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Judge Ramos Determines That Rule 45 Allows the Person Subject to a Subpoena—Not a Party—to Consent to Transfer

On October 3, 2019, District Judge Edgardo Ramos  (S.D.N.Y.) granted SBA Communications Corporation’s (“SBA”) motion to transfer to the Eastern District of Texas a dispute over a subpoena served by Fractus, S.A. (“Fractus”) in connection with an ongoing  patent infringement lawsuit filed in the Eastern District of Texas. 

SBA, a nonparty to the E.D.Tex. action, filed a motion in the S.D.N.Y. to quash or transfer a subpoena served by Fractus directing SBA to produce at its New York Counsel’s office information for use in the Texas action.   In response to SBA’s motion to transfer, Fractus stated that Rule 45(f) “allow[s] transfer based only on a party consent or ‘exceptional circumstances.’”  As Fractus didn’t consent, the Court could not transfer except under “exceptional circumstances”. Judge Ramos held that that is not the standard. Rather, “[t]he plain language of Rule 45(f)…mentions only consent by the person subject to the subpoena.”  As SBA—the subject of the subpoena—requested the transfer, the Court exercised its discretion and granted SBA’s motion to transfer.  

Case: SBA Communication Corporation v. Fractus, S.A., No. 19-Misc. 130 (ER), (S.D.N.Y. Oct. 3, 2019).