On October 2, 2009, defendant Intex Recreation Corp. ("IRC") filed this miscellaneous action and an emergency motion to compel non-party R. Michael West ("West") to appear for deposition on October 20, 2009 and to produce all documents responsive to its subpoena on or before October 13, 2009, and for attorney's fees and costs. Dckt. No. 1. The matter is before the undersigned pursuant to Eastern District of California Local Rule ("Local Rule") 72-302(c)(1). See 28 U.S.C. § 636(b)(1).
The motion, which is made pursuant to Federal Rules of Civil Procedure 37 and 45, indicates that a patent infringement action is currently pending between IRC and Sofpool LLC in the United States District Court for the Eastern District of Texas, Marshall Division, under case number 2:07-CV-097-TJW, and that in connection with that action, IRC is seeking to require West, Sofpool's prosecuting attorney for the patents at issue in the Texas action, to appear for deposition and to produce documents in Sacramento, California. Dckt. No. 2 (Prall Decl.), Exs. B1, D, N. According to the motion, discovery closes in the Texas action on October 27, 2009. Dckt. No. 1.
Rule 37(a)(2) provides that "[a] motion for an order to a nonparty must be made in the court where the discovery is or will be taken." Because West is not a party to the Texas action and IRC seeks to depose West and require West to produce documents within the Eastern District of California, the motion appears to have been made in the proper court. In light of the upcoming discovery deadline and IRC's request for "emergency" relief, West shall file any opposition to IRC's motion on or before 5:00 p.m. Pacific Standard Time on Wednesday, October 7, 2009. IRC may file a reply thereto on or before 12:00 p.m. (noon) Pacific Standard Time on Thursday, October 8, 2009. If a hearing is held, it will be conducted at 10:00 a.m. Pacific Standard Time on Friday, October 9, 2009. The parties will be permitted to attend that hearing telephonically.
Accordingly, IT IS HEREBY ORDERED that:
1. West shall file any opposition to IRC's motion on or before 5:00 p.m. Pacific Standard Time on Wednesday, October 7, 2009;
2. IRC may file a reply thereto on or before 12:00 p.m. (noon) Pacific Standard Time on Thursday, October 8, 2009;
3. If a hearing is held, it will be conducted at 10:00 a.m. Pacific Standard Time on Friday, October 9, 2009 in Courtroom No. 25; and
4. IRC is directed to serve a copy of this order on plaintiff Sofpool LLC, and file a proof of service thereof, on or before Wednesday, October 7, 2009.
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