Linder, David v. Calero-Portocarrero (2001)

Corp. v. Dickinson Wright, PLLC (In re Modern Plastics Corp.), 890 F.3d 244, 252 (6th Cir. 2018) (“[I]f an objection is made and the court orders the non-party to comply, the court must protect a non-party from significant expense[] resulting from compliance.”); Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (observing that Rule 45(d)(2)(B)(ii) “provides no exceptions” and “leaves no room for doubt that the rule is mandatory”); Linder v. Calero-Portocarrer…

While our Circuit Court has held that no jurisdictional barriers exist preventing a district court from ordering the federal government to comply with a subpoena issued under Rule 45, Linder v. Calero-Portocarrero, 251 F.3d 178, 180-81 (D.C.Cir.2001), 3 it has not resolved the specific issue of whether the word “person” in Rule 45 in fact includes the federal government. 4 Id. at 181 (acknowledging that while its “past decisions assumed that ‘person’ includes the federal gov…

In re Modern Plastics Corp., 890 F.3d 244, 252 (6th Cir. 2018); Legal Voice v Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Applying the correct standard, we have no trouble concluding that $20,000 is “significant.” See Linder, 251 F.3d at 182 (noting that $9,000 may be sufficiently significant to justify cost-shifting).

Bancorp, Inc., 11 F.3d 217 , 219-20 (D.C.Cir.1993) (Federal Reserve Board of Governors and FDIC); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1339-40 (D.C.Cir.1984) (SEC and CFTC); see also Yousuf v. Samantar, 451 F.3d 248, 250 (D.C.Cir.2006) (Department of State); Linder v. Calero-Portocarrero, 251 F.3d 178, 179-80 (D.C.Cir.2001) (Departments of State and Defense and CIA); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 (D.C.Cir.1984) (Departm…

We review the district court’s discovery orders for abuse of discretion, Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir.2001), except as to questions of law — such as the proper interpretation of Rule 45 — which we decide de novo.

Thus, only when the Department’s decision contravenes the APA’s famil- iar arbitrary-and-capricious standard can a district court force it to take part in state court discovery. 1 Compare Linder v. Calero-Portocarrero, 251 F.3d 178, 180 (D.C.

Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.

Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir.2001).

Under Rule 45, as significantly revised in 1991, “the questions before the district court are whether the subpoena imposes expenses on the non-party, and whether those expenses are ‘significant.’ ” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.Cir.2001) (quoting Fed.

Circuit has stated that “federal agencies cannot . . . claim sovereign immunity to avoid compliance with third party subpoenas.” ECF No. 8 at 3 (quoting Linder v. Calero-Portocarrero, 251 F.3d 178, 180 (D.C.

Thus, as the Eighth Circuit has recognized, “the federal government’s sovereign immunity is significant, but it does not give the Executive Branch a ‘blank check’ to ignore third-party subpoenas because the agency response may be judicially reviewed under the Administrative Procedure Act, 5 U.S.C. § 702 .” Alltel Commc’ns, LLC v. DeJordy, 675 F.3d 1100, 1104 (8th Cir. 2012); Linder, 251 F.3d at 180 (“Third-party subpoenas do not seek damages and so the court held that federa…

This cost shifting is required to “‘protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder non-significant.’” Linglong, 2018 WL 1631341 , at *2 (quoting Linder v. Calero–Portocarrero, 251 F.3d 178, 182 (D.C.

Rule 45(d)(2)(B)(ii) further states that, when a court orders compliance with a subpoena over objection, “the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Under this rule, courts consider only “whether the subpoena imposes expenses on the non- party, and whether those expenses are significant.” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Rule 45(d)(2)(B)(ii) further states that, when a court orders compliance with a subpoena over objection, “the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Under this rule, courts consider only “whether the subpoena imposes expenses on the non- party, and whether those expenses are significant.” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

This may include ordering the party seeking discovery to share at least enough of the cost of compliance to render the remainder “non- significant.” See Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Fed.R.Civ.P. 45(d)(2)(B)(ii); Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir.2013). “[O]nly two considerations are relevant” to the cost-shifting inquiry: “(1) whether the subpoena imposes expenses on the non-party, and (2) whether those expenses are ‘significant.’ ” Legal Voice, 738 F.3d at 1184 (adopting the rule set out by Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.Cir.2001)).

Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir.2001).

As the notes to the amendment explain, the 1991 changes were intended “to enlarge the 23 protections afforded persons who are required to assist the court.” 24 FED.R.CIV.P. 45, advisory committee notes. 25 Linder, 251 F.3d at 182 (citations omitted). 4 1 language from the Advisory Committee Notes to the Rule 45 amendments of 1991 (or any subsequent 2 amendment) that expands the cost-shifting protection of Rule 45(d)(2)(B)(ii) to deposition subpoenas. 3 Third, while Legal Voi…

Cir. 2006) (holding federal agencies are bound by Rule 45 subpoenas); Linder v. Calero-Portocarrero, 251 F.3d 178, 180 (D.C.

See Legal Voice, 738 F.3d at 1185 (concluding that $20,000.00 is “significant”); 7 see also Linder, 251 F.3d at 182 (noting that $9,000.00 may be sufficiently significant to 8 justify cost-shifting).4 9 IV.

“Under [Rule 45(d)(2)(B)(ii)], the questions before the district court are whether the subpoena imposes expenses on the non-party, and whether those expenses are ‘significant.’ If they are, the court must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’ ” Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Linder v. Calero–Portocarrero, 251 F.3d 178, 181-82 (D.C.

At the very least, the information protected by Exemption 3 meets the latter limitation because it is by definition “specifically exempted from disclosure by statute.” 5 U.S.C. § 552 (b)(3); see 50 U.S.C. § 3605 (a) (“[N]othing in this chapter or any other law . . . shall be construed to require . . . disclosure . . . .” (emphasis added)); cf. Linder v. Calero-Portocarrero, 251 F.3d 178, 183 (D.C.

Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (explaining that the rule “requires the district court to shift a non-party’s costs of compliance with a subpoena, if those costs are significant.”); Linder v. Calero–Portocarrero, 251 F.3d 178, 182 (D.C.

This cost shifting is required to “‘protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder non-significant.’” Linglong, 2018 WL 1631341 , at *2 (quoting Under v. Calero–Portocarrero, 251 F.3d 178, 182 (D.C.

See Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (If “discovery is ordered against a non-party,” and “the subpoena imposes significant expense on the non-party, . . . [then] the district court must order the party seeking discovery to bear at least enough of the cost of compliance to render the remainder ‘non-significant.’”); Linder v. Calero- Portocarrero, 251 F.3d 178, 182 (D.C.

Linder v. Calero- Portocarrero, 251 F.3d 178, 182 (D.C.

See Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (“This language leaves no room for doubt that the rule is mandatory.” (internal quotation marks omitted)); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

If the cost of compliance is significant, courts “must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’” Linder v. Calero–Portocarrero, 251 F.3d 178, 182 (D.C.

These provisions were included in Civil Rule 45 to “enlarge the protections afforded persons who are required to assist the court.” Id. (quoting Linder v. Calero- Portocarrero, 251 F.3d 178, 182 (D.C.

Decision & Order, PageID.100 (quoting Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

The costs that the court shifted were admittedly significant, but under the circumstances, the court exercised its discretion to shift enough of the costs to New Products and its counsel so that the remaining cost to the non-parties would be, in the words of two Courts of Appeals, “non-significant.” See Legal Voice v. Stormans, Inc., 738 F.3d 1178, 1184 (9th Cir.2013) (citing Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.Cir.2001)).

For example, in each of the following cases the discovery dispute was heard and *1276 determined in the underlying federal action and no independent, collateral action under the APA was required to be commenced: Watts v. Securities and Exchange Comm., 482 F.3d 501, 508 (D.C.Cir.2007) (stating that “an agency’s refusal to comply with a Rule 45 subpoena should proceed and be treated not as an APA action but as a Rule 45 motion to compel (or an agency’s Rule 45 motion to quash”…

Co. of Canada, 384 F. Supp. 2d 45, 49 (D.D.C. 2005) (citing Intel Corp., 542 U.S. at 264 ). 2 “Person” encompasses “corporations, companies [and] associations.” Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.

"Person” encompasses "corporations, companies [and] associations.” Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir. 2001) (quoting 1 U.S.C. § 1 ). 3 .

Section 1782 provides that the "district court of the district in which a person resides or is found may order him to give his testimony.” . 251 F.3d 178, 180-81 (D.C.Cir.2001). .

Glotzer v. Stewart, 374 F.3d 184 , 191 (2d Cir.2004), the Court of Appeals reiterated that “whether APA § 706 governs courts’ review of agency non-compliance with discovery requests [is] far from settled.” It also noted that “some of our sister circuits have affirmatively held that APA § 706 does not apply to motions to compel agency compliance with subpoenas.” Id. (citing Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774 , 778-79 (9th Cir. 1994); Linder v. Calero-Po…

Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.Cir.2001).

See Linder v. Calero-Portocarrero, 251 F.3d 178 , (D.C.Cir.2001); Houston Business Journal, 86 F.3d at 1212 n. 4.

See Glotzer, 374 F.3d at 191-92 (comparing Linder, 251 F.3d at 180-81 (holding that APA § 706 does not-apply to motion to compel agency compliance with subpoena duces tecum); Exxon Shipping, 34 F.3d at 778-79 (same), with COMSAT Corp. v. National Sci.

See id. (citing Legal Voice v Stormans Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) & Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Circuits, however, “adhere[ ] to the view ‘that sovereign naught” because (1) that order “compel[led] [non-party federal employees] to respond to subpoenas duces tecum issued by that court” and (2) “[the Tenth Circuit was] bound by Touhy”). 5 Accord Touhy, 340 U.S. at 472 (finding it “unnecessary . . . to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession”). 6 Such immunity, how…

June 17, 2020) (internal quotations omitted); see also Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C.

Id. at 1213 ; see also Santini, 456 F. Supp. 2d at 71 (“Whether a plaintiff seeks testimony or the production of documents from an agency, [the plaintiff] must comply with the agency’s Touhy regulations.”). 3 Despite the clear facts of Houston Business Journal, Barcode relies on two cases, Chen v. Ho, 368 F. Supp. 2d 97 (D.D.C. 2005) and Linder v. Calero-Portocarrero, 251 F.3d 178 (D.C.

See [Linder v. Calero-Portocarrero, 251 F.3d 178, 179-80, 182-83 (D.C.

See Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.

See Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.

See Linder v. Calero-Porto-carrero, 251 F.3d 178, 181 (D.C.Cir.2001); see also Watts, 482 F.3d at 508 (“Rule 45’s privilege and undue burden standard thus applies to both document and testimonial subpoenas.”). 2.

See Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir.2001) (“sovereign immunity is not a defense to a third-party subpoena”); U.S. EPA v. Gen.