United States District Court, E.D. Louisiana
REBEKAH GEE ET AL.
WOMEN'S HEALTH CARE CENTER
ORDER AND REASONS ON MOTION
C. WILKINSON, JR UNITED STATES MAGISTRATE
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.
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.
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
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
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.
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).
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.
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
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.).
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.
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