The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER REGARDING DISCOVERY DISPUTE [Dkt. No. 4.]
On December 30, 2008, Plaintiff LG Display filed a motion to compel production of documents and attendance at deposition by third-party Sony Electronics, Inc. (Dkt. No. 4.) On January 13, 2009, third party Sony Electronics, Inc., submitted a response in opposition to Plaintiff's motion. (Dkt. No. 10.) On January 16, 2009, Plaintiff submitted a reply. (Dkt. No. 11.)
The Court has thoroughly reviewed the parties' papers and addresses each issue below.
This case stems from several patent infringement cases consolidated in the District of Delaware concerning twenty-three patents related to liquid crystal display ("LCD") products and methods of manufacturing. Pl.'s Mem. of P. & A. in Supp. of Mot. to Compel at 1.
On June 23, 2008, Plaintiff served its Subpoena on third party Sony Electronics. Pl.'s Mem. of P. & A. in Supp. of Mot. to Compel at 1. That Subpoena sought production of documents and deposition testimony pertaining to Sony Electronics' business relationships with the defendants in the underlying matter. Id. Based upon numerous representations by Sony Electronics that they were investigating responsive information for production, Plaintiff extended the deadline for filing objections multiple times. Id. at 2-3. On August 27, 2008, Sony Electronics served written objections to the Subpoena on Plaintiff. Id. at 3. Plaintiff asserts Sony Electronics has not complied with the Subpoena despite the fact that Plaintiff provided, upon request by Sony Electronics, a protective order. Id. After numerous attempts to obtain the information sought under the Subpoena, Plaintiffs allege they have not received all responsive documents from Sony Electronics. Id. at 6.
Sony Electronics presents three arguments for their purported failure to comply with the Subpoena. See Mem. of P. & A. in Supp. of Third Party Sony Elec.'s Opp. at 2. First, Sony Electronics alleges Plaintiff's documents requests and deposition topics are overly broad and unduly burdensome. Id. Second, Sony Electronics alleges it has made good faith efforts to investigate the documents it may have in its possession and has either produced or will produce those documents which can be located with a reasonable search. Id. Finally, Sony Electronics alleges the majority of documents Plaintiff's Subpoena seeks are not within its possession, custody or control. Id.
In support of its first argument, Sony Electronics asserts Plaintiff's requests are irrelevant, available from other sources, overly broad, impose an undue burden, the eight-year time period covered by the Subpoena request imposes a great burden, and the Subpoena fails to describe many of the documents with reasonable particularity. Mem. of P. & A. in Supp. of Third Party Sony Elec.'s Opp. at 2. In support of its third argument, Sony Electronics asserts much of the information sought by Plaintiff is not in Sony Electronics' possession, custody, or control, but instead in the possession, custody or control of its parent company. See id. at 5-8. Further, those documents that are available are not reasonably accessible and would take considerable time and expense to search. Id. at 6.
Federal Rule of Civil Procedure 45 governs discovery of non-parties by subpoena. See Fed. R. Civ. P. 45. If an objection is made, the party serving the subpoena is not entitled to the documents at issue but may, upon notice to the person commanded to produce, seek an order to compel the production. Fed. R. Civ. P. 45 (c)(2)(B). The scope of discovery through a subpoena is the same as that applicable to Federal Rule of Civil Procedure and other discovery rules. See Fed. R. Civ. P. 45 Advisory Committee's note to the 1970 Amendments. While Rule 45 does not include relevance as an enumerated reason for quashing a subpoena, it is well settled that the scope of discovery under a subpoena is the same as the scope of discovery under Federal Rules of Civil Procedure 26(b) and 34. As such, a court must examine whether a request contained in a subpoena duces tecum is overly broad or seeks irrelevant information under the same standards set forth in Rule 26(b) 2 and as applied to Rule 34 requests for production. See Fed. R. Civ. P. 45(d)(1) Advisory Committee's note to the 1970 Amendment ("the changes make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules.")
The Court begins by noting that Sony Electronics has created prejudice on Plaintiff by delaying the filing of their objections. In reliance on Sony Electronics' numerous representations to Plaintiff, Plaintiff repeatedly extended the date for the filing of objections. This motion comes now before the Court on the eve of Plaintiff's discovery deadline.
To the extent Sony Electronics is failing to comply with Plaintiff's Subpoena on the ground that the information sought by Plaintiff is irrelevant, the Court disagrees. Information as to Sony Electronics' interactions with the defendants in the underlying action is directly relevant to Plaintiff's inducement and ...