United States District Court, N.D. California, San Jose Division
ORDER RE MOTIONS TO TRANSFER DISCOVERY DISPUTES Re
R.LLOYD UNITED STATES MAGISTRATE JUDGE.
Industries, Inc. (PPG) filed suit in the U.S. District Court
for the Western District of Pennsylvania for alleged unlawful
theft, disclosure, and use of its trade secrets. According to
PPG, Thomas Rukavina (a former PPG employee) conspired with
the defendants to steal and exploit PPG's proprietary
information and research and development technologies.
Rukavina was arrested and charged with criminal theft of
trade secrets, but died shortly afterward. This court is told
that Rukavina left everything to his brother, Robert
Rukavina, who is also the executor of Rukavina's estate.
subsequently initiated its civil trade secrets lawsuit in the
Western District of Pennsylvania. PPG released Rukavina's
estate in exchange for an affidavit signed by Robert. In that
affidavit, Robert Rukavina consents to the production of
information relevant to PPG's suit, including
electronically stored information pursuant to 18 U.S.C.
§ 2702(b)(3) and any equivalent federal or state statute
obtained leave from the District Court in Pennsylvania to
conduct early discovery and served several subpoenas in
various districts across the country seeking disclosure of
the contents of emails to and from Thomas Rukavina from
January 1, 2012 to the present. The subpoenaed entities
before this court include Google, Inc. (Google) and Yahoo!,
Inc. (Yahoo), both of whom object to the discovery PPG seeks.
In sum, Google and Yahoo contend that the Rukavina consent
form does not satisfy either Pennsylvania law or their
company policies concerning deceased subscribers. And, in any
event, it is argued to this court that production is not
permitted under the Stored Communications Act, 18 U.S.C.
§ 2700, et seq.
initiated the instant miscellaneous actions to enforce the
Google and Yahoo subpoenas, requesting first that these
discovery disputes be transferred to the Pennsylvania court
for resolution. Google and Yahoo oppose PPG's motions to
transfer, as well as the motions to enforce the subpoenas.
Upon consideration of the moving and responding papers, as
well as the arguments of counsel, this court grants the
motions to transfer and therefore does not address PPG's
alternate motions to enforce the subpoenas.
the court where compliance is required did not issue the
subpoena, it may transfer a motion under this rule to the
issuing court if the person subject to the subpoena consents
or if the court finds exceptional circumstances.”
Fed.R.Civ.P. 45(f). Here, the subject subpoenas were issued
by the Pennsylvania court. Neither Google nor Yahoo consent
to a transfer. Thus, transfer is appropriate if PPG shows
that exceptional circumstances exist. Fed.R.Civ.P. 45(f)
advisory committee's note to 2013 amendment. “The
prime concern should be avoiding burdens on local nonparties
subject to subpoenas, and it should not be assumed that the
issuing court is in a superior position to resolve
subpoena-related motions.” Id. Transfer may be
warranted, however, “in order to avoid disrupting the
issuing court's management of the underlying litigation,
as when that court has already ruled on issues presented by
the motion or the same issues are likely to arise in
discovery in many districts.” Id.
“Transfer is appropriate only if such interests
outweigh the interests of the non-party served with the
subpoena in obtaining local resolution of the motion.”
aside the parties' arguments as to what may or may not be
suitable or acceptable under Pennsylvania law, there is the
issue of the adequacy of the Rukavina consent under federal
law. On that point, either court is competent to decide that
matter. However, weighing heavily, in this court's
calculus, in favor of transfer is the issuing court's
management of the underlying litigation. This court is told
that Judge Hornak (the judge presiding over the underlying
Pennsylvania action) has asked that all motions challenging
subpoenas issued by PPG be transferred to him. And, indeed,
this court is further informed that a district judge in
Washington state has done just that with respect to a
subpoena dispute with Microsoft. This court has not been told
whether Judge Hornak has ruled on the Microsoft dispute, but
that matter indisputably is or was pending before him.
See Moon Mountain Farms, LLC v. Rural Cmty. Ins.
Co., 301 F.R.D. 426, 429 (N.D. Cal. 2014) (“When
the issuing court has already ruled on issued presented by a
subpoena-related motion, exceptional circumstances exist and
the court of compliance may transfer the motion to the
issuing court.”); see also Costco Wholesale Corp.
v. Crane, No. 16-mc-80189-JSC, 2016 WL 5394115, at *2
(N.D. Cal., Sept. 27, 2016) (“The Court finds that
exceptional circumstances exist because the issues raised by
Costco's motion to compel either have been ruled on by or
are currently pending before [the issuing court].”).
And, notwithstanding the administrative closure of the
Pennsylvania case (apparently temporarily closed while issues
re service of process are sorted out), PPG says it regularly
reports to Judge Hornak (pursuant to his orders) about the
status of service issues as well as pending subpoena
and Yahoo correctly note that discovery disputes ordinarily
are resolved by the court in the district where compliance is
to be made. But this court concludes that avoiding disruption
of Judge Hornak's management of the underlying litigation
is an exceptional circumstance that outweighs the
non-parties' interests in generally what would be the
norm and that transfer will not result in unfair prejudice or
undue burdens. It is not apparent that transfer of these
disputes to Pennsylvania will require any substantive
modifications to the written submissions. Moon Mountain
Farms, LLC, 301 F.R.D. at 430. “Additionally, the
Advisory Committee encourages judges to ‘permit
telecommunications' to minimize travel costs after a Rule
45(f) transfer.” Id (quoting Fed.R.Civ.P. 45
advisory committee's note).
on the foregoing, this court grants PPG's motions to
transfer the present discovery disputes with Google and Yahoo
to the Western District of Pennsylvania.
 PPG's alternate motions to enforce
will be terminated from this ...