May 12, 2017 Top Story

Large, Substantive Results from Small, Procedural Decisions

Choice of forum to resolve a discovery dispute may preclude effective appeal

By Adam E. Lyons

Transferring a third-party discovery dispute from a distant jurisdiction to one's home forum may lead to an unfavorable and unreviewable decision. A recent decision construing the 2013 revised version of Federal Rule of Civil Procedure Rule 45(f) determined that such a transfer precludes immediate appeal from denial of a motion to compel and may preclude any effective review.

P.H. Glatfelter Co. v. Windward Prospects Ltd. involved an attempt to enforce a third‑party subpoena served in the First Circuit for a matter pending in the Seventh Circuit. When the recipient of the subpoena refused to comply, the propounding party brought a motion to compel before a district court in the First Circuit.

In conjunction with its motion, the movant requested transfer of the matter pursuant to Federal Rule of Civil Procedure Rule 45(f) to the U.S. District Court for the Eastern District of Wisconsin, the court where the substantive case was pending. The movant based the request, which the respondent opposed, on exceptional circumstances. The district court transferred the matter.

The Eastern District of Wisconsin considered and denied the motion to compel. The movant sought review in the Seventh Circuit.

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