ALAN KAY, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court are Petitioner's Amended Motion to Compel Luis Alejandro Velasco to Comply with Properly-Served Subpoena and Incorporated Memorandum of Law ("Am. Mot. to Compel") [3]; Respondent's Memorandum in Opposition to Petitioner's Motion to Compel and in Support of Mr. Velasco's Motion to Quash ("Opp'n to Am. Mot. to Compel") [4]; Respondent's Motion to Quash Subpoena ("Mot. to Quash") [5]; Petitioner's Reply in Support of Amended Motion to Compel Luis Alejandro Velasco to Comply with Properly-Served Subpoena and Incorporated Memorandum of Law ("Reply in Supp. of Am. Mot. to Compel") [6]; Petitioner HT S.R.L.'s Memorandum in Opposition to Respondent's Motion to Quash Subpoena ("Opp'n to Mot. to Quash") [9]; and Respondent's Reply in Support of Respondent Luis Alejandro Velasco's Motion to Quash Subpoena ("Reply in Supp. of Mot. to Quash") [10]. The Amended Motion to Compel was referred to the undersigned for a resolution. (Order [7]; Referral to Magistrate Judge [8]). For the reasons set forth in this Memorandum Opinion, the Court grants in part and denies in part Petitioner's Amended Motion to Compel and denies Respondent's Motion to Quash.
HT S.R.L. ("Petitioner") is an Italian limited liability company with a registered office in Milan, Italy that "provides consultancy and management services for information technology security." (Am. Mot. to Compel 1, Ex. 1B Declaration of Roberto Glavio Tirone ("Tirone Decl.") [3-1] 25 at ¶ 3, Ex. 1C ("Agreement") [3-1] 32). Petitioner's software product, Galileo Remote Control System ("RCS"), allows "undetected monitoring of computer activities[.]" (Am. Mot. to Compel 3; Agreement 32). On March 1, 2012, Petitioner entered into a consultant agreement ("Agreement") with Luis Alejandro Velasco ("Respondent"), who is self-employed and lives and works in Annapolis, Maryland. (Opp'n to Am. Mot. to Compel 1, 3; Agreement 2).
The Agreement assigns various responsibilities to Respondent, including promoting RCS and Petitioner. (Am. Mot. to Compel 3; Tirone Decl. ¶ 5; Agreement ¶¶ 1.1-1.7). In exchange for Respondent's work as Petitioner's "U.S. marketing consultant and technical assistant," Petitioner compensated Respondent $80,000 each year. (Opp'n to Mot. to Quash 1; Agreement ¶ 4.1). Petitioner drafted the Agreement, which includes a non-compete clause and a confidentiality clause prohibiting Respondent from disclosing confidential information regarding Petitioner's products
On March 17, 2015, Petitioner brought a civil suit ("Italian Proceeding") against Respondent in the Court of Milan, Italy ("Court of Milan") alleging Respondent violated the non-compete clause of the Agreement. (Am. Mot. to Compel 1, 4, Ex. 1D ("Italian Complaint") [3-1] 39-64; Tirone Decl. ¶ 9). The Italian Complaint alleges that Respondent represented competitors and collaborated in developing, marketed, and sold a competitor's software while under contract with Petitioner, thus violating the Agreement.
On April 20, 2015, Petitioner issued the subpoena, commanding Respondent to testify at a deposition on May 11, 2015 at 10:00 a.m. at Petitioner's counsel's office in Washington, D.C. and produce documents at the deposition.
Respondent retained counsel on May 11, 2015 and she assumed responsibility of communicating with Petitioner. (Opp'n to Am. Mot. to Compel 3). Respondent served correspondence on May 15, 2015, elaborating on his objections and explaining why the discovery was improper. (Am. Mot. to Compel Ex. 6[3-6]; Opp'n to Am. Mot. to Compel 3 Ex. E[4-1] 2527). On May 19, 2015, the parties exchanged a series of e-mails. (Am. Mot. to Compel 6; Opp'n to Am. Mot. to Compel 3-4). Petitioner explained that the objections were untimely pursuant to Fed. R. Civ. P. 45(d)(2)(B), offered to accommodate Respondent by deposing him in Annapolis, Maryland, and proposed a meet and confer half an hour before the deposition. (Am. Mot. to Compel Ex. 7[3-7]; Opp'n to Am. Mot. to Compel 3 Ex. F[4-1] 29-30). Petitioner also warned that if Respondent failed to appear for his deposition, Petitioner would file a motion to compel and move for attorneys' fees and costs. (Am. Mot. to Compel Ex. 7; Opp'n to Am. Mot. to Compel 3, Ex. F 30). Respondent replied, disagreeing with Petitioner's position on timeliness of the objections and indicating a new subpoena would be required if the location of the deposition changed. (Am. Mot. to Compel Ex. 8[3-8]). Petitioner responded that the deposition would go forward in the District of Columbia as set forth in the Subpoena and reiterated availability to meet and confer before the deposition. (Am. Mot. to Compel Ex. 9[3-9]). Respondent replied that Respondent would not appear for the deposition and counsel was open to discussing the discovery Petitioner sought. (Am. Mot. to Compel Ex. 10 [3-10]; Opp'n to Am. Mot. to Compel 3, Ex. G[41] 34).
On May 20, 2015, the parties exchanged e-mails and scheduled a telephonic meet and confer. (Opp'n to Am. Mot. to Compel 3 Ex. G 32-33). Respondent did not appear for his deposition on May 21, 2015 or produce the documents requested in the Subpoena. (Am. Mot. to Compel 6). At about 2:00 p.m. on May 21, 2015, the parties had a telephonic meet and confer but were unable to resolve their dispute. (Am. Mot. to Compel 6). Respondent proposed two alternatives to the Subpoena: (1) waiting to see whether the Court of Milan ordered discovery or (2) both parties "agree to engage in discovery beyond what is available under Italian law, to allow Mr. Velasco to similarly issue document requests to HT and take depositions of key HT employees." (Opp'n to Am. Mot. to Compel 4 Ex. H[4-1] 39).
The following day, Petitioner filed a Motion to Compel Compliance with the Subpoena.
Pursuant to Fed. R. Civ. P. 45(d)(2)(B), a party receiving a subpoena to produce documents or tangible things may object to the subpoena "before the earlier of the time specified for compliance or 14 days after the subpoena is served." Upon receiving objections, the serving party may then move the court for an order compelling production after noticing the commanded party. Id. The motion must be filed in "the court for the district where compliance is required[.]" Fed. R. Civ. P. 45(d)(2)(B)(i).
Pursuant to 28 U.S.C. § 1782(a), a district court has discretion to "order [a person residing in its district] to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal[.]" This statute authorizes a broad scope for federal courts to assist foreign proceedings, but it does not require discovery assistance. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247-48, 264, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (citing 28 U.S.C. § 1782(a)) (noting that the 1948 amendments to 28 U.S.C. § 1782(a) "substantially broadened the scope of assistance"). Thus, the court must first determine whether it has the authority to permit or enforce the request and then whether it should exercise its discretion to permit or enforce the request. See Lazaridis v. Int'l Ctr. for Missing & Exploited Children, Inc., 760 F.Supp.2d 109, 112 (D.D.C.2011) (citing Norex Petroleum Ltd. v. Chubb Ins. Co. of Canada, 384 F.Supp.2d 45, 49 (D.D.C.2005)).
Pursuant to Fed. R. Civ. P. 45(d)(3), the court where compliance is required may quash or modify a subpoena. If the commanding party "timely" moves the court, the court "must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A). Quashing or modifying a subpoena is permitted when a subpoena requires "(i) disclosing a trade secret or
Petitioner argues that this Court should compel Respondent to comply with the Subpoena. (Am. Mot. to Compel 7). First, Judge Motz of the District Court of Maryland reviewed the relevant issues set forth in the Application; Judge Motz granted the Application, authorizing the issuance of the Subpoena; and Respondent subsequently agreed to appear at his deposition. (Am. Mot. to Compel 7; Reply in Supp. of Am. Mot. to Compel 5). Second, Petitioner argues that Respondent's objections set forth in the May 15, 2015 correspondence are meritless. (Am. Mot. to Compel 7-8). Third, Petitioner argues that Respondent did not timely file his Motion to Quash
Respondent opposes Petitioner's Amended Motion to Compel and moves this Court to Quash the Subpoena. (Mot. to Quash; Opp'n to Am. Mot. to Compel). First, Petitioner failed to "make a good faith effort to resolve this dispute, or even review basic facts[.]" (Opp'n to Am. Mot. to Compel 4). Second, Petitioner's original Motion to Compel "falsely stated" Respondent failed to object within fourteen days of service pursuant to Fed. R. Civ.P. 45. (Opp'n to Am. Mot. to Compel 5). Third, Petitioner filed the Amended Motion to Compel in response to Respondent's correspondence
As a preliminary matter, the Court notes that the Amended Motion to Compel complies with Fed. R. Civ. P. 37 and the Local Rules of the United States District Court for the District of Columbia. Local Civil Rule 7(m) sets forth a "duty to confer" with opposing counsel in a good-faith effort when a party anticipates filing a nondispositive motion to determine whether there is opposition and whether the scope can be narrowed. The motion must include "a statement that the required discussion occurred, and a statement as to whether the motion is opposed." Id. Similarly, Fed. R. Civ. P. 37(a)(1) requires a motion for an order compelling disclosure or discovery to include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Courts have held that conferring with the opposing party is a prerequisite to any successful motion to compel. See U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 235 F.R.D. 521, 529-30 (D.D.C.2006) (denying motion to compel for failure to attempt to meet and confer in good faith prior to filing). Here, the Amended Motion to Compel includes a certification that the parties "conferred in good faith via telephone on May 21, 2015" but were unable to reach a resolution. (Am. Mot. to Compel 1, 12). Petitioner subsequently filed a Motion to Compel the following day.
Respondent does not refute that the parties conferred on May 21, 2015, but he asserts that Petitioner failed to "make a good faith effort to resolve this dispute" because Petitioner rejected Respondent's May 21, 2015 proposed alternatives to the Subpoena and rushed to file a motion to compel.
A district court has the authority to permit discovery under 28 U.S.C. § 1782(a) when (1) the person from whom discovery is sought resides or is found
Here, Respondent resides in the district of the court in which the Application was made because he resides in Annapolis, Maryland and the United States District Court for the District of Maryland granted the Application. (Application 3; Am. Mot. to Compel 1; Opp'n to Am. Mot. to Compel 1; Order). Second, the discovery sought in the Subpoena is for use in a proceeding before a foreign tribunal because it is for use in the Italian Proceeding. (Am. Mot. to Compel 1-2). Third, the Application is made by an interested party because Petitioner is a party in the Italian Proceeding. (Am. Mot. to Compel 1-2); see also Lancaster Factoring Co. Ltd. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996) (citation omitted) (internal quotations omitted) (noting that the legislative history of 28 U.S.C. § 1782 indicates that "a party to the foreign ... litigation" is an "interested person"). Thus, the District Court for the District of Maryland had authority to grant the Application.
Pursuant to Fed. R. Civ. P. 45(d)(2)(B)(i), a motion to compel must be filed in "the court for the district where compliance is required[.]" Here, the Subpoena states that compliance is required at Petitioner's counsel's office: Arnall Golden Gregory, LLP, 1775 Pennsylvania Ave., NW, Ste. 1000, Washington, District of Columbia 20006. (Subpoena 2). Accordingly, a motion to compel compliance with the Subpoena must be filed in the District of Columbia. Thus, this Court has authority to enforce the Subpoena.
If the court determines it has the authority to permit or enforce the 28 U.S.C. § 1782(a) request, then it must determine whether it should exercise this discretion. See Intel, 542 U.S. at 264-65, 124 S.Ct. 2466; see also Norex, 384 F.Supp.2d at 49 (utilizing factors set forth in Intel to determine whether to grant a motion to compel compliance with a subpoena issued pursuant to 28 U.S.C. § 1782(a)). The court should consider whether permitting discovery furthers the "twin aims" of 28 U.S.C. § 1782(a): "providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts." Intel, 542 U.S. at 252, 124 S.Ct. 2466 (citing Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir.2002)). The Supreme Court has declined "to adopt supervisory rules" and instead identified several factors for consideration without indicating how much weight to give each factor. Id. at 264-65, 124 S.Ct. 2466; see also In Matter of Application of Leret, 51 F.Supp.3d 66, 71 (D.D.C.2014). These factors are (a) whether "the person from whom discovery is sought is a participant in the foreign proceeding"; (b) "the nature of the foreign tribunal"; (c) "the character of the proceedings underway abroad"; (d) "the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance"; (e) whether the "request conceals an attempt to circumvent foreign proof-gathering restrictions
When a 28 U.S.C. § 1782(a) request seeks discovery from a participant in the foreign proceeding, this weighs against permitting discovery because the need for discovery assistance is not as great as if the discovery was sought from a nonparticipant. See Intel, 542 U.S. at 264, 124 S.Ct. 2466 (explaining that "[a] foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence."); see also In Matter of Application of Leret, 51 F.Supp.3d at 71 (upholding magistrate judge's grant of 28 U.S.C. § 1782(a) request primarily because the commanded party was a party to the foreign litigation and he had volunteered "to make himself available for discovery requests in the [foreign court]"); In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 105, 108 (finding Petitioner not entitled to discovery in part because none of the Respondents were a party to the foreign proceeding). Here, Petitioner's request seeks discovery from a party in the Italian Proceeding. (Am. Mot. to Compel 1-2). Thus, this factor weighs against enforcing the Subpoena.
The nature of the foreign tribunal weighs against enforcing discovery if the party seeking the discovery had options in selecting the forum for the foreign proceeding. See In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 106 (finding the nature of the tribunal weighs against granting the petition because Petitioner had options of arbitrating the dispute under different rules, in a different arbitration instruction, or in a court and therefore the court was "reluctant ... to interfere with the parties' bargained-for expectations concerning the arbitration process."). Here, Petitioner did not have options regarding forum or law because the Agreement included choice of law and choice of forum clauses. (Agreement ¶¶ 12.1, 12.2; Opp'n to Am. Mot. to Compel 1). Accordingly, Italian law governs the Agreement and the Court of Milan has exclusive jurisdiction. (Agreement ¶¶ 12.1, 12.2; Opp'n to Am. Mot. to Compel 1). Because Petitioner did not have options in pursuing its claim, the nature of the foreign tribunal weighs in favor of enforcing the Subpoena.
To determine whether the character of the foreign proceeding favors permitting discovery, courts analyze how far along the foreign suit is in the discovery process. See In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 106-07 (finding the character of the foreign proceeding weighs against granting the petition because Petitioner filed the petition with less than a month before discovery closed, neither party had requested non-party discovery from the foreign tribunal and the parties had not discussed non-party discovery); see also Norex, 384 F.Supp.2d at 54 (denying motion to compel in part because the foreign litigation may not have reached "the stage in which discovery would be appropriate" and thus the Court is wary that Petitioner "may be using the United States statutes and federal court system to `jump the gun' on discovery in the underlying foreign suit.").
The Court finds that the Italian Proceeding is in its early stages. Unlike the petitioner In re Application of Caratube
A foreign tribunal's receptivity to judicial assistance through 28 U.S.C. § 1782(a) generally weighs in favor of permitting the discovery. See In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 105 (citation omitted). Analyzing a foreign tribunal's receptivity is not an extensive process. See Intel, 542 U.S. at 244, 124 S.Ct. 2466 (28 U.S.C. § 1782(a) "does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here. Comparisons of that order can be fraught with danger."); see also In re Veiga, 746 F.Supp.2d 8, 24 (D.D.C.2010) (citation omitted) (internal quotation marks omitted) (28 U.S.C. § 1782(a) "neither contemplates nor requires district courts to become embroiled in a legal tug-of-war over whether the foreign tribunal would be receptive to their assistance."). The evaluation simply involves "authoritative proof that a foreign tribunal would reject evidence obtained" under 28 U.S.C. § 1782(a). In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 105-06 (quoting Euromepa. S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1099, 1100 (2d Cir.1995) (noting it is not desirable to engage in "an extensive examination of foreign law regarding the existence and extent of discovery in the forum country" to determine receptivity to judicial assistance)); see also Infineon Technologies AG v. Green Power Technologies Ltd., 247 F.R.D. 1, 4 (D.D.C. 2005) (citation omitted) (noting a statement from the foreign tribunal that it did not want the materials is an important factor in denying a 28 U.S.C. § 1782(a) request). The party resisting the discovery bears the burden of proving "that the foreign tribunal would reject the evidence sought." In re Veiga, 746 F.Supp.2d at 23-24 (citing In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 105-06).
Petitioner relies on the declaration of Petitioner's Italian counsel to assert the Court in Milan is receptive to the discovery that the Subpoena seeks. (Am. Mot. to Compel 7-8; Reply in Supp. of Am. Mot. to Compel 5). Petitioner's Italian counsel claims that "Italian law does not limit the methods by which parties may obtain discovery, as long as the discovery has been obtained legally" and "[t]here is no evidence that the Italian Court would reject evidence obtained pursuant to § 1782." (Am. Mot. to Compel 8; Tirone Decl. ¶¶ 21, 22). Pursuant to In re Veiga, Respondent has the burden of proof as the resisting party. 746 F.Supp.2d at
A petition "conceal[ing] an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States" weighs against enforcing discovery. Intel, 542 U.S. at 264-65, 124 S.Ct. 2466. It is irrelevant if the material sought is not discoverable in the foreign tribunal because 28 U.S.C. § 1782(a) does not impose a foreign-discoverability requirement.
If the material sought is discoverable in the foreign tribunal, litigants are not required to seek discovery through the foreign tribunal prior to requesting through the United States, but courts have the discretion to consider this factor. See In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 107-08. Some courts have found that a party's efforts to obtain information from United States courts prior to attempting to obtain "comparable discovery" through the foreign tribunal is not a circumvention of foreign proof-gathering policies and thus "irrelevant." In re Veiga, 746 F.Supp.2d at 24 (citation omitted); see also In re Application of Caratube Int'l Oil Co., LLP, 730 F.Supp.2d at 107-08 (quoting Euromepa, 51 F.3d at 1098) (explaining some courts have "refused to engraft" onto 28 U.S.C. § 1782(a) a "`quasi-exhaustion requirement'"); Infineon, 247 F.R.D. at 5 (finding no attempt to circumvent when Petitioner could obtain documents under foreign procedures but instead "attempts more efficiently to obtain use of relevant documents" in the United States). Other courts have considered a party's failure to attempt to request discovery from the foreign tribunal first weighs against granting the request. See In re Application of
Respondent claims that Petitioner is attempting to circumvent the Court of Milan's foreign proof-gathering policies and procedures. (Opp'n to Mot. to Am. Mot. to Compel 6-7; Reply in Supp. of Mot. to Quash 3-4). First, Respondent asserts that the Court of Milan does not permit the deposition testimony or document requests that Petitioner seeks.
Petitioner refutes it is not circumventing Italian restrictions on discovery because the evidence is discoverable under Italian law.
The parties' conflicting evidence as to whether the discovery sought is permissible in the Court of Milan is irrelevant because 28 U.S.C. § 1782(a) does not bar discovery impermissible in the foreign tribunal. See Intel, 542 U.S. at 253, 260, 262, 124 S.Ct. 2466. Respondent's argument that Petitioner did not seek the discovery
A court may reject or modify unduly burdensome or intrusive requests. See Intel, 542 U.S. at 265, 124 S.Ct. 2466 (citations omitted); see also Lazaridis, 760 F.Supp.2d at 115-16 (declining to permit discovery in part because of the vague, "wide-ranging request" seeking six categories of documents, some over an eight-year time period); In re Veiga, 746 F.Supp.2d at 25-26 (declining to order production of documents located outside the United States); Infineon, 247 F.R.D. at 5 (noting the material sought is not burdensome because it has already been produced and movant is "only asking to share the documents" with its foreign counsel and possibly the foreign tribunal).
Here, Respondent objected that the document request attached to the Subpoena "is questionable and overly broad and overly burdensome" via e-mail on May 6, 2015.
This Court finds that the definition of "Competing Software" is not overly broad because it is relevant to Petitioner's Italian Complaint. Petitioner alleges that Respondent violated the non-compete clause of the parties' Agreement by representing competitors and collaborating in developing, marketing, and selling a competitor's software. (Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10-14). This Court finds that all four document requests are relevant to the Italian Proceeding and limited in scope as they request documents regarding the Agreement allegedly violated and Petitioner's competitors and their software, as specified in the Italian Complaint. (Subpoena 13; Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10-13). This Court additionally limits the scope of the requests to the time period during which the Agreement prohibited Respondent from competing with Petitioner as set forth in the non-compete clause: "for the entire duration of [the March 1, 2012 Agreement] and for a period of one year starting from the termination of [the Agreement.]" (Agreement 2, 4 at ¶ 5.1).
In the instant case, Respondent agreed to appear at his deposition, retained counsel, and ultimately refused to be deposed. (Am. Mot. to Compel 7, Ex. 5, Ex. 10, Ex. 11; Opp'n to Am. Mot. to Compel 3, Ex. D, Ex. G 34). This Court finds that Respondent's change in position is unfair to Petitioner and a waste of Petitioner's time and resources. Enforcing the deposition based on this factor furthers the twin aims of 28 U.S.C. § 1782(a) of "providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts." Intel, 542 U.S. at 252, 124 S.Ct. 2466 (citation omitted).
Therefore, an overwhelming majority of the factors analyzed weigh in favor of this Court exercising its discretion pursuant to the twin aims of 28 U.S.C. § 1782(a) and enforcing the Subpoena, narrowing the scope of the requests. Barring a reason to quash the Subpoena, Petitioner's Amended Motion to Compel is granted in part and denied in part.
Local Civil Rule 7(m) requires the parties to confer in good-faith prior to filing nondispositive motion and explain in the motion that the meet and confer took place. See supra at 220. Petitioner argues that Respondent did not discuss the anticipated motion with Petitioner or include a statement in its motion that this discussion occurred. (Opp'n to Mot. to Quash 3). Respondent asserts that he attempted to confer with Petitioner repeatedly. (Reply in Supp. of Mot. to Quash 1-3). Respondent relies on a May 22, 2015 correspondence in which Respondent requested that
The Court finds Respondent's correspondence insufficient. This correspondence puts Petitioner on notice of Respondent's intention to file a motion to quash, but it does not attempt to narrow the scope of the issues. Respondent failed to provide evidence that the parties discussed the "anticipated motion" or that Respondent attempted to schedule a meeting with Petitioner to discuss the motion. Local Civil Rule 7(m). Moreover, the Motion to Quash does not include the mandatory certification that the discussion took place. Id. Therefore, the Court finds that the Motion to Quash does not comply with Local Civil Rule 7(m).
Pursuant to Fed. R. Civ. P. 45(d)(3), the court where compliance is required may quash or modify a subpoena once a party "timely" moves to quash or modify. Generally, courts have interpreted "timely" as "within the time set in the subpoena for compliance." U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F.Supp.2d 270, 278, 278 n. 6 (D.D.C.2002) (citing Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y.2002) ("it is reasonable to assume that the motion to quash should be brought before the noticed date of the scheduled deposition")) (agreeing that "timely" generally indicates "within the time set in the subpoena for compliance" but recognizing that "the time for compliance could be so small that it would not even permit time to file a motion to quash"). Motions to quash filed a significant amount of time after a subpoena's compliance deadline are untimely. Id. (finding that a motion to quash filed ten months after the deadline specified in the subpoena is untimely); see also In re Motorsports Merch. Antitrust Litig., 186 F.R.D. 344, 346, 348, 350 (W.D.Va.1999) (finding a corporate defendant's motion to quash untimely because it was filed two months after the subpoena was due and 36 days after corporate representatives became aware of the subpoena and had retained counsel to file objections, and "[e]ven more troubling," defendant had informed plaintiffs' counsel "it intended to comply with the subpoena and simply needed more time to produce the documents requested.").
Here, Petitioner argues that Respondent's Motion to Quash is untimely because it was filed 21 days after "the time set in the subpoena for compliance[.]" (Opp. to Mot. to Quash 4 (citing U.S. ex rel. Pogue, 238 F.Supp.2d at 278)).
If the commanding party "timely" moves the court, the court must quash or modify a subpoena that "(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A). Here, Petitioner argues that even if Respondent's Motion to Quash was timely, it does not "set forth grounds sufficient to justify the quashing or modification of the subpoena" pursuant to Fed. R. Civ.P. 45(d)(3)(A). (Opp. to Mot. to Quash 5).
Pursuant to Fed. R. Civ. P. 45(d)(3)(A)(i) the court must quash or modify a subpoena that "fails to allow a reasonable time to comply[.]" Although the rule does not define reasonable time for compliance, "reasonableness seems to be related to the extent of the materials requested and the other underlying circumstances of the particular case." 9A Fed. Prac. & Proc. Civ. § 2463.1 (3d ed.); see also Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 25 (D.D.C.2005) (finding 29 days is "easily enough time to comply" with subpoenas "for document depositions only").
The Subpoena required Respondent to be deposed and produce documents in response to four limited requests for specific documents related to the allegations in Plaintiff's Italian Complaint, on May 11, 2015. (Subpoena 2). Respondent was served with the Subpoena on April 23, 2015 and thus had 18 days to comply with the Subpoena or file a motion to quash. (Affidavit of Service; Subpoena 2). Petitioner subsequently granted Respondent a ten-day extension for the deposition, thus providing Respondent with 28 days to comply. (Am. Mot. to Compel 5, Ex. 5, Ex. 11; Opp'n to Am. Mot. to Compel 3, Ex. D). The Court finds that 28 days is sufficient time to appear for a deposition and produce documents in response to limited requests.
Pursuant to Fed. R. Civ. P. 45(d)(3)(A)(ii), the court must quash or
Pursuant to Fed. R. Civ. P. 45(d)(3)(A)(iii), the court must quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies[.]" Respondent has not argued that the Subpoena seeks privileged or protected matter. (Mot. to Quash; Opp. to Am. Mot. to Compel; Reply in Supp. of Mot. to Quash).
Pursuant to Fed. R. Civ. P. 45(d)(3)(A)(iv), the court must quash or modify a subpoena that "subjects a person to undue burden." Respondent argues that the Subpoena imposes an undue burden and Petitioner refutes this. See supra at 227-29. For the reasons set forth above, the Court finds the Subpoena does not subject Respondent to undue burden. See supra at 229-30.
Because Respondent failed to prove the Court must quash the Subpoena, the Court denies Respondent's Motion to Quash and thus, the Respondent must appear for a deposition.
Both parties request attorneys' fees and costs. First, Respondent requests attorneys' fees and costs incurred as a result of the Subpoena and Motion to Compel. (Mot. to Quash). Because Respondent's Motion to Quash is denied, the Court finds he is not entitled to attorneys' fees or costs. Next, Petitioner requests an award of costs, including attorneys' fees, related to compelling Respondent's compliance with the Subpoena. (Am. Mot. to Compel 2). Attorneys' fees and costs incurred in preparing a motion to compel are governed by Fed. R. Civ. P. 37(a)(5). Because Petitioner's Motion to Compel is granted in part and denied in part, the Court may award Petitioner expenses reasonably incurred in making the Motion, including attorneys' fees. See Fed. R. Civ.P. 37(a)(5)(C). Petitioner is directed to file an accounting of its attorneys' fees relating to the filing of the Amended Motion to Compel, Reply in Support of the Amended Motion to Compel and Opposition to the Motion to Quash within ten days after the deposition has been held.
For the reasons stated above, the Court grants in part and denies in part Petitioner's Amended Motion to Compel [3] and denies Respondent's Motion to Quash [5]. An Order consistent with this Memorandum Opinion will be issued separately.
