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Arnie Geller; et al v. Gunther Von Hagens; et al

April 19, 2012


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

E-filed April 23, 2012



United States District Court For the Northern District of California

This motion to quash a subpoena duces tecum arises out of proceedings in the Middle District of Florida. Plaintiffs Arnie Geller, Hongjin Sui, Dalian Hoffen Bio-technique Co., and 18 Dalian Plastination Co. (collectively "plaintiffs"), sued Gunther Von Hagens, Plastination 19 Company, Inc. ("PCI") and the Institute for Plastination (collectively "defendants") alleging 20 defamation and tortious interference with several European venues where plaintiffs hoped to show 21 their exhibitions. Both the plaintiffs and defendants operate traveling exhibitions of plastinated*fn1 human and animal bodies and body parts. The defendants, and specifically PCI, operate the 23 traveling exhibition called "Body Worlds," while Plaintiffs have acted as suppliers to a rival 24 company called Premier Exhibitions (and plaintiff Geller is Premier Exhibition's former president). 25

Plaintiffs issued subpoenas duces tecum on approximately two dozen museums throughout 26 the United States where defendants held their "Body Worlds" exhibition. One of these museums is 27 San Jose's Tech Museum ("Tech"). The subpoena seeks the production of 44 broad categories of 28 documents. Defendants move to quash the subpoena issued on Tech on two grounds: (1) pursuant to 2 Fed. R. Civ. P. 45 on the grounds that it seeks private and confidential information and (2) pursuant 3 to Fed. R. Civ. P. 26 on the grounds that it is overbroad and seeks irrelevant information. Dkt. No. 1. 4

Tech has filed a notice of joinder in the motion to quash, in which it adopts the arguments made by 5 the defendants, and also argues that the subpoena is unduly burdensome pursuant to Fed. R. Civ. P. 6 Dkt. Nos. 10, 11. 8 court. Dkt. No. 11. The Florida court granted in part and denied in part that motion, making the 10 instant motion to quash partially MOOT. See Dkt. No. 12, Exh. A ("Florida Order"). The Florida court identified three categories of documents requested through the subpoenas: (1) requests 1-8 and 44 are the "Communication Requests," (2) requests 16-18, 20-41 and 43 are the "Provenance 13 quashed the Communication Requests and granted the motion for a protective order as to the 15 45.*fn2 Dkt. No. 6. Plaintiffs opposed the motion. Dkt. No. 9. The defendants and Tech filed replies. 7

Defendants also notified this court that they had moved for a protective order in the Florida Requests," and (3) requests 9-15, 19, 42, and 44 are the "Financial Requests." Id. The Florida Order Financial Requests. It denied the motion with respect to the Provenance Requests because it found 16 them relevant under Fed. R. Civ. P. 26, but expressly noted that it "makes no finding about the 17

Following the Florida court's ruling, plaintiffs and defendants offered conflicting views of what remains for this court to decide on the instant motion. Defendants argue that this court can 20 consider all Rule 45 arguments, while plaintiffs argue that the Florida Order completely disposes of 21 defendants' claims, leaving only Tech's argument of undue burden in support of quashing the 22 subpoena. See Dkt. Nos. 13, 15. Because the Florida Order expressly states that the court did not 23 consider Rule 45 implications at all, this court concludes that the issue before it is the following: 24 whether the Provenance Requests should be quashed under Fed. R. Civ. P. 45 for seeking 25 "confidential and private business information" (as defendants argue) or for being unduly 2 burdensome (as Tech argues). 3


Under Fed. R. Civ. P. 45(a)(1)(C), a nonparty to a civil suit, like the Tech Museum, can be subpoenaed for documents relevant to the suit. Under Fed. R. Civ. P. 26(b)(1), documents are 7 discoverable if they are not privileged and "relevant to any party's claim or defense" or "reasonably 8 calculated to lead to the discovery of admissible evidence." A court may quash an otherwise 9 relevant subpoena for several enumerated reasons, such as: (1) if the subpoena "requires disclosure 10 of privileged or other protected matter, if no exception or waiver applies," (2) if the subpoena "requires disclos[ure of] a trade secret or other confidential research, development, or commercial information," or (3) if the subpoena "subjects a person to undue burden." Fed. R. Civ. P. 13 should not be permitted. Fed. R. Civ. P. 26(b). 15 defendants' Body Worlds exhibitions. The Provenance Requests are requests 16-18, 20-41, and 43 19 in the subpoena. Requests 16-18 seek "any and all documents relating to" the origin of specimens, 20 donation records of specimens, and "the provenance of the specimens" used in Body Worlds 21 exhibitions. Dkt. No. 1, Exh. A ("Subpoena"). Request 20 seeks "any and all documents . . . "which 22 evidence or relate to the human body specimens or human body parts . . . received or used by you 23

[Tech] in the Body Worlds exhibition." Id. Requests 21-41 request documents from various 24 subcategories within the broad scope of Request 20, including (1) specimens from persons who 25 were "tortured, abused or executed;" (2) specimens obtained through a variety of Chinese entities, 26 including medical schools and centers, law enforcement agencies, and at least one private company; 27 (3) specimens "of Asian descent" or "from the Peoples [sic] Republic of China;" (4) documentation 28 detailing where and from whom each body was obtained, what price (if any) was paid, whether there

Based on applicable authority and all moving papers, the court rules as follows.

45(c)(3)(A)(iii)-(B)(i). The burden is on the party resisting discovery to ...

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