                   United States Court of Appeals
              for the District of Columbia Circuit
                                
                                
                                
                                
                                   Argued March 20, 1998             Decided April 1, 1998
    
    
    
                           No. 98-5062
                                
                 In re: Sealed Case No. 98-5062
                                
                                
                                
    On Petition for Writ of Mandamus Directed to the United
      States District Court for the District of Columbia
                        (No. 98ms00042)
                                
                                   
         Herbert J. Miller, Jr., argued the cause and filed the
    Petition for Writ of Mandamus. 
    
         Robert S. Bennett argued the cause and filed the
    response. 
    
         Before: Williams, Henderson and Tatel, Circuit Judges.
    
         Opinion for the Court filed by Circuit Judge Williams.
              Concurring Opinion filed by Circuit Judge Henderson.
              
         Williams, Circuit Judge: Respondent, defendant in a
    civil case pending in the United States District Court for
    the Eastern District of Arkansas, served a subpoena duces
    tecum on petitioner, a law firm, demanding production of
    documents and testimony at a deposition in Washington, D.C. 
    That subpoena, in conformance with Federal Rule of Civil
    Procedure 45(a)(2), issued from the United States District
    Court for the District of Columbia.  When petitioner
    objected to the subpoena, respondent filed a motion to
    compel in district court here, and petitioner responded with
    a motion to quash the subpoena, also in district court here.
    Further, suggesting that the trial court in Arkansas was
    more familiar with the issues presented, respondent moved
    the district court here to transfer the motions to the
    Eastern District of Arkansas.  Petitioner objected, but the
    trial court granted the transfer motion.  Petitioner
    thereupon sought review of the transfer order via this
    mandamus petition.  
    Finding that the district court lacked authority to
    transfer the motions under the Federal Rules of Civil
    Procedure, we vacate the order. 
                                I.
                                   Mandamus will issue only upon a showing that the
    petitioner's right is "clear and indisputable," Gulfstream
    Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
    (1988), and that "no other adequate means to attain the
    relief" exist, Allied Chemical Corp. v. Daiflon, Inc., 449
    U.S. 33, 35 (1980).  We leave to part II the analysis of
    petitioner's right and here determine only the threshold
    issue of the adequacy of other means of relief.
    A conceivable alternative would have been for
    petitioner to proceed by direct appeal.  In all likelihood,
    of course, the only consequence of finding that this was a
    viable alternative would be a need to relabel the mandamus
    action an appeal, but it turns out that appeal is not
    available. 
    Ordinarily a discovery order is not considered final
    and hence may not be immediately appealed under 28 U.S.C.
     1291.  A party seeking interlocutory review must instead
    disobey the order and be cited for contempt.  He may then
    appeal the contempt order, which is considered final, and
    argue that the discovery order was flawed.  See Church of
    Scientology of California v. United States, 506 U.S. 9, 18
    n.11 (1992) (citing United States v. Ryan, 402 U.S. 530, 532
    (1971)); In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir.
    1997).  Under the so-called Perlman doctrine, however,
    discovery orders addressed to disinterested nonparties are
    immediately appealable.  See Church of Scientology, 506 
    U.S. at 18 n.11 (citing Perlman v. United States, 247 U.S. 7
    (1918); In re Sealed Case, 655 F.2d 1298, 1300-01 (D.C. Cir.
    1981) ("Sealed Case I"). 
    Perlman appears inapplicable to these facts, however.
    It reflected concern that where the subject of the discovery
    order (characteristically the custodian of documents) and
    the holder of a privilege are different, the custodian might
    yield up the documents rather than face the hazards of
    contempt, and would thereby destroy the privilege.  See
    Sealed Case I, 655 F.2d at 1300-01.  Here, however,
    petitioner is asserting its own interests in work product
    and in not being subject to what it claims is burdensome and
    abusive discovery, plus the privilege of its client (which
    it is normally duty-bound to assert, see Republic Gear Co.
    v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir. 1967);
  Model Rules of Professional Conduct Rule 1.6 (1995)).    Thus
    it has the requisite incentives (as well as the clear
    ability) to risk contempt and thereby force review into the
    usual channel.  Accordingly, direct appeal is unavailable as
  an alternative avenue for relief.   Respondent suggests that petitioner may file a motion
    in Arkansas requesting that the matter be retransferred. 
    This strikes us as plainly inadequate.  Petitioner rests its
    objection to the transfer order precisely on the theory that
    the Rules of Civil Procedure protect it from having to
    litigate in or travel to any forum other than that which
    issued the subpoena, i.e., the district court for the
    District of Columbia.  Sending it to the federal court in
    Arkansas to press that claim obviously denies it, in a way
    that cannot be remedied on appeal. 
    This circuit has frequently exercised its mandamus
    jurisdiction to vacate transfer orders, especially where the
    transfer was beyond the district court's power, as
    petitioner alleges here.  See, e.g., Ukiah Adventist Hosp.
    v. FTC, 981 F.2d 543, 548 (D.C. Cir. 1992); In re Briscoe,
    976 F.2d 1425, 1427 (D.C. Cir. 1992); In re Scott, 709 F.2d
    717, 719 (D.C. Cir. 1983).  Respondent tries to distinguish
    these cases as involving transfers of an entire civil
    action, as opposed to a motion.  The distinction may bear on
    the district court's power to make the transfer, but we do
    not see how it undermines the case for mandamus relief. 
    Petitioner is not a party to the underlying litigation. 
    From its perspective, and indeed from ours as well, the
    controversy between it and the respondent consists solely of
    the discovery dispute.  Thus, in the absence of any
    explanation by respondent of his conclusory argument against
    application of the principle allowing mandamus for review of
    a transfer order, we find it available as it would be to any
    transfer of any case, large or (as here) small.  
    The writ is available not only to "confin[e] 'an
    inferior court to a lawful exercise of its prescribed
    jurisdiction'"  In re Halkin, 598 F.2d 176, 198 (D.C. Cir.
    1979) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21,
    26 (1943)), but also "to prevent abuses of a district
    court's authority to transfer a case."  Ukiah, 981 F.2d at
    548 (quoting In re Chatman-Bey, 718 F.2d 484, 486 (D.C. Cir.
    1983).  Mandamus vacating the transfer order and keeping the
    matter in this circuit would, moreover, be "in aid of" our
    jurisdiction, thus fitting neatly within the language of the
    All Writs Act, 28 U.S.C.  1651(a).  Satisfied that the
    nature of the alleged error is such as to permit correction
    by mandamus, we now turn to the merits.
                               II.
                                   The district court rested its conclusion largely on the
    Advisory Committee's Note to the 1970 amendments to Rule
    26(c), but the place to start, whatever the Note's ultimate
    relevance, is the text of Rule 45.  That text offers no
    authorization to transfer a motion to quash and seems at
    least implicitly to forbid it.  The rule permits, and in
    some circumstances requires, "the issuing court" to quash or
    modify a subpoena.  See Fed. R. Civ. P. 45(c)(3)(A).  It
    allows enforcement of a subpoena following objections only
    "pursuant to an order of the court by which the subpoena was
    issued."  Fed. R. Civ. P. 45(c)(2)(B).  It provides that
    failure to obey a subpoena may be deemed contempt "of the
    court from which the subpoena issued."  Fed. R. Civ. P.
  45(e).    All of this language suggests that only the issuing
    court has the power to act on its subpoenas.  See, e.g.,
    Kearney v. Jandernoa, 172 F.R.D. 381, 383 n.4 (N.D. Ill.
    1997); Byrnes v. Jetnet Corp., 111 F.R.D. 68, 69 (M.D.N.C.
    1986).  Subpoenas are process of the issuing court, see In
    re Certain Complaints Under Investigation, 783 F.2d 1488,
    1494-95 (11th Cir. 1986), and nothing in the Rules even
    hints that any other court may be given the power to quash
    or enforce them.  See Productos Mistolin, S.A. v. Mosquera,
    141 F.R.D. 226, 227-29 (D. P.R. 1992) (quoting Advisory
    Committee Notes on 1991 amendments).
    There are other textual difficulties with transfer of
    motions to quash.  Rule 45(c)(3)(A)(ii) directs the issuing
    court to quash or modify a subpoena that requires a nonparty
    to travel more than 100 miles from the place where the
    nonparty "resides, is employed or regularly transacts
    business in person."  This restriction is obviously hard to
    square with a principle that allows the issuing court to
    transfer the motion to quash to another district--in this
    case, the parties tell us, a district 892 miles away. 
    Perhaps more significant, not only would a transferee court
    lack statutory authority to quash or enforce another court's
    subpoena, it would often lack personal jurisdiction over the
    nonparty.  The principle that courts lacking jurisdiction
    over litigants cannot adjudicate their rights is elementary,
    and cases have noted the problem this creates for the
    prospect of transferring nonparty discovery disputes.  See
    Byrnes, 111 F.R.D. at 70 & nn.1 & 2; cf. Piper Aircraft Co.
    v. Reyno, 454 U.S. 235, 241 (1981) (noting requirement of
    personal jurisdiction in alternative forum for dismissal
    under the forum non conveniens doctrine); 28 U.S.C.
     1404(a) (allowing transfer to any other district "where
    [the action] might have been brought").
    More generally, the rules governing subpoenas and
    nonparty discovery have a clearly territorial focus.
    Applications for orders compelling disclosure from
    nonparties must be made to the court in the district where
    the discovery is to be taken; failure to comply with such an
    order is a contempt of that court.  Fed. R. Civ. P.
    37(a)(1); 37(b).  Subpoenas for attendance at a trial must
    issue from the court for the district in which the trial is
    held; for attendance at a deposition, from the court for the
    district in which the deposition is to be taken.  Fed. R.
    Civ. P. 45(a)(2). (Rule 34(c) explicitly makes the subpoena
    process of Rule 45 the route to compelling production of
    documents from nonparties.)  It may well be true, as
    respondent suggests, that the trial court will be better
    able to handle discovery disputes.  But Congress in the
    Rules has clearly been ready to sacrifice some efficiency in
    return for territorial protection for nonparties.  Cf.
    Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 1998
    WL 85319, at *9 (U.S. 1998) (acknowledging that broader
    district court authority to transfer cases might be
    desirable but observing that "the proper venue for resolving
    that issue remains the floor of Congress").
    What of Rule 26(c), springboard for the Advisory
    Committee Note on which the district court relied?  That
    rule authorizes the issuance of protective orders by "the
    court in which the action is pending or alternatively, on
    matters relating to a deposition, the court in the district
    where the deposition is to be taken."  It says nothing of
    transfer.  An Advisory Committee Note to the 1970 amendments
    states that "[t]he court in the district where the
    deposition is being taken may, and frequently will, remit
    the deponent or party to the court where the action is
    pending."  
    We can assume that if Rule 45 were ambiguous, one might
    look to a clear Advisory Committee Note to resolve that
    ambiguity--maybe even an Advisory Committee Note to a
    completely different rule, and maybe even a Note written 21
    years before the 1991 amendment added subdivision 45(c) to
    "clarify and enlarge the protections" afforded witnesses. 
    Advisory Committee Note to Federal Rule of Civil Procedure
    45.  But cf. Libretti v. United States, 516 U.S. 29, 41
    (1995) (rejecting use of Advisory Committee Note on one rule
    to elucidate meaning of another, and pointing to different
    dates of rule and Note). 
    But before tackling all the ifs and stretches in that
    assumption, it is useful first to address the text of the
    Note.  It refers to the possibility that "[t]he court in the
    district where the deposition is being taken may, and
    frequently will, remit the deponent or party to the court
    where the action is pending."  Respondent's argument takes
    "remit the deponent or party" to mean "transfer the motion." 
    But that is not the phrase's meaning unless the Advisory
    Committee used English incorrectly, or at least
    eccentrically.  "Remit" can indeed mean "to submit or refer
    (something) for consideration, judgment, decision or action
    . . . ."  Webster's Third New International Dictionary 1920
    (1981).  That usage would make sense if the motion were the
    object of "remit."  But it isn't.  The object of "remit" is
    an active person or entity, "the deponent or party."  Thus
    the relevant usage supplied by the dictionary is "to refer
    (a person) for information or help (as to a book or
    person)."  Id.  
    The Advisory Committee Note is thus more naturally read
    to suggest that the court for the district where the
    deposition is to be taken may stay its action on the motion,
    permit the deponent to make a motion for a protective order
    in the court where the trial is to take place, and then
    defer to the trial court's decision.  See Kearney, 172
    F.R.D. at 383.  This reading cures the jurisdictional
    problems; a nonparty that moves for a protective order in
    the court of the underlying action thereby submits to that
    court's jurisdiction.  
    Such a reading might seem to raise a new question: does
    it allow the nonparty witness territorial convenience with
    respect to motions to quash but not with respect to motions
    for a protective order?  They are not obviously so
    different; in fact there is broad overlap in the grounds for
    granting the two motions.  Compare Fed. R. Civ. P. 26(c)(1)-
    (4) with Fed. R. Civ. P. 45(c)(3)(A).  As it turns out, the
    differential treatment is only apparent.  The operation of
    the subpoena rules in fact grants nonparty witnesses the
    privilege of choosing to litigate in their home districts
    regardless of how relief is sought.
    In the end what affords the nonparty deponent this
    territorial protection is that the rules vest power to
    compel discovery from a nonparty, and to impose contempt
    sanctions for non-compliance, in the subpoena-issuing court. 
    Fed. R. Civ. P. 37(a)(1); Fed. R. Civ. P. 45(e).  Rule 26(c)
    permits that court to stay its proceedings on a nonparty
    deponent's motion for a protective order pending action by
    the trial court, and to defer to the trial court's
    resolution of that motion.  The rules may well allow similar
    abstention on a motion to quash, followed by deference to
    the trial court's decision on a motion for a protective
  order; this was the technique used in Kearney.    But if the
    nonparty deponent fails to take the bait and move for a
    protective order in the trial court, the issuing court must
    make the decision whether discovery may be had, and its
    scope, since it is the only court with the power to order
    enforcement.
    Other courts have recently adopted this reading of the
    Advisory Committee Note.  See, e.g., Orthopedic Bone Screw
    Prods., 79 F.3d at 48 (reading the Note's use of "remit" as
    referring simply to power in court that issued subpoena to
    stay motion by nonparty witness for protective order and
    defer to decision of the district court where discovery
    proceedings in the underlying action were pending under 28
    U.S.C.  1407); Cent. States, Southeast & Southwest Areas
    Pension Fund v. Quickie Transport Co., 174 F.R.D. 50, 51 n.1
    (E.D. Pa. 1997); Kearney, 172 F.R.D. at 383.  It appears
    also to have been the understanding of courts and
    commentators nearer the time of the 1970 Advisory Note.  See
    Socialist Workers Party v. Att'y Gen., 73 F.R.D. 699, 701
    (D. Md. 1977) (quoting 1976 Moore's Federal Practice).  
    As this reading fits so easily with the text of the
    rules, it seems more compelling than respondent's proposed
    finding of a transfer power that is bereft of linguistic
    support in the rules.  See United States v. Carey, 120 F.3d
    509, 512 (4th Cir. 1997) ("But the Advisory Committee Note
    is not the law; the rule is.  Accordingly, if the Advisory
    Committee Note can be read in two ways, we must read it, if
    we consult it at all, in a manner that makes it consistent
    with the language of the rule itself.").
    The district court's reliance on the Advisory Committee
    Note to Rule 26(c) is not, to be sure, unique.  In dicta
    other courts have suggested that the Note implies the
    existence of a transfer power for all discovery disputes
    involving nonparties, including motions to quash subpoenas. 
    See, e.g., In re Digital Equipment Corp., 949 F.2d 228, 231
    (8th Cir. 1991); Petersen v. Douglas County Bank & Trust
    Co., 940 F.2d 1389, 1390 (10th Cir. 1991).  But "if the rule
    and the note conflict, the rule must govern."  Carey, 120
    F.3d at 512.  
         In short, the idea that a district court may transfer a
    motion to quash a subpoena rests on a misreading of a non-
    authoritative source that relates to a different rule.  The
    Rules of Civil Procedure themselves do not provide any basis
    for such authority, and district courts have no inherent
    powers to transfer.  See Hicks v. Duckworth, 856 F.2d 934,
    936 (7th Cir. 1988); cf. Lexecon Inc. v. Milberg Weiss
    Bershad Hynes & Lerach, 1998 WL 85319, at *6-9 (U.S. 1998). 
    Because the district court here exceeded its authority,
    mandamus will issue to vacate the transfer order.
                                       So ordered.
        Karen LeCraft Henderson, Circuit Judge, concurring:
         I agree with the majority that the district court's decision to transfer the
    cross-motions to quash and to compel compliance with the subpoena is reviewable
    on petition for mandamus. See Hicks v. Duckworth, 856 F.2d 934, 935 (7th Cir.
    1988) ("The use of mandamus (28 U.S.C.  1651(a)) to correct an erroneous
    transfer out of circuit has been approved.  It is difficult to see how such an error
    could be corrected otherwise.").  I also agree that the district erred in transferring
    the motions to the Eastern District of Arkansas.  I stop short, however, of deciding,
    as does the majority, that a district court lacks authority to order a transfer. 
    Assuming such authority exists, it should be reserved for the extraordinary,
    complex case in which the transferee court is plainly better situated to resolve the
    discovery dispute.  This is not that case. The respondent has made no showing that
    the reasons cited for quashing the subpoena--that it is overbroad and covers
    information that is privileged, not relevant to the underlying lawsuit and sought
    "for improper purposes"--cannot be readily assessed by the district court here as
    such arguments routinely are.  See, e.g., Linder v. Department of Defense, 133
    F.3d 17, 24 (D.C. Cir. 1998); Food Lion, Inc. v. United Food & Commercial
    Workers Int'l Union, 103 F.3d 1007, 1013-14 (D.C. Cir. 1997).  In any event, I
    believe the court abused its discretion in attempting to transfer the motions here
    without inquiring into the personal jurisdiction of the transferee court over the
    petitioner, a sine qua non for deciding the discovery motions.   See In re Sealed
    Case, 832 F.2d 1268, 1270 (D.C. Cir. 1987) (reversing district court order
    compelling production of companies' records where Independent Counsel failed to
    make "the requisite showing" that district court "has personal jurisdiction over
    each of the companies whose records it seeks"); but cf. EEOC v. National
    Children's Center, 98 F.3d 1406, 1410-11 (D.C. Cir. 1996) (reversing as "abuse of
    discretion" district court decision to seal portion of record because court did not
    "articulate its reasons for electing to seal" and remanding "so that the court can
    further explain its decision").  I therefore agree with the majority that the district
    court's order should be vacated.