ORDER RE: DISCOVERY DISPUTE

SUSAN ILLSTON, District Judge.

Now pending before the Court is the joint discovery letter filed by defendants Sequenom, Inc. and Sequenom Center for Molecular Medicine, LLC (collectively "Sequenom") and non-party Ariosa Diagnostics, Inc. ("Ariosa"). Docket No. 189. In the letter, Ariosa requests that the Court quash a deposition subpoena that Sequenom served upon Ariosa on May 6, 2014. Id. at 1. For the reasons set forth below, the Court GRANTS Ariosa's request to quash the subpoena.

BACKGROUND

This is a patent infringement action. Plaintiffs Verinata Health, Inc. and the Board of Trustees of the Leland Stanford Junior University (collectively "Verinata") accuse Sequenom's Harmony™ Prenatal Test of infringing U.S. Patent No. 7,888,017 ("the `017 patent"), U.S. Patent No. 8,008,018 ("the `018 patent"), and U.S. Patent No. 8,195,415 ("the `415 patent").1 Docket No. 34, First Amended Complaint. On May 6, 2014, Sequenom served a deposition subpoena on non-party Ariosa pursuant to Federal Rule of Civil Procedure 45, requesting that Ariosa produce a 30(b)(6) witness who is able to testify to nine topics related to a variety of financial matters. Docket No. 189-1.

LEGAL STANDARD

"[P]re-trial discovery is ordinarily `accorded a broad and liberal treatment.'" Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993). "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Pursuant to Federal Rule of Civil Procedure 45(a)(1)(B), a party may serve a subpoena upon a non-party, commanding the non-party to attend a deposition. Fed. R. Civ. P. 45(a)(1)(B). Upon receipt of the subpoena, the non-party may file a motion to quash or modify the subpoena. Fed. R. Civ. P. 45(d)(3); S.E.C. v. CMKM Diamonds, Inc., 656 F.3d 829, 832 (9th Cir. 2011). Under Rule 45(d)(3)(A)(iv), a district court must quash or modify a subpoena that "subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A)(iv). Further, under Rule 45(d)(3)(B), a district court may quash or modify a subpoena if the subpoena requires "(i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party."

The party seeking to quash a subpoena bears the "burden of persuasion." In re Apple Inc., No. MISC 12-80013 JW, 2012 U.S. Dist. LEXIS 66669, at *4 (N.D. Cal. May 2, 2012); Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005). A district court "has wide discretion in controlling discovery" and "will not be overturned unless there is a clear abuse of discretion." Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).

DISCUSSION

Ariosa contends, and Sequenom does not appear to contest, that the subpoena seeks highly sensitive confidential information, including information related to Ariosa's sales, marketing, pricing strategies, and its view of the market. Therefore, under Rule 45(d)(3)(B)(i), the Court may quash or modify the subpoena. In addition, portions of the subpoena appear to require that Ariosa disclose unretained expert opinions. For example, the subpoena seeks "Ariosa's view of the composition and dynamics of the market in which Ariosa participates with its Harmony Prenatal Test" and seeks "Ariosa's understanding as to how its plans and policies compare to those of Natera, Verinata, or Sequenom." Docket No. 189-1 at 2-3. Therefore, under Rule 45(d)(3)(B)(ii), the Court may quash or modify these portions of the subpoena.

Once the non-party shows that the requested information falls under Rule 45(d)(3)(B)(i) or (ii), "the burden shifts to the requesting party to show a `substantial need for the testimony or material that cannot be otherwise met without undue hardship; and [to] ensure[] that the subpoenaed person will be reasonably compensated.'" In re Subpoena of DJO, LLC, 295 F.R.D. 494, 497 (S.D. Cal. 2014) (quoting Fed. R. Civ. P. 45(d)(3)(C)(i),(ii)); accord Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 425 n.1 (Fed. Cir. 1993). Moreover, the information requested in the subpoena "should be narrowly drawn to meet [that] specific need[] for information." Convolve, Inc. v. Dell, Inc., No. C 10-80071 WHA, 2011 U.S. Dist. LEXIS 53641, at *7 (N.D. Cal. May 9, 2011). Here, Sequenom has failed to show a substantial need for the requested information. Sequenom argues that the requested financial information is relevant to rebutting Verinata's assertion that it is entitled to lost profits.2 Docket No. 189 at 4-5. Sequenom contends that certain Verinata witnesses have made statements at their depositions regarding Ariosa, which Sequenom does not posses the necessary evidence to rebut. Id. at 4. Although it appears that the requested information may be relevant to the determination of lost profits, Sequenom has failed to explain why this specific information requested in the subpoena is needed to rebut Verinata's lost profits case, particularly in light of the fact that Ariosa has already produced to Sequenom several confidential financial documents pursuant to an earlier served document subpoena. Sequenom refers to certain statements made by Ariosa witnesses, but Sequenom fails to provide an explanation of how the requested deposition topics relate to those statements and why the financial documents it has already obtained from Ariosa are insufficient to rebut those statements.3

Moreover, the primary information that Sequenom appears to seek would require Ariosa to act as an unpaid expert witness for one of its competitors. For example, the first two topics mentioned by Sequenom in the discovery letter are: "(1) whether Sequenom's sales would have gone to Ariosa, Verinata, or others based on Ariosa's unique understanding of the market and discussions with customers; (2) whether other tests, including Ariosa's Harmony Test, which are not accused of infringing the Patents-in-Suit, are acceptable substitutes based on Ariosa's experience in the marketplace. . . ." Docket No. 189 at 4-5 (emphasis added). The Court concludes that this is an improper use of a non-party deposition subpoena. See Convolve, 2011 U.S. Dist. LEXIS 53641, at *6 ("The instant subpoena effectively requires non-party Seagate to act as an unpaid expert witness in support of defendants' defense against Convolve in the Texas litigation. This is an abuse of the subpoena power."); see also American Standard, Inc. v. Pfizer, Inc., 828 F.2d 734, 741 (Fed. Cir. 1987) ("Courts have presumed that disclosure to a competitor is more harmful than disclosure to a noncompetitor."). Accordingly, the Court grants Ariosa's request to quash the subpoena.4

CONCLUSION

For the foregoing reasons, the Court GRANTS Ariosa's request to quash the May 6, 2014 subpoena. This Order resolves Docket No. 189.

IT IS SO ORDERED.