United States District Court, S.D. Florida
ORDER DENYING DEFENDANTS' MOTION TO COMPEL
PRODUCTION OF DOCUMENTS FROM NON-PARTY TENNESSEE DEPARTMENT
OF CHILDREN SERVICES [DE 44]
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon Defendants',
Ocwen Loan Servicing, LLC ("Ocwen") and U.S. Bank
National Association, as Trustee, successor-in-interest to
Wachovia Bank National Association, as Trustee for GSMPS
Mortgage Loan Trust 2005-RP3, Mortgage Pass-through
Certificates, Series 2005- RP3 (the "Trustee")
(collectively, "Defendants") Motion to Compel
Production of Documents from Non-Party Tennessee Department
of Children Services [DE 44]. This matter was referred to the
undersigned upon an Order referring all discovery matters to
the undersigned for appropriate disposition. See DE
28. Non-Party Tennessee Department of Children's Services
("DCS") filed a Response to the Motion [DE 63] and
Defendants filed a Reply. [DE 64]. The Court held a hearing
on the Motion on May 15, 2018. The matter is now ripe for
Jennifer Ford Hernandez, has asserted claims for fraud,
conversion, trespass, wrongful foreclosure, intentional
infliction of emotional distress, misrepresentation,
violation of the Truth in Lending Act and Regulation Z,
unjust enrichment, and breach of contract against Defendants
because Defendants allegedly wrongfully foreclosed on
Plaintiffs home. [DE 1]. During Ms. Hernandez'
deposition, Ms. Hernandez alleged that the actions of
Defendants in improperly foreclosing on her home caused Ms.
Hernandez to lose her home and subsequently lose custody of
her grandchildren. Defendants then issued a subpoena to the
Tennessee Department of Children's Services
("DCS"), seeking the following documents:
"Any and all documents relating to the custody of B.A.L.
(DOB redacted) and A.L or any other children of M.L.L. in
custody of the Department of Children's Services. Any and
all records related to Jennifer Ford Hernandez's custody
of any grandchildren and/or foster care."
[DE 44-1, pg. 2]. DCS objected to Defendants' request as
the "Department's interest in protecting
confidential documents relating to children outweighs the
stated need for the documents by the defendants." [DE
44-3, pg. 2].
filed their Motion to Compel Production of Documents from DCS
on April 27, 2018. [DE 44]. In their Motion, Defendants seek
all DCS documents concerning when the state took custody of
Plaintiff s grandchildren, when Plaintiff took custody of her
grandchildren, the reasons her grandchildren were in the
custody of the state and then in the custody of Plaintiff,
and why Plaintiffs custody of her grandchildren was
terminated. [DE 44, pg. 2]. Defendants argue that the DCS
records are relevant in order to defend against Plaintiffs
claim that "Ocwen took away her ability to care for and
maintain custody of her grandchildren." [DE 44, pg. 3].
Defendants argue that a specific exception delineated in
Tennessee Code Annotated § 37-5-107(c)(2) permits
disclosure in this case.
DCS's Response [DE 63], DCS first argues that this Court
lacks jurisdiction to enforce this subpoena pursuant to
Federal Rule of Civil Procedure 45, which states that a
subpoena "may command...production of documents,
electronically stored information, or tangible things at a
place within 100 miles of where the person resides, is
employed, or regularly transacts business in person."
Fed.R.Civ.P. 45(c)(2)(A). DCS argues that because
Defendants' subpoena required compliance electronically
or in Memphis, Tennessee, any disputes regarding the subpoena
are proper in "the court where compliance is required,
" that is, the United States District Court for the
Western District of Tennessee. [DE 63, pg. 3].
also argues that the requested records are confidential under
Tennessee state law, which is controlling in a diversity
action, and that DCS has a compelling interest in protecting
the confidentiality of its documents. Id. DCS
rejects Defendants' proposal to narrow the requests by
omitting any "documentation related to any details of
reports of harm" from the documents. DCS stated that
narrowing the request was a "distinction without a
difference, " because the reports would necessarily
contain details of reports of harm by the very nature of the
reports. [DE 63, pg. 4]. DCS also argues that the specific
exception relied upon by Defendants only applies in a court
exercising criminal law jurisdiction. [DE 63, pg. 6]. DCS
argues that its records are "sacrosanct" and that
there is strong public policy protecting the confidentiality
of the records of the children in DCS's care. Therefore,
Defendants' need for the records to defend themselves in
a civil lawsuit does not outweigh DCS's interest in
protecting the welfare of the children in its custody. [DE63,
pg. 4, 7].
filed a Reply [DE 64] on May 14, 2018, in which they argue
that this Court has jurisdiction to adjudicate
Defendants' Motion to Compel due to the exceptional
circumstances in this case, pursuant to Federal Rule of Civil
Procedure 45(c). [DE 64, pg. 1]. Defendants argue that they
have a "legitimate interest" in the requested
records because they have narrowly tailored the request to
defend against Plaintiffs claims that she lost custody of her
grandchildren due to Defendants' actions. [DE 64, pg. 2].
Rule of Civil Procedure 45 requires subpoena-related motions
to be filed in the district court where compliance with the
subpoena is required. Fed.R.Civ.P. 45(c), (d)(2)(B)(i), and
(d)(3)(A); The Dispatch Printing Co. v. Zuckerman,
No. 16-CV-80037-Bloom/Valle, 2016 WL 335753, at *2 (S.D. Fla.
Jan. 27, 2016) (citing Morrissey v. Subaru of America,
Inc., 2015 WL 9583278, at *3 (S.D. Fla. Dec. 31, 2015).
However, Rule 45 allows the court to transfer a
subpoena-related motion to the issuing court for adjudication
"if the court finds exceptional circumstances."
Fed.R.Civ.P. 45(c); Zuckerman, WL 335753, at *2.
Although Rule 45(f) does not explain what qualifies as an
exceptional circumstance, the Advisory Committee Notes to the
2013 amendments provide two examples of situations in which
transfer due to exceptional circumstances is appropriate: (1)
when the issuing court has already ruled on issues presented
by the motion, and (2) when the same discovery issues are
likely to arise in many districts. Zuckerman, WL
335753, at *2; See Judicial Watch, Inc. v. Valle Del Sol,
Inc., 307 F.R.D. 30, 34 (D.D.C. 2014)
("Specifically, the authority to transfer
subpoena-related motions under Rule 45(f) broadly applies to
all motions under this rule, including motions for a
privilege determination.") (quotation marks omitted).
determining whether a motion should be transferred from the
compliance court to the issuing court, a court should look to
a "variety of factors to determine if the judge from the
issuing court is in a better position to rule on the motion
due to her familiarity with the full scope of the issues
involved as well as any implications the resolution of the
motion will have on the underlying litigation."
Zuckerman, WL 335753, at *2 (citing In re UBS
Financial Services, Inc. Securities Litigation, 2015 WL
4148857, at *1 (D.D.C. July 9, 2015) (quoting Wultz v.
Bank of China, Ltd.,304 F.R.D. 38, 47 (D.D.C. 2014)
(internal quotations omitted))). "These factors include
the complexity, procedural posture, duration of pendency, and
the nature of the issues pending before, or already resolved
by, the issuing court in the underlying litigation."
Id. (citing Judicial Watch, 307 F.R.D. at
34; see XY, LLC v. Trans Ova Genetics, L.C, 2014 WL
4437728, at *l-2 (D.D.C. Sept. 10, 2014) (finding exceptional
circumstances where issuing court "has already
supervised substantial discovery and begun preparations for
trial")); Wultz v. Bank of China, Ltd., 304
F.R.D. 38, 46 n. 6 (D.D.C. May 30, 2014) (transferring
subpoena-related motions in "highly complex"
litigation where issuing court "is in better position to
rule...due to her familiarity with the full scope of issues
involved as well as any implications the resolution of the
motion will have on the underlying litigation" and to
further "the interest in obtaining consistent rulings on
the issues presented"). "In addition, the Court
should consider whether requiring the local nonparty to