United States District Court, N.D. Texas, Dallas Division
UNITED STATES ex rel. FRANK M. REMBERT, et al., Relators,
BOZEMAN HEALTH DEACONESS HOSPITAL, et al., Defendants.
MEMORANDUM OPINION AND ORDER TRANSFERRING
L. HORAN, UNITED STATES MAGISTRATE JUDGE.
Bozeman Health Deaconess Hospital (“BDH”) has
filed a Motion to Quash Subpoena and for Protective Order
[Dkt. No. 1 (the “Motion to Quash”)] under
Federal Rules of Civil Procedure 26(c) and 45(d), directed at
a document subpoena and a subpoena for a Federal Rule of
Civil Procedure 30(b)(6) deposition (the
“Subpoenas”) that Relators Frank M. Rembert and
Michael R. Paradise, the relators in United States ex.
rel. Rembert v. Bozeman Health Deaconess Hospital, et
al., No. CV-15-80-BU-SEH (the “Underlying
Matter”), in the United States District Court for the
District of Montana, served on Non-Party Value Management
Group, LLC (“VMG”). BDH seeks an order quashing
or modifying the Subpoenas and entering a protective order
“because [the Subpoenas] seek information that is
protected by BDH's attorney-client privilege and the
attorney work product protection.” Dkt. No. 1 at 1.
in turn, filed a Rule 45(f) Motion to Transfer Consideration
of Subpoena-related Motions [Dkt. No. 9 (the “Motion to
Transfer”)] under Federal Rule of Civil Procedure 45(f)
and a Rule 45(d)(2)(B)(i) Cross-Motion to Compel Compliance
with Subpoena Duces Tecum [Dkt No. 11 (the
“Cross-MTC”)] under Federal Rule of Civil
States District Sidney A. Fitzwater has referred the Motion
to Quash, the Motion to Transfer, and the Cross-MTC to the
undersigned United States magistrate judge for determination
under 28 U.S.C. § 636(b)(1)(A). See Dkt. Nos. 4
oppose the Motion to Quash, see Dkt. No. 12; BDH
opposes the Motion to Transfer, see Dkt. No. 19, and
the Cross-MTC, see Dkt. No. 20; and BDH and Relators
have filed replies in support of their motions, see
Dkt. Nos. 20, 21, & 22.
their Motion to Transfer, Relators request an order under
Rule 45(f) transferring the subpoena-related Motion to Quash
and Cross-MTC to the United States District Court for the
District of Montana, as the issuing court, for decision in
connection with the Underlying Matter. See Dkt. No.
9 at 1-2.
report that “[t]he subpoena recipient in this case,
[VMG], has not responded to Relators' inquiries to
indicate whether it consents to transfer” but note that
“[t]ransfer may nonetheless be appropriate, without
VMG's consent, if exceptional circumstances exist.”
Dkt. No. 10 at 1. Relators explain that, “in this case,
it is not the subpoenaed party that has objected or claimed a
right in the documents being withheld”; that
“[t]he only objection to VMG's full compliance with
[the Subpoenas] was raised by Defendant [BDH], which is
already participating in the” Underlying Matter in
Montana”; and that “[t]he subpoenaed party has
not objected and has not responded to Relators' inquiries
about whether it would oppose transfer” and “[b]y
all indications, ... has no dog in this fight so transfer
would cause it no inconvenience.” Id. at 2.
[t]ransfer is also appropriate because, aside from the
threshold waiver issue, Defendant BDH's motion raises
issues that may overlap with matters that will necessarily be
decided in Montana.
For example, BDH claims a privilege over documents generated
by VMG in 2014 - almost two years before the underlying suit
was filed - that have been shared with non- party InterCity
Radiology, P.C. (“ICR”). Defendants have claimed
that they share a common interest with ICR that permits them
to withhold communications about the subject matter of this
dispute dating back as early as 2005. See Cause No.
CV 15-80-BU-SHE (Doc. 163) (addressing Defendants'
argument regarding a common interest/joint defense
privilege). On January 20, shortly before filing its motion
here in Texas, BDH issued a privilege claw-back notice
seeking to recover from Relators hundreds of pages of 2014
communications with and about VMG that were previously
produced in discovery. The clawed-back documents included not
only documents produced by BDH itself but also documents
produced by non- party ICR in response to another Rule 45
subpoena. Relators were forced to respond with a Rule
26(b)(5)(B) motion for determination of privilege which is
currently pending in the underlying case. See Cause
No. CV 15-80-BU-SHE (Doc. 159).
To the extent resolution of the parties' cross- motions
in this matter depends on findings about whether Defendants
share a common interest/joint defense privilege with ICR,
those issues are already pending in Montana and are really
part of a larger dispute between Relators and Defendant BDH,
so Rule 45(f) transfer is appropriate.
Id. at 2-3. Relators further explain in their
briefing on the Motion to Quash and the Cross-MTC that,
“[s]hortly before filing [BDH's Motion to Quash],
Defendants issued a Rule 26(b)(5)(B) claw-back notice seeking
the return of numerous documents related to the 2014
valuation”; that “[m]ost of those documents were
produced by Defendants, but some were produced by non-party
ICR”; that “Relators prepared a log of the
documents Defendants seek to claw-back”; but that
“Relators cannot present those documents to this
Court.” Dkt. No. 12 at 20 (citing Dkt. No. 13, Ex. 23,
opposes transfer, arguing that “Relators have not met
their burden of showing the exceptional circumstances
necessary to warrant such a transfer.” Dkt. No. 19 at
1. BDH contends that, while transfer may be warranted to
avoid disrupting the issuing court's management of the
underlying litigation, ” the Court should look for two
such situations: (1) when the issuing court “has
already ruled on issues presented by the motion, ” and
(2) when “the same issues are likely to arise in
discovery in many districts.” Id. at 2.
According to BDH, “Relators do not and cannot contend
that the issuing court has ‘already ruled on issues
presented by the motion' because it has not, ” and
Relators cannot “contend that the same issues are
likely to arise ‘in many districts'” and,
instead, “omit the phrase ‘in many districts'
from their discussion, incorrectly suggesting that the test
is simply whether ‘the same issues are likely to arise
in discovery.'” Id. (quoting Dkt. No. 10
at 1-2). BDH argues that, “[h]aving misapplied the
relevant test, Relators' argument, that the cross-motions
raise issues that ‘may' overlap with matters that
will be decided in one other district (the issuing court), is