IN RE: BOEING COMPANY AIRCRAFT SECURITIES LITIGATION (2023)

ORDER

Before the Court is a Motion to Compel brought by the Public Employees’ Retirement System of Mississippi, the City of Warwick Retirement System, and certain individual investors. Dkt. 1. The motion asks this Court to compel the Federal Aviation Administration (FAA) to comply with a subpoena duces tecum issued to support shareholder litigation in the Northern District of Illinois. Id. at 1. For the reasons that follow, the Court will deny the petitioners’ motion to compel.

“A subpoena may command ․ production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person [possessing such documents] resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A). “At any time, on notice to the commanded person, the [party serving a subpoena] may move the court for the district where compliance is required for an order compelling production.” Id. 45(d)(2)(B)(i).

The D.C. Circuit has not defined “the district where compliance is required.” Outside of this circuit, some courts say that a subpoena “requires compliance” in the location where it commands that the subpoenaed party produce documents—in this case, Wilmington, Delaware. Subpoena to Produce Documents at 1, Dkt. 4-6 (“YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents ․ Place: Bernstein Litowitz Berger & Grossmann LLP[,] 500 Delaware Avenue, Suite 901[,] Wilmington, DE 19801.”); see, e.g., Uniloc USA, Inc. v. Apple Inc., No. 19-cv-01692, 2020 WL 6262349, at *2 (N.D. Cal. Oct. 23, 2020); CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709 (N.D. Tex. 2017). Other courts say that “the ‘place of compliance’ depends on where the documents sought are located or where the ․ subpoena recipient resides or works.” Hi.Q, Inc. v. ZeetoGroup, LLC, No. 22-cv-1440, 2022 WL 17345784, at *8 (S.D. Cal. Nov. 29, 2022) (citing cases).

The Court concludes that a subpoena “requires compliance” in the location where it directs production, meaning that petitioners must file their motion in the District of Delaware. “[A]s always,” the Court begins with the text of the Federal Rules of Civil Procedure. Duncan v. Walker, 533 U.S. 167, 172 (2001). Although Rule 45(d)(2)(B)(i) does not define “district where compliance is required,” Rule 45(c) comes close. Titled “Place of Compliance,” it provides: “A subpoena may command ․ production ․ at a place within 100 miles” of a recipient's residence, place of employment, or regular place of business. Fed. R. Civ. P. 45(c)(2). The obvious implication is that a subpoena's “place of compliance” is the place where it “command[s] ․ production of documents,” in this case Wilmington. Id.

Context confirms this reading. For one thing, subpoenas “may command a person to attend a ․ deposition” as well as to produce documents. Id. 45(c)(1). And a subpoena commanding a deposition requires compliance at “the [deposition] address listed on the face of the subpoena,” not another location. Wultz v. Bank of China, Ltd., 304 F.R.D. 38, 43 (D.D.C. 2014). It makes little sense to apply a different rule for subpoenas duces tecum. In both contexts, the phrase “district where compliance is required” should carry the same meaning. Cf. Maryland v. EPA, 958 F.3d 1185, 1202 (D.C. Cir. 2020) (per curiam) (Statutory phrases “are not chameleons, acquiring different meanings when presented in different contexts.”); Clark v. Martinez, 543 U.S. 371, 382 (2005) (similar).

For another, subpoenaed parties often operate and/or hold documents in several judicial districts. In those circumstances, equating “place of compliance” with “place where the documents sought are located” or “place where the recipient resides or works” would lead to confusion and multiplicity. For example, the FAA operates in every American airport. See Federal Aviation Administration, Offices and Locations, https://perma.cc/B4B7-32JE. As a consequence, in some cases, a subpoena targeting the FAA might implicate documents kept in multiple locations. If “place of compliance” meant “place where the FAA kept a document” or “place where the FAA handled document production,” then that subpoena would spawn a squadron of motions to compel, one for each place where a document is found or reviewed. It seems far better, and simpler, to ascertain a subpoena's “place of compliance” by reference to the text of the subpoena itself. Cf. Fed. R. Civ. P. 1 (“These rules ․ should be construed ․ to secure the just, speedy, and inexpensive determination of every action and proceeding.”).

Although no court in this District has squarely addressed this issue, precedent in this District further suggests that a subpoena's “place of compliance” is the place set for compliance on the subpoena. See, e.g., Guice v. FTC, No. 20-mc-87, 2021 WL 1340922, at *1 (D.D.C. April 9, 2021) (subpoena “requesting that [entity] produce records ․ in San Francisco, California” demanded compliance in the Northern District of California); In re Non-Party Subpoena to Ctr. for Study of Soc. Policy, No. 21-mc-65, 2023 WL 2467738, at *2 n.2 (D.D.C. Mar. 7, 2023) (subpoena “order[ing]” non-party recipient “to comply in the District of Columbia” demanded compliance in the District of Columbia). The Court agrees.

The petitioners’ contrary arguments do not persuade the Court. The petitioners principally contend that reading “place of compliance” as “place where a subpoena recipient keeps or reviews documents” helps non-party subpoena recipients, who can then litigate motions to compel in their local district court, and thus furthers Rule 45’s purposes. Pls.’ Reply in Support of Mot. to Compel at 6–8, Dkt. 10. But that reading also hurts non-party subpoena recipients, or at least those with multiple offices or document repositories. It means that, to file motions to quash, they would have to file such motions in each district where they keep or review their documents. Cf. Fed. R. Civ. P. 45(d)(3)(B). At any rate, Rule 45 does not protect non-party subpoena recipients “at all costs.” Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) (per curiam). Because Rule 45’s language is clear in context, the Court need not supplement the Rule by reference to its supposed purpose.¹

The petitioners also argue that the FAA responded to its motion late, meaning that it forfeited its substantive arguments in opposition. But it is not obvious that the FAA filed anything out of time. The District's local rules require parties to respond to a motion “[w]ithin 14 days of [its] date of service.” LCvR 7(b); see also Fed. R. Civ. P. 6(d). And the FAA argues, with some justification, that petitioners never served it properly.² If that is so, Local Rule 7’s 14-day countdown never began, and the FAA did not miss any deadlines.

At any rate, the Court need not decide whether the petitioners served their motion adequately. Local Rule 7 provides that, if a party does not oppose a motion on time, the court “may treat the motion as conceded.” LCvR 7(b) (emphasis added). But “may” does not mean “must.” In view of the circumstances of this case—in which a reasonable legal theory justified the FAA's late filing, the petitioners have suffered no prejudice, the FAA responded no more than four days late, and there is no evidence that the FAA acted in bad faith—the Court declines to find that the FAA conceded the petitioners’ motion. Cf. Cohen v. Bd. of Trs. of the Univ. of D.C., 819 F.3d 476, 479 (D.C. Cir. 2016) (in deciding whether to extend a deadline under Federal Rule of Civil Procedure 6(b), a court should consider: “(1) the risk of prejudice to the other side; (2) the length of the delay and the potential impact on judicial proceedings; (3) the reason for the delay and whether it was within counsel's reasonable control; and (4) whether counsel acted in good faith.”).

For these reasons, it is ORDERED that the motion to compel, Dkt. 1, is DENIED without prejudice to refiling in the District of Delaware.

SO ORDERED.

FOOTNOTES

1.   On this point, the Court notes that other provisions of the Federal Rules protect subpoena recipients from undue inconvenience. See, e.g., Fed. R. Civ. P. 45(c)(2)(A) (A subpoena cannot command production more than “100 miles [from] where [a] person resides, is employed, or regularly transacts business in person.”).

2.   According to the FAA, the petitioners failed to serve their motion on the U.S. Attorney's Office for the District of Columbia. Notice of Non-Service at 2, Dkt. 3. Rule 5(b) of the Federal Rules of Civil Procedure provides: “If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.” And in affirmative litigation against federal agencies, like the FAA, the agency is typically represented by its local U.S. Attorney's Office. See 28 U.S.C. § 516.

DABNEY L. FRIEDRICH United States District Judge