United States District Court, D. Hawaii
IN RE WHOLE WOMAN'S HEALTH, et al. Plaintiffs,
KEN PAXTON, et al., Defendants.
ORDER GRANTING JANE DOE, M.D.'S MOTION TO QUASH
DEPOSITION SUBPOENA ISSUED BY DEFENDANTS PAXTON, ET
S.C. CHANG UNITED STATES MAGISTRATE JUDGE
Doe, M.D. (“Dr. Doe”), requests an order quashing
Ken Paxton's (“Paxton”) October 19, 2017
subpoena (“Subpoena”) commanding her to appear
for a deposition on October 26, 2017 on three grounds: 1) it
fails to comply with Federal Rule of Civil Procedure
(“FRCP”) 45; 2) it imposes an undue burden; and
3) it improperly seeks her unretained expert testimony. For
the reasons articulated below, the Court GRANTS the Motion
and HEREBY QUASHES the Subpoena.
issued the Supboena in connection with a case currently
pending in the U.S. District Court for the Western District
of Texas, Austin Division, Whole Woman's Health, et
al. v. Ken Paxton, et al., Civil No. 1:17-00690-LY. The
lawsuit, filed by multiple Texas Healthcare providers,
challenges the constitutionality of Texas Senate Bill 8
(“SB 8”), which was enacted during the 2017
legislative session. As related to the present Motion, SB 8
requires abortion providers to cause fetal demise prior to
performing a dilation and excavation. According to the
defendants in the lawsuit, administering digoxin is
“one of the three safe and effective methods to induce
fetal demise.” Response, Doc. No. 13 at 2.
History Related to the Subpoena
initially subpoenaed Dr. Doe on September 20, 2017,
commanding her to appear for a deposition on October 6, 2017.
Following service of the subpoena, Paxton and Dr. Doe,
through counsel, engaged in negotiations concerning the scope
of the deposition and terms necessary for Dr. Doe to
voluntarily appear for a deposition. The parties eventually
agreed to submit an unopposed motion for protective order.
However, during the exchange of the working draft, Paxton
removed provisions prohibiting disclosure of Dr. Doe's
identity. Unable to reach an agreement concerning the content
of the motion for protective order, negotiations terminated
and on October 19, 2017, Paxton issued the Subpoena.
October 23, 2017, Dr. Doe filed the present Motion.
reaching the merits of the dispute, the Court addresses
scheduling matters that appear to impact the disposition of
this Motion. In the underlying action, an order filed on
September 11, 2017 states that “the parties agreed
discovery would be completed and that the cause may be set
for bench trial beginning November 2, 2017.” Doc. No.
73 at 3. The Agreed Scheduling Order, filed on September 19,
2017, establishes deadlines for designations of deposition
testimony and witness lists, among others, and most have
expired. Doc. No. 83. At the hearing, Summer Lee,
counsel for Paxton, explained that the Special Master is
allowing the parties to designate deposition testimony during
trial. While it is still unclear whether further discovery is
permissible based on the orders and deadlines in the
underlying action, the Court has concerns that the
late-issued Subpoena could disrupt the underlying proceedings
and potentially violate agreed-upon deadlines. This alone
arguably provides a basis to quash the subpoena.
the deadlines in the underlying action do not preclude the
issuance of subpoenas and/or the taking of Dr. Doe's
deposition, the Court quashes the Subpoena because it fails
to allow a reasonable time to comply.
for the district where compliance is required must quash or
modify subpoenas that: “(i) fail to allow a
reasonable time to comply; (ii) require a person to comply
beyond the geographical limits specified in Rule 45(c); (iii)
require disclosure of privileged or other protected matter,
if no exception or waiver applies; or (iv) subject a person
to undue burden.” Fed.R.Civ.P. 45(d)(3)(A).
Time to Comply
argues that the Subpoena provided sufficient time to comply
because not only is six days sufficient, Paxton and Dr. Doe
had been negotiating mutually agreeable terms since September
20, 2017, when the first subpoena was served. Citing FRCP
30(b)(1), Paxton contends that a week to 10 days deposition
notice is sufficient when it does not involve the production
of documents. The case cited by Paxton, Reddy v. Precyse
Sols. LLC, No. 1:12-CV-02061- AWI-SA, 2015 WL 3407447,
at *3 (E.D. Cal. May 26, 2015), was an order granting the
defendant's FRCP 37 motion to compel the
plaintiff's deposition. Thus, the strictures of FRCP