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H.I.S.C, Inc. v. Franmar International Importers, Ltd.

United States District Court, S.D. California

May 7, 2018

H.I.S.C, INC. et al., Plaintiffs,


          Hon. William V. Gallo United States Magistrate Judge

         Pending before the Court are two sets of discovery disputes about (1) four document and deposition subpoenas that Defendants served upon non-party QVC (Doc. Nos. 87, 88, 91 & 92) and (2) Defendants' responses to multiple requests for production of documents (“RFPs”) (Doc. Nos. 78 & 79). The Court convened a telephonic discovery conference on May 4, 2018.

         As explained below, Plaintiffs' request to quash the QVC subpoenas and for a protective order to prevent the depositions is DENIED. However, as set forth in the Conclusion of this Order, the Protective Order the Court previously entered in this case is amended to include QVC.

         With respect to the RFPs dispute, the Court previously found the parties failed to present the dispute in a timely manner in violation of the Court's Civil Chambers Rules and accordingly for the most part declined to entertain the dispute. However, with respect to RFPs 55, 56, 58, and 59, Defendants are ordered to take additional action as set forth in the Conclusion of this Order.[1]

         I. Pertinent Background

         QVC, Inc. is a third party television network that facilitated the sales of the competing brooms in this case. During a deposition in February 2018, opposing counsel agreed on the record that they would not reach out to each other's business contacts without first contacting and discussing the matter with each other. (Doc. No. 88-1 at 4-5.) On April 12, 2018, Defendants served four subpoenas upon QVC without reaching out to Plaintiffs' counsel to discuss the matter as previously agreed. Defendants served one subpoena duces tecum and three deposition subpoenas to QVC employees. The depositions were originally noticed for May 9, 2018 in Philadelphia, PA, but defense counsel and counsel for QVC have been working to find an alternate date that is more convenient for the QVC employees. Defendants represent that all of the depositions can be completed in one day.

         To coordinate the documents and deposition subpoenas, defense counsel contacted QVC's in-house counsel, who has fully cooperated with Defendants. QVC counsel offered the QVC employees for deposition, proposed several alternate dates when all three employees would be available, and requested that the Protective Order in this case be modified to include QVC. (Doc. No. 87 at 3.) QVC counsel also suggested that rather than each subpoenaed employee producing documents, Defendants could depose QVC's custodian of records. (Id. at 3-4.) Defense counsel agreed and withdrew the pending document subpoenas and issued a subpoena upon QVC's document custodian. (Id.) Defense counsel then reached out to Plaintiffs' counsel, who then suggested that the records custodian deposition could be avoided-Plaintiffs would produce the documents in Defendants' document subpoena and stipulate to their authenticity. (Doc. No. 88 at 9.) In exchange, Plaintiffs asked that all of the pending subpoenas, including the deposition subpoenas, be withdrawn. (Id.) Although Defendants agreed with the proposal to avoid the custodian's deposition, they could not agree to withdraw the deposition subpoenas. (Doc. No. 87 at 4.)

         II. Discussion

         A. The Court Lacks Jurisdiction to Quash the Subpoenas

         The first and most fundamental reason the Court declines to quash the subpoena duces tecum is its lack of authority to do so.

         The provision in Rule 45 that permits the quashing of a subpoena has gone through various iterations over the years. It initially did not specify which court had the authority to quash a subpoena but later specified that the “issuing court” had such power. SEC v. CMKM Diamonds, Inc., 656 F.3d 829, 831 (9th Cir. 2011). That provision changed again in 2013, when Rule 45 was amended to vest quashing authority in the “court for the district where compliance is required.” Fed.R.Civ.P. 45(d)(3)(A), (B). The issuing court does not have authority to quash a subpoena unless, of course, compliance is also required in that the same district where that court sits. Woods ex rel. U.S. v. SouthernCare, Inc., 303 F.R.D. 405, 406 (N.D. Ala. 2014) (Under the federal rules, as amended in 2013, “a subpoena must be issued by the court where the underlying action is pending, but challenges to the subpoena are to be heard by the district court encompassing the place where compliance with the subpoena is required.”); Agincourt Gaming, LLC v. Zynga, Inc., No. 14 CV 0708, 2014 U.S. Dist. LEXIS 114348, 2014 WL 4079555, at *3 (D. Nev. Aug. 15, 2014) (“Under the current version of [Rule 45], when a motion to quash a subpoena is filed in a court other than the court where compliance is required, that court lacks jurisdiction to resolve the motion.”); see also Chambers v. Whirlpool Corp., No. SACV 11-1733, 2016 WL 9451360, at *3 (C.D. Cal. Aug. 12, 2016) (same).

         Here, this Court is the issuing Court. The Eastern District of Pennsylvania, which encompasses the city of Philadelphia is the district in which compliance has been designated by all of the disputed subpoenas. Accordingly, this Court lacks jurisdiction to quash the subpoenas. Accord Victorino v. FCA U.S. LLC, No. 16CV1617-GPC(JLB), 2018 U.S. Dist. LEXIS 13241, at *3 (S.D. Cal. Jan. 25, 2018); Uehling v. Millennium Labs., Inc., No. 16CV2812-L(MDD), 2018 U.S. Dist. LEXIS 3950, at *4 (S.D. Cal. Jan. 9, 2018); Youngevity Int'l, Corp. v. Smith, No. 16CV704-BTM(JLB), 2017 U.S. Dist. LEXIS 206797, at *13 (S.D. Cal. Dec. 15, 2017). Plaintiffs' contention that they have sufficient interest in the subpoenas is meritless in the context of jurisdiction analysis. As discussed below, a party's interest is a matter of standing, not jurisdiction, and Rule 45 clearly vests jurisdiction in another court.

         B. Plaintiffs Lack Standing to Challenge the Subpoena Duces Tecum

         1. The ...

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