UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ANDREW D. LIPMAN, ) ) Petitioner, ) ) v. ) ) PATRICK ANTOON, JR., ) Case No. 17-mc-1892 (EGS) ) Respondent. ) )

MEMORANDUM OPINION

I. Introduction

Pending before the Court are (1) petitioner Andrew Lipman’s

motion to quash a subpoena served on him by Patrick Antoon, Jr.,

plaintiff in an underlying action before the United States

District Court for the Western District of Arkansas (“Western

District of Arkansas”), Mot. Quash, ECF No. 1; and (2)Mr.

Antoon’s motion to transfer Mr. Lipman’s motion to quash to the

Western District of Arkansas, Mot. Transfer, ECF No. 2. Upon

consideration of the motion to quash and the motion to transfer,

the responses and replies, the applicable law, and the entire

record, Mr. Antoon’s motion to transfer shall be GRANTED, and

this miscellaneous proceeding, including the pending motion to

quash, shall be TRANSFERRED to the Western District of Arkansas.

1 II. Background

Mr. Antoon has been imprisoned in an Arkansas Department of

Corrections facility since March 2014. Opp’n Transfer 3, ECF No.

5. He sued defendant Securus Technologies, Inc. (“Securus”), a

company that provides Inmate Calling Services (“ICS”) to “more

than 3,400 public safety, law enforcement, and corrections

agencies and over 1.2 million inmates,” on behalf of similarly

situated persons who were “charged exorbitant rates and fees” to

use its ICS intrastate services. Id.

Mr. Antoon filed his complaint on January 9, 2017 in the

Western District of Arkansas. The case was assigned to District

Court Judge Timothy Brooks. See Antoon v. Securus Techs., Inc.,

Civ. No. 5:17-cv-5008 (W.D. Ark.). Following the resolution of

Securus’ motion to dismiss, Mr. Antoon’s surviving claims

against Securus are for unjust enrichment and for a violation of

the Arkansas Deceptive Trade Practices Act. Moffa Decl. ¶ 5, ECF

No. 2-1. Discovery has been on-going since April 2017 and is

scheduled to end in March 2018. See Case Management Order 2, ECF

No. 53 (5:17-cv-5008). Currently pending before Judge Brooks are

Securus’ motion for summary judgment, ECF No. 52 (5:17-cv-5008),

and its motion for a protective order regarding Mr. Lipman’s

nonparty subpoena, ECF No. 65 (5:17-cv-5008).

2 Mr. Antoon’s case is the fourth of four related ICS cases

before Judge Brooks. 1 Mojica v. Securus Techs. Inc. is one of

these related cases against Securus for its interstate ICS

practices. Civ. No. 14-5258 (W.D. Ark.) In both the interstate

and intrastate cases against Securus, the parties are

represented by the same counsel. See Mot. To Quash 13, ECF No.

1. The interstate ICS cases are scheduled for trial pending the

en banc review of Global Tel*Link v. FCC,

(D.C. Cir.

2017), which concerns the legality of the Federal Communications

Commission’s (“FCC”) interstate ICS regulations.

Mr. Lipman, the nonparty subpoena recipient, is a partner at

Morgan, Lewis & Bockius, the law firm representing Securus in

the underlying matter. Mot. Quash 3, ECF No. 1. He is also the

Chairman of the firm’s Advisory Board, a “leadership” position.

Mr. Lipman specializes in telecommunications work and was

involved in providing comments to the FCC regarding its ICS

rulemaking proceedings. Opp’n Quash 5, ECF No. 3. Mr. Lipman

submitted the comments on behalf of himself and “clients with an

interest in the provision of Inmate Calling Services.”

(citing FCC Docket WC 12-375).

On July 20, 2017, Mr. Antoon served Mr. Lipman with a

subpoena. Opp’n Transfer 4, ECF No. 5. The subpoena requests

1 See Chruby v. Global Tel*Link Corp., Civ. No. 15-5136 (W.D. Ark.); Mojica v. Securus Techs. Inc., Civ. No. 14-5258 (W.D. Ark.); In re Global Tel*Link Corp. ICS Litig., Civ. No. 14-5275 (W.D. Ark.).

3 documents and testimony in connection with the statements Mr.

Lipman made to the FCC in WC Docket No. 12-375: Rates for

Interstate Inmate Calling Services. The subpoena seeks six

categories of documents:

[1] [R]etainer agreement(s) and any documents confirming [Mr. Lipman’s] retention by any ICS provider(s) for services rendered . . . in connection with WC Docket No. 12-375: Rates for Interstate Inmate Calling Services; [2] Documents sufficient to identify the certain clients with an interest in the provision of inmate calling services (ICS) on whose behalf [Mr. Lipman] submitted [his February 20, 2015] letter to . . . [the FCC]; [3] Documents sufficient to identify the certain clients with an interest in the provision of inmate calling services (ICS) on whose behalf [Mr. Lipman] submitted [his October 15, 2015] letter to . . . [the FCC]; [4] Invoices, billing records, or other documents reflecting any invoices [Mr. Lipman] sent to Defendant for services rendered in connection with the following filings submitted by [Mr. Lipman] to the [FCC] in WC Docket No. 12-375: Rates for Interstate Inmate Calling Services: [February 20, 2015 Letter; September 28, 2015 Letter; October 15, 2015 Letter]; [5] Documents supporting the positions advanced in [Mr. Lipman’s February 20, 2015 letter to the FCC] . . . .; [6] Documents supporting the positions advanced in [Mr. Lipman’s April 8, 2015 letter to the FCC] . . . .

Subpoena 12-13, ECF No. 1-2.

Mr. Lipman subsequently moved this Court to quash the

subpoena, arguing that the subpoena seeks irrelevant information

and that it seeks information protected by the attorney-client

4 privilege and work product doctrine. Mot. Quash, ECF No. 1.

Thereafter, Mr. Antoon moved to transfer Mr. Lipman’s motion to

the Western District of Arkansas. See Mot. Transfer, ECF No. 2.

III. Analysis

Federal Rule of Civil Procedure 45(f) states in relevant

part:

When the court where compliance [with a subpoena] is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.

Fed. R. Civ. P. 45(f). According to the Advisory Committee Note

accompanying the 2013 amendments to Rule 45, the “prime concern”

in assessing whether “exceptional circumstances” exist to permit

transfer, “should be avoiding burdens on local nonparties

subject to subpoenas . . . .” Fed. R. Civ. P. 45(f) advisory

committee’s note. While “it should not be assumed that the

issuing court is in a superior position to resolve subpoena-

related motions,” “transfer may be warranted in order to avoid

disrupting the issuing court’s management of the underlying

litigation . . . if such interests outweigh the interests of the

nonparty served with the subpoena in obtaining local resolution

of the motion.” 2

To carry out this balancing test, courts in

2 “If the motion is transferred, judges are encouraged to permit

telecommunications methods to minimize the burden a transfer imposes on nonparties.” Fed. R. Civ. P. 45(f) advisory committee’s note.

5 this Circuit have considered “the complexity, procedural

posture, duration of pendency, and the nature of the issues

pending before, or already resolved by, the issuing court in the

underlying litigation.” Judicial Watch, Inc. v. Valle Del Sol,

Inc.,

(D.D.C. 2014). Courts have also

considered the goals of judicial economy and the avoidance of

inconsistent results. Wultz v. Bank of China, Ltd.,

(D.D.C. 2014). “[T]he proponent of transfer bears the

burden of showing that [exceptional] circumstances exist.” Fed.

R. Civ. P. 45(f) advisory committee’s note.

Mr. Antoon argues that this Court should transfer Mr.

Lipman’s motion to quash because his arguments are based on the

parties’ “substantive allegations and defenses,” with which the

issuing court is more familiar. Mot. Transfer 2, ECF No. 2. Mr.

Antoon further argues that transfer is warranted to avoid

issuing inconsistent rulings and disrupting the issuing court’s

management of the underlying action.

Finally, Mr. Antoon

argues that any burden on Mr. Lipman is negligible given that he

is represented by the same law firm that represents Securus in

the underlying action, and because Judge Brooks permits counsel

to argue discovery motions by telephone.

Mr. Lipman counters

that the motion to quash involves a “threshold application” of

the attorney client-privilege and the work product doctrine,

which are “legal question[s] separate from the underlying

6 litigation’s merits.” Opp’n Transfer 1-2, ECF No. 5. As a

nonparty subpoena respondent located in the District of Columbia

without a connection to the Western District of Arkansas, Mr.

Lipman argues that he will be burdened if he has to argue his

motion before the issuing court. Id. at 16-17.

The Court finds that the exceptional circumstances present

weigh in favor of transferring the motion to quash because (1)

the burden on Mr. Lipman is negligible and (2) consideration of

the Judicial Watch factors militates strongly in favor of

transfer. See

.

A. Transferring the motion to quash will not unduly burden Mr. Lipman In determining whether exceptional circumstances exist to

permit transfer, the Court’s “prime concern should be avoiding

burdens on local nonparties subject to subpoenas.” Fed. R. Civ.

P. 45(f) advisory committee’s note. Mr. Antoon argues that the

burden on Mr. Lipman is “negligible” because he is represented

by the same law firm that represents Securus and because the

issuing court will preside over Securus’ motion for a protective

order concerning this very subpoena. Mot. Transfer 10, ECF No.

2. Mr. Antoon also notes that “Judge Brooks’ case management

procedures permit counsel to appear for discovery . . . hearings

telephonically,” a method of participation specifically

contemplated by the Advisory Committee Notes to minimize the

7 burden that transfer could impose on nonparties.

Finally,

Mr. Antoon states that any deposition of Mr. Lipman would occur

in the District of Columbia, where it was originally noticed.

Id. at 10-11. Mr. Lipman argues that his burden is not

“negligible” because he is represented by different lawyers than

those that represent Securus. Opp’n Transfer 16, ECF No. 5. He

also asserts that because he and his attorney are based in the

District of Columbia, he “should not be forced to litigate in

the Western District of Arkansas—a district to which he has no

connection.” Id. at 17.

Mr. Lipman has not explained how he would be burdened by

litigating the motion in the Western District of Arkansas. See

Duck, 317 F.R.D. at 326 (transferring motion to compel in part

because defendant “fail[ed] to identify any burden that might

exist in arguing [its motion] before the [issuing district

court]”). Further, Mr. Lipman, Chairman of Morgan Lewis, is

represented by his own firm, the same “global” law firm that

represents Securus. Mot. Quash 13, ECF No. 1. In this

circumstance, “the general interest in protecting local

nonparties by requiring local resolution of subpoena-related

disputes is significantly reduced” because Mr. Lipman is

represented by a firm familiar with this litigation and the

issuing court. Judicial Watch,

. Moreover, Judge

Brooks’ case management procedures contemplate resolving

8 discovery disputes by telephone conference. See Case Management

Order 4, ECF No. 53 (5:17-cv-5008). Therefore, there is a

“strong possibility that [Mr. Lipman’s] counsel will not even

need to leave Washington, D.C. to litigate the motion.” Flynn,

216 F. Supp. 3d at 49.

B. Exceptional circumstances weigh in favor of transfer With regard to the Judicial Watch factors, only one of

those factors—the short pendency of the underlying suit—weigh

against transferring. The remaining factors support Mr. Antoon’s

argument. See

. The underlying litigation has

only been pending for about a year, which is much shorter than

other cases warranting transfer. See, e.g., Duck v. SEC,

, 324–25 (D.D.C. 2016) (over four years). Compare with

Flynn v. FCA US LLC,

(D.D.C. 2016)

(fifteen month pendency weighs against transfer). Furthermore,

because Antoon has been recently filed, discovery has “just

begun.” Opp’n Transfer 4, ECF No. 5.

However, its relatively early stage is not dispositive.

Transfer can be appropriate when it would “avoid interference

with a time-sensitive discovery schedule issued in the

underlying action.” Duck,

. In Duck, the mere

nine months left to complete discovery warranted transfer to

avoid disrupting case management.

. Here, discovery is

set to close in March 2018, two months from now. See Case

9 Management Order, ECF No. 53 (5:17-cv-5008). Therefore, there is

a “real risk” that not transferring the motion could interfere

with Judge Brooks’ “streamlined procedure for resolving

discovery disputes.” Flynn,

. Thus,

transferring the motion is necessary to avoid “disrupting the

issuing court's management of the underlying litigation.” Fed.

R. Civ. P. 45(f) advisory committee's note.

Consideration of the remaining Judicial Watch factors

weighs in favor of transfer.

. With respect to

the underlying case’s complexity, Mr. Antoon has only two

relatively straightforward claims. While his case may not be

complex on its own, the underlying suit is complicated because

it is one of four related cases challenging ICS practices. The

two interstate ICS cases have been pending before Judge Brooks

since 2014 and are ready for trial after extensive discovery

efforts. Moffa Decl. ¶ 12, ECF No. 2-1.

While Mr. Lipman argues that Antoon is distinct from the

three pending ICS cases, see Opp’n Transfer 8-12, ECF No. 5, his

arguments in his motion to quash indicate otherwise. See Mot.

Quash 10-14, ECF No. 1. For example, Mr. Lipman argues that Mr.

Antoon is using this subpoena to fish for information to be used

in the related interstate case Mojica.

Moreover, there is a

motion pending in Mojica that concerns the same information

requested in the instant subpoena. Moffa Decl. ¶ 13, ECF No. 2-

10 1; see Mot. in limine, ECF No. 282 (Mojica, 14-cv-5258). As

explained more thoroughly below, it is clear to this Court that

any decision in Antoon could impact the other three cases

pending before Judge Brooks, complicating the underlying suit.

Similarly, transfer is warranted to avoid the “risk of

inconsistent results” in the underlying litigation. Duck,

(quoting Fed. R. Civ. P. 45(f) advisory

committee’s note). In Duck, transfer was warranted in part

because there was a pending motion for summary judgment before

the issuing court. Therefore, resolving the motion to compel

could “create the potential for inconsistent or conflicting

rulings.”

. So here too. Pending before Judge

Brooks is Securus’ motion for summary judgment and its motion

for a protective order. See Mot. Protective Order, ECF No. 65

(5:17-cv-5008). The motion for a protective order was filed on

the same day as Mr. Lipman’s motion to quash and it puts forward

identical arguments. See id.; Mot. Quash, ECF No. 1. Both

motions argue that Mr. Antoon’s subpoena requests irrelevant

information in an effort to improperly obtain discovery for use

against Securus in Mojica.

Mr. Lipman argues that there is no danger of inconsistent

rulings because Judge Brooks has not ruled on the motion for a

protective order. Opp’n Transfer 13, ECF No. 5. Not so. This

Court’s ruling could still disrupt Judge Brooks’ management of

11 the case. It is clear that courts in this Circuit are concerned

about the potential for inconsistent results. See, e.g., Wultz,

. If this Court resolved Mr. Lipman’s motion to

quash, its decision could conflict with Judge Brooks’ resolution

of the same arguments.

This danger is not limited to the motion for a protective

order. Also pending before Judge Brooks are other nonparty

respondents’ motions to quash, which have already been

transferred. See Moffa Decl. ¶ 8, ECF. No 2-1. Finally, Judge

Brooks is reviewing similar discovery issues in the related ICS

cases. Mr. Lipman’s statements to the FCC—the statements at the

heart of this subpoena—are the “subject” of a pending motion in

limine in Mojica. Moffa Decl. ¶ 13, ECF No. 2-1; see Mot. in

limine, ECF No. 282 (Mojica, 14-cv-5258); Subpoena, ECF No. 1-2.

Given Judge Brooks’ “familiarity with the full scope of issues

involved as well as any implications the resolution of the

motion will have on the underlying litigation,” he is better

suited to make consistent determinations across all four cases.

Wultz,

.

Most importantly, Mr. Lipman’s motion to quash raises

multiple issues that are closely connected to the merits of the

underlying case, the interstate ICS cases, and the more than a

decade-long FCC ICS rulemaking proceeding. To illustrate, Mr.

Lipman puts forward four arguments in support of his motion to

12 quash. See Mot. Quash, ECF No. 1-2. First, he argues that the

information sought is “wholly irrelevant” to Mr. Antoon’s claims

in the underlying litigation. Id. at 1. Second, he argues that

Mr. Antoon should seek the information through party discovery.

Id. Third and fourth, he argues that the information requested

is protected by the attorney-client privilege and the work

product doctrine. Id. at 2. In opposing the motion to transfer,

Mr. Lipman argues that his “primary” argument is that the

subpoena requests material that is protected by the attorney-

client privilege and the work product doctrine. Opp’n Transfer

8-12, ECF No. 5. He downplays his relevance arguments, arguing

that the Court need not evaluate relevance. Id. at 1.

The Court disagrees, looking no further than Mr. Lipman’s

own motion to quash. See Mot. Quash 10-14, ECF No. 1. Mr.

Lipman’s first and most robust argument is that the subpoena

seeks irrelevant documents and oral testimony. Id. He contends

that Mr. Antoon is using the subpoena to improperly harass him

as a partner and Chairman of Morgan Lewis, Securus’ outside

counsel. Id. at 13. Mr. Lipman further asserts that Mr. Antoon

is improperly seeking discovery in Antoon to “fish for

information and testimony . . . to use in the separate Mojica

lawsuit.” Id. at 12. Securus renews these same arguments in its

motion for a protective order in the underlying case,

highlighting their significance. See Mot. Protective Order 9-14,

13 ECF No. 65 (5:17-cv-5008). Furthermore, Mr. Lipman’s written

objections to the subpoena confirm that his primary argument is

relevance. See Objections, ECF No. 1-9. The first and lengthiest

objection to each of the six categories of subpoenaed documents

is that the requested information is “irrelevant and not

reasonably calculated to lead to the discovery of admissible

evidence.” Id. Only after Mr. Antoon moved to transfer did Mr.

Lipman reorder his arguments, re-characterizing their primacy.

Opp’n Transfer 1, ECF No. 5.

The centrality of the relevance assessment weighs in favor

of transfer because determining whether information is relevant

requires “nuanced legal analysis based on a full understanding

of the Underlying Action.” Fed. Home Loan Mortg. Co. v. Deloitte

& Touche, LLP,

(D.D.C. 2015). As other courts

in this Circuit have routinely recognized, “[r]uling on the

subpoenaed documents' relevance would . . . require[] the Court

to delve into the intricacies of the underlying dispute. Given

the close relationship between the motion to quash and the

merits of the complex underlying dispute, the issuing court

[would be] in a better position to rule on the motion.” FDIC v.

Galan-Alvarez,

at *3 (D.D.C. Sept. 4, 2015).

This Court has “limited exposure to and understanding of the

primary action.” In re Disposable Contact Lens Antitrust

Litigation,

at *7 (D.D.C. May 18, 2017)(internal

14 quotations and citations omitted). In contrast, Judge Brooks is

already “knee-deep in the nuances of the underlying litigation”;

he is clearly “in a much better position than this Court to

evaluate relevance.” Flynn,

.

Finally, Mr. Lipman’s argument that Mr. Antoon is using the

subpoena to “improperly harass” him as Chairman of Morgan Lewis

and “fish” for discovery to use in Mojica weighs in favor of

transfer. Mot. Quash 10-14, ECF No. 1. Judge Brooks—who has been

dealing with these same parties for four years—is familiar with

“both the issues and the parties in the underlying action[s],”

which “strongly counsels in favor of transferring [the] motion

to quash . . . .” Flynn,

. 3

IV. Conclusion

For the foregoing reasons, Mr. Antoon’s motion to transfer

shall be GRANTED, and this miscellaneous proceeding, including

the pending motion to quash, shall be TRANSFERRED to the Western

District of Arkansas. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge January 3, 2018

3 Pursuant to the suggestion in the relevant Advisory Committee Note, this

Court has consulted with Judge Brooks, and he has agreed to handle the motion to quash upon transfer. See Fed. R. Civ. P. 45(f) advisory committee's note (“Judges in compliance districts may find it helpful to consult with the judge in the issuing court presiding over the underlying case while addressing subpoena-related motions.”).

15