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Gee v. Women's Health Care Center

United States District Court, E.D. Louisiana

June 25, 2019


         SECTION “S” (2)



         This is a subpoena enforcement action ancillary to underlying litigation currently pending in the United States District Court for the Middle District of Louisiana. June Medical Services, LLC, et al. v. Gee, C.A. No. 16-444 (“June”). The June plaintiffs challenge the constitutionality of several 2016 Louisiana abortion statutes, including a provision addressing the handling of fetal remains after abortions.

         In this court, movants are the Secretary of the Louisiana Department of Health, the Louisiana Attorney General, the District Attorney of Caddo Parish and the Commissioner of the Louisiana Division of Administration, all of whom are defendants in June. Under this court's authority, movants issued a subpoena to Women's Health Care Center ("Women's") and Delta Clinic of Baton Rouge ("Delta"), Record Doc. No. 1, neither of which are June parties. This court issued an order compelling Women's and Delta to provide responses to the subpoena. Record Doc. No. 8. Women's and Delta provided responses and supplemental responses. Record Doc. Nos. 11-1, 11-2.

         Two motions are now pending before me. The first is movants's motion for an order to show cause concerning civil contempt. Record Doc. No. 9. In that motion, movants complain that, although materials responsive to the subpoena were produced after the court order, some contained redactions. I deferred ruling on that motion until the unredacted materials were produced to me for in camera review, Record Doc. No. 17, as required by a protective order concerning discovery that was issued by the court in June. The unredacted materials have now been produced to me, Record Doc. No. 20, and I have reviewed them in camera.

         The second, related motion seeks to file certain materials, which are described below, under seal. Record Doc. No. 10. The motion to seal states that sealing of these materials is sought only “out of an abundance of caution.” Record Doc. No. 10 at p. 1. Movants make clear in their motion and supporting memorandum that they do not support sealing of these documents, but they do so because the subpoena recipients have designated them as confidential, and movants challenge that designation.

         Women's and Delta filed a memorandum in opposition to the civil contempt show cause motion, Record Doc. No. 11, but they make no statement specifically addressing the motion to seal. No. separate memorandum in opposition to the motion to seal has been received. Having considered all of the submitted materials, the record of both proceedings and the applicable law, both motions are DENIED, subject to the redaction of home addresses, for the following reasons.

         As an initial matter, subpoenas duces tecum are discovery. See Garvin v. S. States Ins. Exchg. Co., 2007 WL 2463282, at *5 n.3 (N.D. W.Va. Aug. 28, 2007)(Subpoenas duces tecum “‘are discovery devices”) (quoting In re Application of Time, Inc., 1999 WL 804090, at *7 (E.D. La. Oct. 6, 1999), aff'd, 209 F.3d 719, 2000 WL 283199 (5th Cir. 2000)); Nicholas v. Wyndham Int'l, Inc., 2003 WL 23198847, at *1-2 (D.V.I. Oct. 1, 2003) (the “clear majority position [is] that use of Rule 45 subpoenas constitutes discovery”); Mortg. Info. Servs. v. Kitchens, 210 F.R.D. 562, 566-67 (W.D. N.C. 2002) (“a Rule 45 subpoena does in fact constitute discovery”); accord Martin v. Oakland County, 2008 WL 4647863, at *1 (E.D. Mich. Oct. 21, 2008); Fabery v. Mid-S. Ob-GYN, 2000 WL 35641544, at *1 (W.D. Tenn. May 15, 2000).

         Significantly, all discovery in June is subject to a protective order that is in effect and by its clear terms applies both to parties and non-parties. June M.D.La. Record Doc. No. 96 at pp. 2 and 7 (“[T]his Protective Order shall govern the handling of all confidential and sensitive documents . . . and any other material or information produced, disclosed or filed by any party or non-party and designated as such . . . . "[A] producing or receiving party may require redactions to such materials, whether they are the party's own materials or materials produced by another party or non-party for use in this litigation. To the extent that a party objects to any such redaction, the parties shall address that dispute subject to the provisions of this Order, with the Court ultimately to decide (based on an in camera review of a non-redacted version of materials at issue) any dispute over the need for redactions that the parties cannot resolve on their own.") (emphasis added)). In addition, the June court also issued a separate protective order permitting three particular doctors to proceed anonymously as plaintiffs. June M.D.La. Record Doc. No. 12.

         Federal courts must respect and enforce the orders of other courts, particularly in ancillary matters related to pending litigation like the captioned miscellaneous matter in this court. See In re: DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir. 2002)(citing Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995)(“[A] federal court is bound by the proper orders of another federal court.”)); Mugworld, Inc. v. G.G. Marck & Assocs., Inc., No. 405CV441, 2007 WL 2229568, at *1 (E.D. Tex. June 15, 2007) (". . . it is well-settled that 'the need for comity is not to be downplayed.'")(denying motion to compel production of deposition testimony which was protected by protective order issued by another court) (citing Holland v. Summit Tech., Inc., 2001 WL 1132030, at *4 (E.D. La. 2001))); Tucker v. Ohtsu Tire & Rubber Co., Ltd., 191 F.R.D. 495, 499 (D. Md. 2000)(“Courts which have been called upon to decide discovery motions that involve requests to modify or terminate a protective order previously issued by another court, whether state or federal, have frequently felt constrained by principles of comity [and] courtesy' not to do so."); Dushkin Publishing Group, Inc. v. Kinko's Service Corp., 136 F.R.D. 334, 335 (D.D.C. 1991)(as a matter of comity, documents shielded by a protective order issued in another case would not be ordered produced).

         As to the show cause/contempt motion, movants bear the burden of establishing by clear and convincing evidence that: (1) a court order was in effect; (2) the order required certain conduct by the respondent; and (3) the respondent failed to comply with the court order. In the contempt context, “clear and convincing evidence is that ‘weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct, weighty and convincing as to enable [the] fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.'” Moawad v. Childs, 253 F.3d 700, 2001 WL 498491, at *1 (5th Cir. Apr. 9, 2001) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)); accord Bunnett & Co., Inc. v. Dores, 2018 WL 1168860, at *5 (W.D. Tex. Mar. 6, 2018) (Austin, M.J.); Am. Serv. Mktg. Corp. v. Bushnell, 2009 WL 1870887, at *2 (E.D. La. June 25, 2009) (Engelhardt, J.).

         Applying these standards, the motion to show cause concerning civil contempt is denied for two reasons. First, no order of this court was violated. My order made no mention one way or the other concerning redaction.

         Second, and more significantly, the redactions were specifically permitted by the protective order issued by the Middle District Court governing discovery in June. M.D.La. Record Doc. No. 96. The protective order provides:

Any document or information produced by any party or non-party during the course of this litigation in response to any subpoena or discovery request . . . may be designated as ...

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