Opposition Brief — Baron & Budd, P.C. v. United States (No. 06-1437)

No. 06-1437

IN THE

Supreme Court of the Anited States

CLIENTS AND FORMER CLIENTS OF BARON & BUDD, P.C.

and OCCUPATIONAL MEDICAL RESOURCES, INC.,

Petitioners,

V.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

THOMAS W. TARDY, III

Counsel of Record

FORMAN PERRY WATKINS

KRUTZ & TARDY LIP

200 South Lamar Street

Suite 100

Jackson, Mississippi 39201

d. (601) 960-8633

Attorney for the Respondents

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON. D.C. 20002

BEST AVAILABLE COPY

PARTIES TO THE PROCEEDING

The proceedings below were two “miscellaneous” matters

opened in the United States District Court for the Southern

District of Texas for document subpoenas issued at the

instance of parties to litigation in the Asbestos Multi-District

Litigation Court No. 875 (“MDL 875”). pending in the

United States District Court for the Eastern District of Penn-

sylvania. The parties to those miscellaneous matters were:

(1) the Texas entity to which the subpoenas’ were directed,

Occupational Medical Resources, Inc. (“OMR”), and (2) the

parties who sought the subpoena. Respondents listed below,

who are defendants in MDL 875 and are Respondents before

this Court.

The 160 “individual” Petitioners listed as “clients and

former clients of Baron & Budd, P.C.” were not named in or

served with any subpoena, and were, in fact, denied inter-

vention by the Texas District Court tn the miscellaneous

proceedings. That order denying intervention by these indi-

viduals was not appealed, reversed, vacated. or disturbed. by

the Court of Appeals’ ruling on the petition for writ of

mandamus. In fact, Petitioners did not raise it whatsoever in

their petition to the Court of Appeals. Further, the District

Court's denial of intervention is not raised as an tssue in the

Petition to this Court. Accordingly, as discussed in Section |

below, the individual “clients and former clients of Baron &

Budd, P.C.” are not proper party-Petitioners with standing

before this Court.

Respondents are A.R. Wilfley & Sons. Inc.; Accurate Felt

& Gasket Co.. Inc.; Allied Glove Corporation (sometimes

sued as Nationwide Glove Corporation): Amsted Industries.

' Technically identical subpoenas were served on OMR and for a

related entity to ensure that all corporate entities associated with OMR

were served. For the purposes of this brief. reference will be made to only

a “subpoena” in the singular. issued to OMR itself.

(1)

ii

Inc.: Baldor Electric Company; Bondex International, Inc.:

CertainTeed Corporation; Chemtura Corporation; Cooper

Alloy Corp.; Crossfield Products Corp.: Eastern Safety

Equipment Company, Inc. (sometimes sued as Aearo Com-

pany); Flexo Products, Inc.; Gardner Denver, Inc.; General

Electric Co.; Georgia-Pacific Corporation; The Gorman-Rupp

Company; Gulf Coast Marine Supply Company; Pulsafeeder.

Inc.; Viking Pump Company; Warren Rupp, Inc.; Illinois

Tool Works Inc.; Ingersoll-Rand Company; Lawrence Pumps,

Inc.: Magnetrol International Incorporated; Marine Specialty

Company. Inc.; Mueller Steam Specialty; National Service

Industries, Inc. f/d/b/a North Bros. Company: Owens-Illinois.

Inc. d/b/a O-I; Pecora Corporation; Pneumo Abex, LLC:

Rogers Corporation; Aurora Pump Company: BIF; DeZurik,.

Inc.; Layne & Bowler Pump Group: Marsh Instruments:

Standard Equipment Company, Inc.; Turner Supply Com-

pany: Union Carbide Corporation; Amchem Products. Inc.:

Warren Pumps. LLC: Yeoman’s Chicago Corporation (also

erroneously served for “Chicago Pump Company” and/

or “Morris Machine Works/Morris Pumps”); Yuba Heat

Transfer.

iti

CORPORATE DISCLOSURES

The nongovernmental corporate party, A.R. Wilfley &

Sons, Inc.. does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Accurate Felt &

Gasket Manufacturing Co., does not have any parent corpora-

tion or publicly held corporation that owns 10% or more of its

stock.

The nongovernmental corporate party. Allied Glove Cor-

poration, does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Amsted Industries.

Inc., does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Baldor Electric

Company, does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Bondex Interna-

tional, Inc.. has the following parent corporation(s) or pub-

licly held corporation(s) that owns 10% or more of its stock:

RPM, Inc.

The nongovernmental corporate party, CertainTeed Corpo-

ration, has the following parent corporation(s) or publicly

held corporation(s) that owns 10% or more of its stock: Saint

Gobian.

The nongovernmental corporate party. Chemtura Corpora-

tion f/k/a Crompton Corporation. does not have any parent

corporation or publicly held corporation that owns 10% or

more of its stock.

The nongovernmental corporate party. Cooper Alloy Cor-

poration. in the above listed civil action does not have any

IV

parent corporation or publicly held corporation that owns

10% or more of its stock.

The nongovernmental corporate party. Crossfield Products

Corp.. does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Eastern Safety

Equipment Company, Inc.. does not have any parent cor-

poration or publicly held corporation that owns 10% or more

of its stock.

The nongovernmental corporate party. Flexo Products,

Inc., does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Gardner Denver.

Inc., does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party. General Electric

Company. does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Georgia-Pacific

LLC, f/k/a Georgia-Pacific Corporation, does not have any

parent corporation or publicly held corporation that owns

10% or more of its stock.

The nongovernmental corporate party, The Gorman-Rupp

Company. does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Gulf Coast Marine

Supply Company. does not have any parent corporation or

publicly held corporation that owns 10% or more of its stock.

The nongovernmental corporate party. Viking Pump, Inc..

has the following parent corporation(s) or publicly held cor-

poration(s) that owns 10% or more of its stock: IDEX

Corporation.

Vv

The nongovernmental corporate party, Warren Rupp, Inc.,

has the following parent corporation(s) or publicly held cor-

poration(s) that owns 10% or more of its stock: IDEX

Corporation.

The nongovernmental corporate party, Illinois Tool Works

Inc., successor by merger to Ransburg Corporation, successor

by merger to the DeVilbiss Industrial Products Corporation,

successor to the Industrial/Commercial Division of The

DeVilbiss Company (on behalf of Illinois Tool Works, Inc.),

does not have any parent corporation or publicly held cor-

poration that owns 10% or more of its stock.

The nongovernmental corporate party, Ingersoll-Rand Com-

pany, does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Lawrence Pumps,

Inc., does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Magnetrol Inter-

national Incorporated, does not have any parent corporation

or publicly held corporation that owns 10% or more of its

stock.

The nongovernmental corporate party, Marine Specialty

Company, Inc., does not have any parent corporation or

publicly held corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Mueller Steam

Specialty, does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

The nongovernmental corporate party, National Service

Industries, Inc., does not have any parent corporation or

publicly held corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Owens-Illinois, Inc.

d/b/a O-I, does not have any parent corporation or publicly

held corporation that owns 10% or more of its stock.

vi

The nongovernmental corporate party. Pecora Corporation.

does not have any parent corporation or publicly held cor-

poration that owns 10% or more of its stock.

The nongovernmental corporate party, Pneumo Abex,

LLC, has the following parent corporation(s) or publicly held

corporation(s) that owns 10% or more of its stock: M & F

Worldwide Corporation.

The nongovernmental corporate party, Rogers Corporation,

does not have any parent corporation or publicly held cor-

poration that owns 10% or more of its stock.

The nongovernmental corporate party, Aurora Pump Com-

pany, has the following parent corporation(s) or publicly held

corporation(s) that owns 10% or more of its stock: Pentair,

Inc.

The nongovernmental corporate party, BIF. has the follow-

ing parent corporation(s) or publicly held corporation(s) that

owns 10% or more of its stock: SPX Corporation.

The nongovernmental! corporate party, DeZurik, Inc., has

the following parent corporation(s) or publicly held corpora-

tion(s) that owns 10% or more of its stock: SPX Corporation.

The nongovernmental corporate party, Layne & Bowler

Pump Group, has the following parent corporation(s) or pub-

licly held corporation(s) that owns 10% or more of its stock:

SPX Corporation.

The nongovernmental corporate party. Marsh Instruments,

has the following parent corporation(s) or publicly held

corporation(s) that owns 10% or more of its stock: Marsh

Bellofram Corporation.

The nongovernmental corporate party, Standard Equipment

Company, Inc.. does not have any parent corporation or

publicly held corporation that owns 10% or more of its stock.

Vii

The nongovernmental corporate party, Turner Supply

Company, does not have any parent corporation or publicly

held corporation that owns !0% or more of its stock.

The nongovernmental corporate party, Union Carbide

Corporation, has the following parent corporation(s) or

publicly held corporation(s) that owns 10% or more of its

stock: The Dow Chemical Company.

The nongovernmental corporate party, Amchem Products,

Inc., has the following parent corporation(s) or publicly held

corporation(s) that owns 10% or more of its stock: The Dow

Chemical Company.

The nongovernmental corporate party, Warren Pumps,

LLC, does not have any parent corporation or publicly held

corporation that owns 10% or more of its stock.

The nongovernmental corporate party, Yeoman’s Chicago

Corporation (also erroneously served for “Chicago Pump

Company” and/or “Morris Machine Works/Morris Pumps”),

does not have any parent corporation or publicly held cor-

poration that owns 10% or more of its stock.

The nongovernmental corporate party, Yuba Heat Transfer,

does not have any parent corporation or publicly held cor-

poration that owns 10% or more of its stock.

Se

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING...........ccccccceccceccesee. i

CORPORATE DISCLOSURES. ..........cccccccccecccecesecsecees iii

TABLE OF AUTHORITIES..............ccccccccesceccoeceseceeeeee x

a ceuenseevevenoveveevensevouesete |

STATEMENT OF THE CASE ...ccccccccccccccecececceceececseveee |

REASONS WHY THE PETITION SHOULD BE

i Sai taitcdac Ai seccielaieinsasiniecessi 4

I. THE INDIVIDUALS DESCRIBED AS

“CLIENTS AND FORMER CLIENTS OF

BARON AND BUDD, P.C.”. ARE NOT

PROPER PARTIES TO THIS PETITION........ 5

ll. THERE IS NO CONFLICT IN’ THE

Be ca 6

Il. THE COURT OF APPEALS CORRECTLY

HELD THAT THE MDL COURT MAY

DECIDE DISPUTES RELATED TO

DOCUMENT SUBPOENAS AS WELL AS

SUBPOENAS FOR DEPOSITIONS ................ 7

IV. THE “PLAIN MEANING” RULE OF

STATUTORY CONSTRUCTION IS NOT

ID vlc deni testenindtVaneeveninireiisinsdvionntenseuess 10

V. THE EXTRAORDINARY REMEDY OF

MANDAMUS WAS NOT WARRANTED IN

$e COURT OF APPEALL. .........ccccscosccesesesess 13

I edi sicnsondadensvouseeressonssveneeeseversesevesevessersys 14

X

TABLE OF AUTHORITIES

CASES Page

Allied Chem. Corp. v. Daiflon, Inc.. 449 U.S. 33

[Fa ipipinctcanchcelapeiansrineasadematianahadiisansbmedineiaivt 13,14

Davis v. Mich. Dept. of Treasury, 489 U.S. 803

Eeieicendhscishacsvsatidiehpibtncieesnialiietdnecdibhnemebiacacacians 1]

HCA, Inc. yv. United States ex rel. Pogue, 2002

WL 31953748 (M.D. Tenn. 2002)...............06. 7

In re Silica Prods. Liab. Litig., 398 F. Supp. 2d

ie Ge PE ii iiris acidic testa slie 2

In re Ashestos Prods. Liab. Litig. (No. VI). MDL

No. 875,771 F. Supp. 415 (J.M.P.L. 1991)....... 2.8

In re Auto Refinishing Paint Antitrust Litig., 229

Fie ee Cis FBO siccrrecininciccnversienctionnn 7.10

In re New York City Mun. Sec. Litig.. 572 F.2d

Fy CUE ieticieceiecchinbibeenedepeictecieicncrins 8

In re Sealed Case, 141 F. 3d 337 (D.C. Cir.

Psi iaicihsraciciantisleisbiaicasnniceihecbuaaig Raab aantitais 6.7

In re Subpoenas Served on Wilmer, Culter &

Pickering & Goodwin Proctor LLP, 255 F.

Sante BE AER Be inecacntntisacicincnespeineioasin 7.9

In re Subpoena Issued to Boies, Schiller &

Flexner LLP, 2003 WL 1831426 (S.D.N.Y.

DOS ikieisicncssintiicigcansicgassuidepuimieiiaiiemmcnieee 7. 10

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Phillips Corp., 510 U.S. 27 (1993)... eee 5.6

Lexecon. Inc. v. Milberg, Weiss Bershad Hvnes

rer BVA RER Sy. 7G 7 eermCnnn 10, 11

Roche vy. Evaporated Milk Ass‘n., 319 U.S. 21

B12: SRRCRPROR Epon atne HIE CO eR OCA Sree Sen aS 13

United States ex rel. Pogue v. Diabetes Treat-

ment Ctrs. of Am., Inc., 238 F. Supp. 2d 270

CIA COED Ganinh cosets nchvirsindotnaiienucencijeta 7. 8.9. 12.13

U.S. Nat'l Bank of Or. v. Independent Ins. Agents

of Am., Inc.. 508 U.S. 439 (1993)... eceeeeeeeees 11

i

XI

TABLE OF AUTHORITIES—Continued

Page

Will v. Calvert Fire Ins. Co., 437 U.S. 655

EEE NE aie tata as aetna Bl abeb cna 13

STATUTES AND RULES

ee alaiiidicibacckiuvnenidseesrcsiipieswiaateiiannes passim

ID SE Pete BIT oocccvcircvcccetercececessiversennces 5, 6

Fe a Gia hceiinsevondcindcosecenspiineystindchanuvediiieni 12, 13

MISCELLANEOUS

9 James W. Moore et al., Moore’s Federal

Practice § 45.40[4] (Matthew Bender 3d ed.

9A Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 2459, 2006

SE CIE BID csetcsnieisscsirscesssessiesteeiacesesiotns 7

Admin. Order Authorizing Discovery Concern-

ing Litigation Screenings, /n re Asbestos

Prods. Liab. Litig. (No. V1), MDL 875 (E.D.

i Be ne OE cad crdtiekcvtiadesnceipereiebninidpubenitiods 2

Admin. Order No. 8, /n re Asbestos Prods. Liab.

Litig. (No. VI), MDL 875 (E.D. Pa. Jan. 15.

IEE sik. sarcl chs caslelbaniands ecitebiocnbebeucnanenlcasonlaatiedasoies 2

H.R. Rep. 90-113, 90th Cong., 2nd Sess., 1968

U.S. Code Cong. & Adm. News 1898 (Feb.

ie Ee inssituicnaites dicaaieasii nscaalldbiataiauadiesiabastimes 8,9

The Silicosis Story: Mass Tort Screening and the

Public Health: Hearing Before the Subcomm.

on Oversight and Investigations, 109th Cong.

CE Hi iii Sich cniseririna decentie bili iaiatnatnddicnstcadsa

i)

IN THE

Supreme Court of the Anited States

No. 06-1437 |

CLIENTS AND FORMER CLIENTS OF BARON & Bubb, P.C.

and OCCUPATIONAL MEDICAL RESOURCES, INC..

Petitioners,

Vv.

UNITED STATES DisTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS, ef al...

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

———————————

RESPONDENTS’ BRIEF IN OPPOSITION

INTRODUCTION

Respondents respectfully request that this Court deny the

petition for writ of certiorari, seeking review of the decision

of the United States Court of Appeals for the Fifth Circuit

denying mandamus relief. That opinion is reported at 478

F.3d 670 (Sth Cir. 2007).

STATEMENT OF THE CASE

On August 1, 2006. the Respondents, party defendants in

MDL 875 pending in the United States District Court for the

Eastern District of Pennsylvania. had document subpoenas

issued to Petitioner OMR. a Texas company. through the

2

United States District Court for the Southern District of

Texas. OMR operated as a “screening” enterprise for the pur-

pose of identifying potential asbestos personal injury plain-

tiffs. The document subpoena sought the production of docu-

ments, for inspection and copying at its offices. related to

those practices. The fraudulent. assembly-line practices of

screening companies and unscrupulous physicians who have

generated false “diagnoses” for mass tort claimants have been

the subject of both judicial decisions and congressional in-

guiry. See. e.g. In re Silica Prods. Liab. Litig., 398 F. Supp.

2d 563. 634-35 (S.D. Tex. 2005): The Silicosis Story: Mass

Tort Screening and the Public Health: Hearing Before the

Subcomm. on Oversight and Investigations, 109th Cong.

(Mar. 8, 2006). The MDL 875 Court has specifically ac-

knowledged that the practice of filing mass screened asbestos

cases is “tantamount to a race to the courthouse,” Admin.

Order No. 8, at 1. /n re Asbestos Prods. Liab. Litig. (No. V1),

MDL 875 (E.D. Pa. Jan. 15, 2002), and that court has specifi-

cally authorized discovery regarding litigation screenings,

Admin. Order Authorizing Discovery Concerning Litigation

Screenings, at 1, /n re Ashestos Prods. Liab. Litig. (No. V1).

MDL. 875 (E.D. Pa. Mar. 23, 1999).

The Rule 45 subpoena served on OMR only sought the

production of specified documents and left the box on the

subpoena form commanding a person to appear for deposition

unchecked, as it was deemed by Respondents that no depo-

sition of a company official would be necessary. at least at the

time of production. The subpoena had a miscellaneous cause

number assigned by the Southern District of Texas but indi-

cated it related to case proceedings in MDL 875. In response

to the subpoena. OMR filed objections on August 10, 2006

and a motion to quash in the Southern District of Texas on

August 24. 2006. OMR’s motion objected to the production

of any documents whatsoever on the grounds, inter alia, that

the request was unduly burdensome. overbroad. and sought

production of “confidential commercial information.” No ob-

2.

3

jection, however, was lodged by OMR on the ground that the

subpoena was for documents only and was not for a deposi-

tion. Similarly, on August 25, 2006, the individuals asserted

to be “clients and former clients of Baron & Budd, P.C.,”

who were not named in or served with any subpoena, moved

to intervene and to quash the subpoena, alleging privacy in-

terests and that they were not plaintiffs in MDL 875, although

some were admittedly asbestos plaintiffs in other cases. As

with OMR, no objection was lodged on any claim that the

subpoena to OMR was only for the production of documents.

On September 20. 2006. the Southern District of Texas

issued an order denying the individuals’ motion to intervene

and, with respect to OMR, ruled that further pleadings on the

subpoena dispute should be filed in MDL 875. App. at 5-6.

The District Court did not address the merits of OMR’s ob-

jections to the subpoena but, in effect. chose to defer ruling to

the district judge for MDL 875, who has responsibility for

coordinated and consolidated pretrial proceedings in as-

bestos cases.

OMR. and also the would-be intervenors, then filed a peti-

tion for mandamus in the United States Court of Appeals for

the Fifth Circuit, seeking extraordinary relief on the ground

that the Texas District Court had wrongfully withheld jur-

isdiction to determine whether the subpoena should be en-

forced or quashed.

On February 7, 2007, a unanimous panel of the Fifth Cir-

cuit denied the petition for mandamus. App. 1-4. 478 F.3d

670 (Sth Cir. 2007). The Court of Appeals. following the

“overwhelming weight of authority” and “convincing analysis

of myriad district courts.” as well as the “persuasive analysis”

of treatise commentators, held that in multi-district litigation

' MDL 875 has already ruled on similar objections made by other

entities who were served with identical subpoenas and overruled these

objections.

4

matters. the court in charge of consolidated proceedings

has the power to rule on a motion to quash subpoenas. issued

by other district courts but related to MDL cases, and that

subpoenas for the production of documents were included in

that power.’

Petitions for panel rehearing and rehearing en banc were

denied. with one dissent from the denial of panel rehearing.

App. at 7.

It is noted that as no documents have been produced by

OMR, Respondents filed a motion to compel production in

October 2006 before the MDL Judge and the relative merits

of the subpoena dispute remain pending before MDL 875

District Judge James Giles. In January 2007. Baron & Budd,

P.C. filed a motion to intervene in the pending MDL proceed-

ings with regard to the document subpoenas and to oppose

their enforcement. That motion also remains pending.

REASONS WHY THE PETITION

SHOULD BE DENIED

The Petition demonstrates none of the factors which would

warrant the exercise of certiorari jurisdiction. As a threshold

matter. the individuals described as “clients and former

clients” of a law firm are not proper party-petitioners under

the circumstances. Substantively. there is no conflict in the

Circuit Courts of Appeal nor was there any departure from a

decision of this Court in the Fifth Circuit's denial of manda-

mus relief. As the Court of Appeals observed, there is in fact

a consensus among the district courts and treatise commenta-

tors that for subpoenas related to multi-district litigation, the

* In denying mandamus relief on the merits of OMR’s petition, the

Court of Appeals declined to reverse or vacate the district court's order

denying intervention to the individuals asserted to be “clients and former

clients” of the law firm. Petitioners did not raise the denial of their mo-

tion to intervene whatsoever in their petition for writ of mandamus.

5

judge assigned to conduct consolidated and pretrial proceed-

ings may logically and reasonably determine disputes related

to document productions as well as depositions. The Fifth

Circuit cannot be said to have erred in denying the extraordi-

nary and discretionary remedy of mandamus under the cir-

cumstances and as a practical matter, the substantive validity

of OMR’s objections to the document subpoena are pending

decision by the MDL judge.

I. THE INDIVIDUALS DESCRIBED AS “CLIENTS

AND FORMER CLIENTS OF BARON AND

BUDD, P.C.” ARE NOT PROPER PARTIES TO

THIS PETITION.

As a threshold matter, the 160 individuals described as

“Clients and Former Clients of Baron and Budd, P.C.” are not

proper parties with standing to file the Petition under the

particular circumstances here. The District Court in fact

denied intervention to these individuals, and the Court of Ap-

peals did not reverse, vacate or otherwise disturb that order.

see above at the Statement of the Case. With the adverse

ruling in the district court on their status as intervenors, the

individuals are not the proper parties to seek review in this

Court because the lower court's denial of their motion to

intervene is not presented as an issue in the petition. /zumi

Seimitsu Kogvo Kabushiki Kaisha v. U.S. Phillips Corp., 510

U.S. 27 (1993). The instant petition does not include any

issue seeking review of their status.

As explained by the Cowrt in /zumi, the question of a

would-be intervener’s status 1s “akin to a question regarding

a party's standing, which we have described as a threshold

inquiry that in no way ¢epends on the merits of the case.”

510 U.S. at 427 (internal quotations and citations omitted).

Although one who has been denied the right to intervene in

lower courts may petition the Court for certiorari review. the

question must be preserved by meeting Supreme Court Rule

6

14.1 (a), which provides that “[o]nly the questions set forth in

the petition, or fairly included therein, will be considered by

the Court.” Under /zumi, a denial of intervention is a separate

question that must be separately stated and is not “fairly

included” in a petition devoted to questions on the merits.

Here, the issues set forth in the Petition are whether the

provisions of the multi-district litigation statute include docu-

ment subpoenas and whether a motion to quash can be trans-

ferred by an issuing district court to another district court

handling MDL proceedings. The existing denial of interve-

nor status for the individual “clients and former clients” of the

law firm is neither mentioned nor fairly included in the issues

set forth in the Petition.

Accordingly, only OMR, the “screening” business to which

the subpoena was directed, may arguably be considered as a

party-petitioner.

Il. THERE IS NO CONFLICT IN THE CIRCUITS.

There ts no conflict in the Circuit Courts of Appeal that

would warrant this Court’s exercise of certiorari jurisdiction,

and the Petition cites none. In fact, the Fifth Circuit is the

first and only court of appeals to address and rule upon the

particularized issue of whether a district judge assigned to

MDL proceedings may consider and rule upon a motion to

quash a subpoena for documents sought in relation to the

multi-district proceedings but issued by another district court.

There is no conflict in this particular context, material or

otherwise.

The Petition suggests at pp. 4-5 that the Fifth Circuit deci-

sion conflicts with /n Re Sealed Case, 141 F.3d 337 (D.C.

Cir. 1998). It does not. Sealed Case holds that for Rule 45

purposes, only an issuing district court for a subpoena may

consider a motion to quash the subpoena, not the district court

in which the underlying case is pending. Sealed Case, how-

ever, did not involve or consider a subpoena related to multi-

J

district proceedings assigned to a MDL judge under 28

U.S.C. § 1407 (b), and it is therefore distinguishable and not

indicative of any real conflict with the Fifth Circuit.’ More-

over, there is no real dispute among the district courts. In

fact. as discussed in the section below, district courts and

commentators that have addressed this issue are in agreement

that a motion to quash a document subpoena related to multi

district proceedings can be properly heard by a MDL court.

E.g.. In re Auto Refinishing Paint Antitrust Litig., 229 F.R.D.

482, 485 n.5 (E.D. Pa. 2005); United States ex rel. Pogue v.

Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270.

274-75 (D.D.C. 2002); In re Subpoenas Served on Wilmer,

Culter & Pickering & Goodwin Proctor LLP, 255 F. Supp. 2d

1. 1-3 (D.D.C. 2003): HCA. Inc. v. United States ex rel.

Pogue, 2002 WL 31953748, at *3-*4 (M.D. Tenn. 2002); Jn

re Subpoena Issued to Boies, Shiller & Flexner LLP, 2003

WL 1831426, at *1 (S.D.N.Y. 2003); 9 James W. Moore et

al.. Moore’s Federal Practice § 45.40[4], at 45-75 to 45-77

(Matthew Bender 3d ed. 2006) (footnotes omitted); 9A

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 2459, 2006 Supp.. at 19 (West 1995).

Iii. THE COURT OF APPEALS CORRECTLY

HELD THAT THE MDL COURT MAY DECIDE

DISPUTES RELATED TO DOCUMENT SUB-

POENAS AS WELL AS SUBPOENAS FOR

DEPOSITIONS.

There is no basis for the Court to grant the Petition,

because the Court of Appeals correctly held, along with nu-

merous district courts and leading treatise commentators, that

a MDL judge under 28 U.S.C. § 1407(b) may determine

* In fact, rather than conflicting with Sealed Case. the Fifth Circuit

opin.on accepted the basic premise that in normal litigation. “fa] motion

to quash or modify a subpoena is to be granted by the court in which a

subpoena was issued.” App. at 3.

8

disputes related to document subpoenas issued in other dis-

trict courts. as well as disputes relating to subpoenas for

depositions issued in other district courts as part of its man-

date to handle coordinated and consolidated pretrial proceed-

ings. As one district court has put it. it would make “no

sense” for § 1407 (b) to confer authority to conduct deposi-

tions but not the authority to require the production of

documents. United States ex rel Pogue v. Diabetes Treatment

Cirs. of Am. Inc., 238 F. Supp. 2d 270, 275 (D.D.C. 2002)

(internal citation and quotation omitted).

The salutory purposes of the multi-district litigation statute.

as well as the order creating asbestos MDL 875, include. inter

alia, the centralized management and coordination of con-

solidated pretrial proceedings in transferred cases so as to

permit the efficient, just and effective conduct of such actions.

See, e.g.. In Re New York City Mun. Sec. Litig.. 572 F.2d 49.

51 (2nd Cir. 1978).; Pogue, 238 F. Supp. 2d at 273; Jn re

Asbestos Prods. Liab. Litig. (No. VI), MDL No. 875, 771 F.

Supp. 415, 417 (holding that “centralization under § 1407 in

the Eastern District of Pennsylvania will best serve the

convenience of the parties and witnesses and promote the

just and efficient conduct of this litigation’). It is beyond

question that the supervision and conduct of pretrial dis-

covery. including the production of documents. depositions.

and the motions pertaining thereto. are at the heart of the

centralized nature of a MDL court and are the most basic

judicial functions of the district judges assigned to those

matters. MDL courts were created to avoid

conflicting pretrial discovery demands for docu-

ments and witnesses [that] would disrupt the

Federal courts. . . . The objective of the legislation

is .. . to assure the ‘just and efficient conduct’ of

such actions. The committee believes that the

possibility for conflict and duplication in discovery

and other pretrial procedures in related cases can be

9

avoided or minimized by such centralized manage-

ment. . . . By the term ‘pretrial proceedings’ the

committee has reference to the practice and proce-

dure which precede the trial of an action. These

generally involve deposition and discovery ... .

[and] the [MDL] transferee district court would

have authority to render summary judgement, to

control and limit proceedings. and to impose sanc-

tions for failure to make discovery or comply with

pretrial orders.

H.R. Rep. 90-113, 90th Cong., 2nd Sess., 1968 U.S. Code

Cong. & Adm. News 1898, *1-2 (Feb. 28, 1968).

Section 1407(b) states that MDL judges “may exercise the

powers of a district judge in any district for the purpose of

conducting pretrial depositions” in consolidated MDL cases.

App. 21-22. Although the Fifth Circuit and district courts

have acknowledged a potential tension between provisions of

Rule 45 and the statutory permission granted a MDL judge to

act “in any district” to “conduct depositions.” the over-

whelming consensus is that § 1407(a), reasonably construed,

permits the MDL judge to act to resolve subpoena disputes in

the issuing district. including disputes involving document

subpoenas. The strained approach and prohibition advocated

by Petitioners has been correctly rejected. Pogue, 238

F. Supp. 2d 270, 275 (holding that to effectuate the goals of

§ 1707 (b). “the power to act as the judge of any district for

pretrial depositions includes as an incident power to enforce a

subpoena duces tecum”) (collecting cases): Jn re Subpoenas

Served on Wilmer. Cutler, Pickering and Goodwin Proctor

LLP. 255 F. Supp. 2d 1. 2 (D.D.C. 2003) (district court

issuing document subpoena defers ruling on motion to quash

to MDL judge because, infer alia. the subpoena “relates

directly to a set of proceedings that have been consolidated

for pretrial purposes.” under § 1407 the MDL judge may

exercise the powers of a district judge in any district. and

10

deferring to the MDL judge who was “already familiar with

the massive litigation . . . serves the interests of justice.

efficiency, and consistency that underlie the MDL rules”): /n

re Subpoena Issued to Boies, Schiller & Flexner LLP, 2003

WL 1831426 (S.D.N.Y. 2003) (deferring to MDL judge on

motion to quash document subpoenas because enforcing or

quashing a subpoena duces tecum is inherent to the authority

to supervise pretrial proceedings and “pretrial depositions” in

“any district.”); /n re Auto Refinishing Paint Antitrust Litig.,

229 F.R.D. 482, 485 n.5 (E.D. Pa. 2005).

Accordingly, the lower federal courts have reached a rea-

sonable and correct consensus in practice and approach to the

resolution of this issue, and there is no pressing need for the

intervention of this Court.

IV. THE “PLAIN MEANING” RULE OF STATU-

TORY CONSTRUCTION IS NOT IMPLICATED

The Petitionor contends at Pages 4-9 that the Court of

Appeals departed from the “plain meaning™ rule of statutory

construction because the language of 28 U.S.C. § 1407(b)

states that the MDL judge may exercise the powers of a

district judge in any district for the purpose of “conducting

pretrial depositions” in MDL proceedings. The Petition seeks

to rely upon Lexecon, Inc. v. Milberg, Weiss Bershad Hynes

& Lerach, 523 U.S 26 (1997). However, Lexecon is distin-

guishable and is not germane to the decision below, and the

“plain meaning” rule, which Respondents concede is a princi-

pal method of statutory construction, cannot be stretched

bevond its reasonable and intended uses. As noted above. the

Petitioner's strained attempt to confine MDL judges to “con-

ducting depositions” in other districts—and not permitting

resolution of document disputes—has been fairly rejected by

the lower courts.

First. the Lexecon decision is distinguishable in that it did

not construe anv provision of 28 U.S.C. § 1407(b). and it

1]

applied the “plain meaning” rule to give literal effect to an

explicit and unconditional statutory command that was in fact

plain and straightforward. Section 1407(b) unambiguously

required that:

Each action so transferred [to a multi-district litiga-

tion court] shall be remanded |by the Judicial Panel

on Multi-District Litigation] at or before the con-

clusion of such pretrial proceedings to the district

from which it was transferred.

Id. (emphasis added). As found by Lexecon, the plain

meaning of this straightforward command, which used the

mandatory “shall,” was that the “self transfer” of cases for

trial, rather than a remand to the originating district for trial,

was prohibited. 523 U.S. at 35-36. Lexecon did not address

the very different language and purposes of § 1407(b), and

-accordingly the Fifth Circuit did not depart from that case in

any way.

Second, the “plain meaning rule” almost by definition does

not apply where statutory language is not obligatory and

clear, nor does it compel a court in those circumstances to

ignore the context of particular language, to discard the fun-

damental purposes of an act, or to reach an interpretation of

language which is at odds with common sense. Davis v.

Mich. Dept. of Treasury, 489 U.S. 803, 809 (1989) (re-jecting

“hypertechnical” reading of statutory language as implausible

and observing that it is fundamental that the words of a

statute “cannot be construed in a vaccum” but, instead, “must

be read in context and with a view to their place in the overall

statutory scheme”): U.S. Nat'l Bank of Or. v. Independent Ins.

Agents of Am., Inc., 508 U.S. 439, 454-455 (1993) (noting

that a statute’s plain meaning must be enforced but that

a court “must not be guided by a single sentence or member

of a sentence but look to the provision of the whole law,

and to its object and policy”) (internal quotation omitted).

The Petition’s claim that disputes over document subpoenas

12

related to MDL pretrial proceedings are never within the

purview of a MDL Judge makes just these mistakes.

The lower courts which have rejected such arguments have

understood that a strained and narrow reading of the type of

subpoena disputes that may be considered by a MDL Judge

would be at odds with the overriding purposes of multi-

district litigation and would be illogical. The isolated words,

taken at the most literal extreme argued for in the petition

would limit the MDL judge only to “conducting pretrial

depositions” in other districts—an unusual concept and

terminology—and not even to determine disputes arising over

depositions. The provision at issue is not in the nature of an

express mandatory limitation on the MDL judge; it does not

use the unambiguous “shall.” And, from a practical stand-

point, it would make no sense for a MDL judge to be able to

determine disputes regarding deposition subpoenas and not

also be able to require the production of subpoenaed docu-

ments related to those depositions or any other MDL pro-

ceeding. See, e.g., Pogue, 238 F. Supp. at 275. The Pogue

court further explains the counterproductive nature of require-

ing that a MDL party only seeking the production of docu-

ments, aS permitted by Federal Rule of Civil Procedure

45(c)(2)(A), to also have to demand a deposition.

[A subpoena duces tecum can be issued as an

incident to] a deposition. In this case, however, the

subpoena duces tecum was not issued pursuant to a

deposition notice. . . . Relator understandably did

not want to waste his allotted depositions by

noticing depositions to accompany these subpoenas

duces tecum for the sole purpose of invoking the

Court’s jurisdiction to enforce under § 1407. The

laws and rules governing federal courts strive to

minimize elaborate formality and needless pro-

cedure. . . . To effectuate those goals and to avoid

placing on parties and nonparties from whom

13

documents are sought the burden of holding a pro

forma deposition in order to come under the aegis

of § 1407, see Fed. R. Civ. P. 45(c)(2)(A) (a sub-

poena to produce documents does not require the

person to appear). the Court holds that the power to

act as the judge of any district for pretrial deposi-

tions includes as an incident the power to enforce

subpoenas duces tecum.

238 F. Supp. 2d at 274-75.

The Petitioner’s “plain meaning” argument is without merit

as a basis for review of the Court of Appeals’ judgment.

V. THE EXTRAORDINARY REMEDY OF MAN-

DAMUS WAS NOT WARRANTED IN THE

COURT OF APPEALS

Finally, it is respectfully submitted that the context in

which this Petition arises. from the denial by the Court of

Appeals of the extraordinary remedy of mandamus, also mili-

tates against the exercise of the Court's certiorari jurisdiction.

The remedy of mandamus is a drastic one. to be invoked

only in extraordinary situations. Allied Chem. Corp. v.

Daiflon, Inc.. 499 U.S. 33, 34 (1980). In the Court of Ap-

peals. the burden was on Petitioner to “show that its right to

issuance of a writ is clear and indisputable.” Will v. Calvert

Fire Ins. Co., 437 U.S. 655, 662 (1978) (granting certiorari

but overturning a grant of mandamus). Only exceptional

circumstances “amounting to a judicial usurpation of power

will justify the invocation of this extraordinary remedy.”

Will. 437 U.S. at 95. The use of the writ in aid of appellate

jurisdiction “has been to confine an inferior court to a lawful

exercise of its prescribed jurisdiction or to compel 11 to

exercise its authority when it is its duty to do so.” Roche v.

Evaporated Milk Ass‘n.. 319 U.S. 21. 26 (1943).

14

The Southern District of Texas deferred ruling on the

motion to quash to the MDL judge. Under the circumstances.

there was neither a usurpation of judicial power nor a clear,

explicit obligation commanding the Texas Court not to defer

to the MDL judge. Accordingly. the Court of Appeals did not

err in denying the discretionary and extraordinary remedy of

mandamus. Similarly, mandamus relief usually requires a

demonstration that the petitioner lacks an available alternative

remedy. Allied Chem. Corp. v. Daiflon, Inc., 499 U.S. 33, 33

(1980). Here, OMR is not without any alternative remedy. as

the substantive merits of the validity of the OMR objections

to the Respondents’ document subpoena is pending for deci-

sion by the MDL 875 Judge.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari should

be denied.

Respectfully submitted.

THOMAS W. TARDY, II

Counsel of Record

FORMAN PERRY WATKINS

KRUTZ & TARDY LLP

200 South Lamar Street

Suite 100

Jackson, Mississippi 39201

(601) 960-8633

Attorney for the Respondents