SEC V. Gewerter

On an issue of first impression the Ninth Circuit held that “on the basis of the clear language of Rule 45, we must hold that the court the issued the subpoena, and not the court where the underlying action is pending, can entertain a motion to quash or modify a subpoena.”

The Securities and Exchange Commission (“SEC”) filed a claim against an individual named John Edwards in April 2008. In June of 2009, a final judgment in favor of the SEC was entered in the Nevada district court ordering a payment of nearly $55 million by Edwards, which was not complied with. In an effort to collect, the SEC discovered that Edwards had wired $25,000 to the trust account of Harold P. Gewerter, Esq. Ltd. held at the Bank of the West. The SEC had district court for the Northern District of California serve a subpoena on the Bank of the West as the bank is headquartered in northern California. Gewerter filed a motion to quash the subpoena in the Nevada district court and was denied without prejudice as Fed. R. Civ. P. 45(c)(3) stated that the Nevada district court “had no authority to quash a subpoena that was issued by a court in another district.” Gewerter appealed. The Ninth Circuit held that Gewerter must be entitled to seek an immediate review of his denied motion to quash, “in order to prevent the SEC from obtaining records relating to his trust account.” In answering an issue of first impression, the Ninth Circuit also held that “on the basis of the clear language of Rule 45, we must hold that the court that issued the subpoena, and not the court where the underlying action is pending, can entertain a motion to quash or modify a subpoena.” The Court held the district court of Nevada did not err in stating that it lacked jurisdiction to consider Gewerter’s motion to quash. AFFIRMED.