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In re Whole Woman's Health

United States District Court, D. Hawaii

October 26, 2017

IN RE WHOLE WOMAN'S HEALTH, et al. Plaintiffs,
v.
KEN PAXTON, et al., Defendants.

          ORDER GRANTING JANE DOE, M.D.'S MOTION TO QUASH DEPOSITION SUBPOENA ISSUED BY DEFENDANTS PAXTON, ET AL.

          KEVIN S.C. CHANG UNITED STATES MAGISTRATE JUDGE

         Jane 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.

         BACKGROUND

         A. Underlying Litigation

         Paxton 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.

         B. History Related to the Subpoena

         Paxton 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.

         On October 23, 2017, Dr. Doe filed the present Motion.

         ANALYSIS

         Before 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.[1] 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.

         Even if 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.

         Courts 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.”[2] Fed.R.Civ.P. 45(d)(3)(A).

         A. Time to Comply

         Paxton 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.[3] Thus, the strictures of FRCP ...


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