be reevaluated beyond whether the request 19 complied with Rule 45(c)(2)(A)’s 100-mile distance requirement. While Plaintiff’s 20 Objection and Reply also request this Court to grant the original Subpoena Motion at the 21 same time, the Court declines to do so. Neither document provides briefing on the merits [23] 24 2 For the reasons discussed above, the Court does not find the need to interpret the 100mile requirement in Rule 45(c)(2)(A) to be consistent with the 100-mile requirement in [25] Rule 4(k). Of note, Rule 4(k) adopts a different language, “not more than 100 miles,” so 26 the canon of consistent usage would in fact undermine Plaintiff’s position. See Scalia & Garner, supra, at 170 (“[A] material variation in terms suggests a variation in meaning.”). [27] 1 of the subpoena, so the Court is ill-prepared to decide the matter on its own. The 2 Magistrate Judge is in the best position to decide instead, since the original merits 3 briefing was directed to him. 4 Plaintiff’s Reply brief discusses how the case schedule in the United States District 5 Court for the Western District of Texas calls for a “swift resolution” on the subpoena 6 request, thus requiring an action by this Court. The Court is unsympathetic to Plaintiff’s 7 plea for a number of reasons. To start, Plaintiff provides no explanation on why it cannot 8 request an extension or amendment to the case schedule in the Western District of Texas 9 given the circumstances behind the subpoena. Further, the Court considers Plaintiff to be 10 the one responsible for any tight deadline. For example, the Magistrate Judge has 11 appropriately observed that Plaintiff could have avoided these series of procedural 12 developments if it designated a more legally certain location for its place of 13 compliance—the counsel’s Los Angeles office instead of the San Diego office. See 14 Order Den. Subpoena Mot. 2 n.1, ECF No. 13. More importantly, Plaintiff did not follow 15 the local civil rule, which requires parties to contact Chambers to secure a hearing date 16 before filing any motion or objection to the magistrate judge’s decision. See CivLR 17 7.1.a, b. With no hearing date established, it was only much later that the Court, on its 18 own, set a briefing schedule to evaluate the parties’ positions and rule on the matter 19 accordingly. While this Court declines to summarily dismiss Plaintiff’s Objection for 20 procedural violations, cf. CivLR 41.1, 83.1.a, it will not reward such violations either by 21 rubber-stamping Plaintiff’s subpoena request. 22 CONCLUSION 23 For the foregoing reasons, the Court VACATES the Magistrate Judge’s May 28, 24 2021 Order, ECF No. 13, and REMANDS the case to the Magistrate Judge for further 25 proceedings. Relatedly, the Court VACATES the hearing on the matter, currently 26 scheduled for July 30, 2021. [27] 1 In reaching its decision, the Court did not rely on the documents Plaintiff lodged as 2 ||sealed. Therefore, the Court DENIES as moot Plaintiff's Motion for Leave to File 3 || Certain Documents Under Seal, ECF No. 18. Should Plaintiff consider the underlying 4 || documents as relevant for the Magistrate Judge to reach his decision upon remand, 5 || Plaintiff may file another seal motion and re-lodge the underlying documents. 6 IT IS SO ORDERED. [7] 8 Dated: July 26, 2021 9 Hon. athe Cee 10 United States District Judge [26] 27 , 28 21-cv-0832-GPC-WVG