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Genus Lifesciences Inc. v. Lannett Co., Inc.

United States District Court, N.D. California

December 30, 2019

GENUS LIFESCIENCES INC., Plaintiff,
v.
LANNETT COMPANY, INC., et al., Defendants.

          ORDER GRANTING MOTION TO QUASH SUBPOENA; DENYING AS MOOT MOTION TELEPHONIC APPEARANCE AND FOR PERMISSION FOR ELECTRONIC CASE FILING Re: Dkt. Nos. 87, 89, 90

          William H. Orrick United States District Judge

         INTRODUCTION

         Non-party Michael Singer moves to quash a subpoena issued by plaintiff Genus Lifesciences Inc. (“Genus”) to produce documents relating to Singer's former employment with defendant Lannett Company Inc. (“Lannett”). Singer requests that the subpoena be quashed because it would result in a significant expense, could subject him to sanctions from Lannett for producing privileged or confidential information, and is unduly burdensome because the requested documents are also in Lannett's possession. Genus has not requested the documents from Lannett. I agree with Singer, particularly regarding the burden Genus seeks to impose on him before seeking the same documents from a party to the litigation, and GRANT his motion to quash. His subsequent motions for telephonic appearance and permission for electronic case filing are DENIED as moot.

         BACKGROUND

         I. PROCEDURAL BACKGROUND

         Genus sued defendants, competitors in the market of cocaine hydrochloride nasal spray, for falsely advertising, marketing and promoting their product and unfairly competing with it in ways that violate the law. See First Amended Complaint [Dkt. No. 54]. On September 12, 2019, Genus served a document subpoena on non-party Michael Singer, a former salesperson for defendant Lannett who specialized in marketing and selling Lannett's products. See Declaration of Jason N. Haycock in Support of Plaintiff Genus Lifesciences Inc.'s Response to Michael Singer's Motion to Quash Subpoena or for Protective Order (“Haycock Decl.”) [Dkt. No. 93] ¶ 3 & Ex. 1 (copy of document subpoena served on Michael Singer).

         After back and forth between the parties, as detailed below, Singer filed this motion to quash subpoena and/or for a protective order. See Notice of Motion and Motion to Quash Subpoena and for Protective Order and Memorandum of Points and Authorities in Support of Motion for Protective Order (“Mot.”) [Dkt. No. 87]. Although his motion was not noticed for a hearing date, Singer requests telephonic appearance. Dkt. No. 89. Because Singer is proceeding pro se, he also seeks permission for electronic case filing. See Dkt. No. 90.

         Genus responded to Singer's motion on October 29, 2019. See Plaintiff Genus Lifesciences, Inc.'s Brief in Response to Michael Singer's Motion to Quash or for Protective Order (“Oppo.”) [Dkt. No. 92]. Lannett has not filed a response to this motion.

         II. FACTUAL BACKGROUND

         Genus's document subpoena requests three categories of documents: (i) agreements Singer has, or had in the past, with Lannett, including employment agreement(s); (ii) promotional literature, advertisements, and training materials related to cocaine hydrochloride; and (iii) communications with Lannett, doctors, pharmacists, surgery centers, or other customers related to cocaine hydrochloride. Haycock Decl., Ex. 1.

         On September 24, 2019, Singer acknowledged receipt of the subpoena and proposed a plan to respond. See Haycock Decl., Ex. 2 (copy of letter from Singer to Genus); Affidavit of Michael Singer Regarding Motion for Protective Order [Dkt. No. 88], Ex. 1 (same). Singer proposed that he would review his files, make a list of documents in his possession, and then submit the list to Genus and Lannett. Id. He requested that Genus and Lannett review the list to determine which documents should be produced under the Protective Order. Id. He requested $0.45 per copy and $250 per hour for his time. Id.

         On September 28, 2019, Genus responded, providing Singer with more time to comply with the document subpoena, agreeing to compensate him up to $500 in photocopying costs and $1, 000 for his time, and offering to designate all produced documents as “Highly Confidential” under the Protective Order so as to avoid any issue about confidentiality. See Haycock Decl., Ex. 3.

         On September 30, 2019, Singer told Genus he was afraid that Lannett would sue him if he produced the documents in his possession, and reiterated his initial proposal to provide a list of documents to Genus and Lannett so that they could determine what should be produced. Id., Ex. 4. Singer also expressed concerns about Genus's reimbursement caps, stating that “If you cap it, then I will work to the time of the caps and then stop.” Id.

         On October 2, 2019, Lannett informed Genus and Singer that the documents in Singer's possession “may implicate Lannett's attorney-client (or other) privilege.” Haycock Decl., ¶ 7 & Ex. 5. Lannett demanded that it review the documents prior to production “to ensure that privileged documents are not produced.” Id. Lannett suggested that Genus instruct Singer “to provide all potentially responsive documents to Lannett's counsel, ” and then Lannett ...


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