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Realtime Data, LLC D/B/A Ixo v. Compel Metropcs Texas

May 25, 2012


The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge


Before the Court is Plaintiff's motion to compel a third-party, Ortiva Wireless ("Ortiva"), to comply with a subpoena for testimony and a subpoena for documents issued pursuant to Fed.R.Civ.P. 45. (Doc. No. 1). The motion was filed on April 27, 2012. Ortiva responded on May 18, 2012. (Doc. No. 11). With leave of Court, Plaintiff replied on May 23, 2012. (Doc. No. 16). Jurisdiction is proper in this Court as the subject subpoenas were issued here. See Rule 45(c)(3)(A).


The underlying lawsuit is pending in the United States District Court for the Eastern District of Texas and carries case number 6:10-cv-00493-LED. It is a patent infringement action by Plaintiff against a number of wireless communication companies including Sprint Nextel Corporation ("Sprint"). On July 7, 2011, Plaintiff caused a subpoena duces tecum to be issued in this Court to Ortiva pursuant to Rule 45. (Doc. No. 1-3, Exh. 4). Although documents have been produced, Plaintiff and Ortiva are now at odds over whether additional production is required. As discussed below, Plaintiff's motion to compel compliance with the subpoena duces tecum is GRANTED IN PART AND DENIED IN PART.

On March 6, 2012, Plaintiff caused a second subpoena to be issued to Ortiva in this Court pursuant to Rule 45. This subpoena requires Ortiva to designate one or more persons to provide testimony in particularly described matters. See Fed.R.Civ.P. 30(b)(6). (Doc. No. 1-4, Exh. 14). Ortiva has not objected to this subpoena and has not refused to make the appropriate designations and have one or more person appear in connection with the subpoena. (Doc. No. 11 at 13). Accordingly, the Court finds that there is no dispute regarding the March 6, 2012, subpoena. Plaintiff's motion to compel compliance with the deposition subpoena is DENIED as premature.


Legal Standard

The Federal Rules of Civil Procedure generally allow for broad discovery, authorizing parties to obtain discovery regarding "any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Also, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id. Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence," and need not be admissible at trial to be discoverable. Id. District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Similarly, district courts have broad discretion to limit discovery where the discovery sought is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(C). Limits also should be imposed where the burden or expense outweighs the likely benefits. Id.

In addition to relevance, Rule 45 imposes a requirement upon the party or attorney issuing the subpoena to "take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Rule 45(c)(1). In conducting this analysis, "non-party status is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue." Whitlow v. Martin, 263 F.R.D. 507, 512 (C.D. Ill. 2009). In Schaaf v. SmithKline Beecham Corp., 233 F.R.D. 451, 453 (E.D.N.C. 2005), the district court explained that "in the context of evaluating subpoenas issued to third parties, a court 'will give extra consideration to the objections of a non-party, non-fact witness in weighing burdensomeness versus relevance.'" (citation omitted).

With that backdrop, the Court will proceed to the merits of the dispute regarding the subpoena duces tecum.

The Merits

The underlying dispute involves allegations that the Defendants infringed Plaintiff's patents by using certain data compression and data acceleration technology in their communication networks. In connection with this motion, Plaintiff asserts that defendant Sprint deployed technologies obtained from Ortiva in its network. Plaintiff claims, in conclusory fashion, that it must obtain from Ortiva deep technical data, including source code, in connection with proving its infringement case against Sprint. Plaintiff asserts that the requested documents deal directly with the various data compression products from Ortiva utilized in the Sprint network and these products, when utilized in the Sprint network by Sprint, allegedly infringe Plaintiff's patents. (Doc. No. 1-1 at 6). There is no discussion regarding how the use of Ortiva technology would tend to prove that Sprint infringed Plaintiff's patents. Ortiva is not a party and it has not been suggested that Ortiva has infringed Plaintiff's patents. Ortiva, however, has not challenged the subpoena on grounds of relevance, relying instead primarily on the burden imposed in producing its source code.

1. Request No. 1

Plaintiff seeks Ortiva documents "sufficient to show the features and functionality of each Compression Server product or service provided to or used by any Defendant." (Doc. No. 1-3, Exh. 4 at 5). Ortiva claims to have produced responsive documents. Plaintiff claims that the responses are insufficient and has provided a list of issues that it would like addressed. (Doc. No. 1-1 at 8). The Court finds that the detailed and technical information requested by Plaintiff in its list goes well beyond its demand for documents "sufficient to show the features and functionality" of Ortiva's products used by Defendants. The term "features and functionality," the Court ...

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