Ht S.R.L. v. Velasco , 125 F. Supp. 3d 211 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HT S.R.L.,
Petitioner, Misc. Action No. 1:15-mc-00664-
RBW-AK
v.
LUIS ALEJANDRO VELASCO, Related to:
Case No. 15-mc-00177 (D. Md.)
Respondent.
MEMORANDUM OPINION
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.
-1-
I. BACKGROUND
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 “for the entire duration of [the Agreement] and for a period of one year starting from the
termination of [the Agreement.]” (Opp’n to Am. Mot. to Compel 1; Am. Mot. to Compel 3-4;
Tirone Decl. ¶ 7; Agreement ¶¶ 5.1, 6.1). The Agreement also contains a choice of law clause
mandating Italian law governs the Agreement and a choice of forum clause requiring the Court of
Milan has exclusive jurisdiction over “any disputes relating to the interpretation or execution of
the [Agreement.]” (Agreement ¶¶ 12.1, 12.2; Opp’n to Am. Mot. to Compel 1).
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-
-2-
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. 1 (Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10-14).
On April 10, 2015, Petitioner filed an ex parte Application for an Order Pursuant to 28 U.S.C. §
1782 to Conduct Discovery for Use in a Foreign Proceeding in the United States District Court
for the District of Maryland. (Am. Mot. to Compel Ex. 1 (“Application”) [3-1] 2-23). The proposed
subpoena commanding Respondent to testify at a deposition and produce documents was attached.
(Am. Mot. to Compel Ex. 1A [3-1] 12-23). On April 17, 2015, the Honorable J. Frederick Motz
granted the Application, authorizing the issuance of the subpoena. (Am. Mot. to Compel Ex. 2
(“Order”) [3-2]).
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. 2 (Am. Mot. to Compel Ex. 3 (“Subpoena”) [3-3]).
Respondent was served on April 23, 2015. (Am. Mot. to Compel Ex. 4 (“Affidavit of Service”)
[3-4]). On May 5, 2015, Respondent personally called Petitioner and requested to reschedule the
deposition due to a family graduation requiring his attendance. (Am. Mot. to Compel 5; Opp’n to
Am. Mot. to Compel 3). That afternoon, Respondent personally e-mailed Petitioner
acknowledging the acceptance of his request to reschedule and agreeing to appear for his
1
The Italian Complaint alleges that Respondent “associated himself” with Petitioner’s competitors Newco404 LLC
and Reaqta Ltd. (Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10, 11). Newco404 LLC sells products that directly compete
with Petitioner’s products. (Tirone Decl. ¶ 10). Reaqta Ltd. produces a “software product designed to neutralize
[Petitioner’s] product.” (Am. Mot. to Compel 4; Tirone Decl. ¶ 11). Allegedly, Respondent “presented and marketed
the Reaqta software, on multiple occasions” to Petitioner’s prospective client who was interested in purchasing
Petitioner’s software. (Am. Mot. to Compel 4; Tirone Decl. ¶ 12). Respondent allegedly allowed Newco404 LLC and
Reaqta Ltd.’s executives to participate in meetings with Petitioner’s prospective clients. (Am. Mot. to Compel 4;
Tirone Decl. ¶¶ 12, 13).
2
The Subpoena is captioned with the United States District Court for the District of Maryland. (Subpoena 2).
-3-
deposition on May 21, 2015 (Am. Mot. to Compel Ex. 5 [3-5], Ex. 11 [3-11]; Opp’n to Am. Mot.
to Compel Ex. D [4-1] 23). Petitioner responded that evening accepting the request to reschedule
and informing Respondent he was still obligated to produce documents by the date set forth in the
Subpoena, May 11, 2015. (Am. Mot. to Compel Ex. 11; Opp’n to Am. Mot. to Compel Ex. D). On
May 6, 2015, Respondent replied that he also needed additional time for the production and
objected pursuant to Fed. R. Civ. P. 45(d)(2)(B) that the document “request is questionable and
overly broad and overly burdensome.” 3 (Am. Mot. to Compel Ex. 11; Opp’n to Am. Mot. to
Compel Ex. D).
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] 25-
27). 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
3
Petitioner failed to disclose that Respondent raised objections on May 6, 2015 in his original Motion to Compel
Compliance with the Subpoena (“Motion to Compel” [1]). (Am. Mot. to Compel 2, n.1). Instead, Petitioner identified
Respondent’s May 5, 2015 e-mail agreeing to appear for his deposition and indicated that after the e-mail, “HT did
not receive any further communications from Mr. Velasco or anyone acting on his behalf until May 15, 2015.” (Mot.
to Compel 5).
-4-
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 [4-
1] 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. 4
Respondent notified Petitioner that the Motion to Compel contained “demonstrably false
statements” because Petitioner failed to disclose the fact that Respondent personally objected to
the document request on May 6, 2015. (Opp’n to Am. Mot. to Compel Ex. I [4-1] 41-42). 5
4
Petitioner filed the Motion to Compel in this Court instead of the District Court of Maryland because the Subpoena
states that compliance is required in the District of Columbia and a motion to compel compliance must be filed in “the
court for the district where compliance is required[.]” (Subpoena 2); Fed. R. Civ. P. 45(d)(2)(B)(i).
5
The Court notes that 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; Am. Mot. to Compel 2
n.3). Petitioner filed the Amended Motion to Compel after receiving Respondent’s correspondence informing
Petitioner of this error. (Opp’n to Am. Mot. to Compel 5, Ex. I).
-5-
Petitioner then filed the instant Amended Motion to Compel requesting an order (1) directing
Respondent to produce all documents requested in the Subpoena, (2) establishing a date for
Respondent to provide deposition testimony and (3) instructing Respondent to pay Petitioner’s
costs, including attorneys’ fees, related to compelling Respondent’s compliance with the
Subpoena. (Am. Mot. to Compel 2). Respondent filed a Motion to Quash requesting attorneys’
fees and costs incurred as a result of the Subpoena and Motion to Compel. (Mot. to Quash). This
Court held a hearing on both motions on August 10, 2015.
II. LEGAL STANDARD
A. Compelling Compliance with a 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).
B. Enforcing a Subpoena Issued Pursuant to 28 U.S. C. §1782(a)
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 (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
-6-
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)).
C. Quashing a Subpoena
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 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.” Fed. R. Civ. P. 45 (d)(3)(B).
III. ANALYSIS
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).
-7-
Third, Petitioner argues that Respondent did not timely file his Motion to Quash 6 or file a motion
for a protective order, thus failing to take “appropriate steps to excuse compliance[.]” (Am. Mot.
to Compel 7; Opp’n to Mot. to Quash 4). Lastly, the Motion to Quash does not comply with Local
Civil Rule 7(m) and does not propound arguments sufficient to justify quashing a subpoena
pursuant to Fed. R. Civ. P. 45(d)(3)(A). (Opp’n to Mot. to Quash 3-5).
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 7 informing Petitioner of this error. (Opp’n to Am. Mot. to Compel 4, Ex. I).
Additionally, Respondent argues that the factors to consider with a 28 U.S.C. § 1782(a) request
weigh against allowing discovery because (1) the discovery sought is unavailable under Italian
law, (2) failing to disclose the aforementioned factor in the Application 8 was an attempt to
“circumvent foreign proof-gathering restrictions,” (3) Respondent “is a participant in the foreign
proceeding,” and (4) Petitioner is “’jump[ing] the gun’ on discovery in the foreign suit” by seeking
discovery prior to “the appropriate stage” in the Italian Proceeding. 9 (Reply in Supp. of Mot. to
6
Petitioner’s May 28, 2015 Amended Motion to Compel argued that compliance should be ordered in part because
Respondent did not file a Motion to Quash. (Am. Mot. to Compel 7). On June 11, 2015, Respondent filed a Motion to
Quash. (Mot. to Quash). In response, Petitioner argued its filing was untimely. (Opp’n to Mot. to Quash 4).
7
In that correspondence, Respondent explained that any motion was premature and requested that Petitioner withdraw
the motion. (Opp’n to Am. Mot. to Compel 4, Ex. I).
8
Respondent argues that this omission “misleadingly characterized Italian law” and thus the District Court of
Maryland did not have the opportunity “to meaningfully consider” the issues Respondent raises. (Reply in Supp. of
Mot. to Quash 5).
9
Respondent argues that responsive pleadings in the Italian Proceeding are not due before October 2015. (Opp’n to
Am. Mot. to Compel 8).
-8-
Quash 3-5, (citations omitted); Opp’n to Am. Mot. to Compel 6). With respect to Petitioner’s
contentions regarding the Motion to Quash, Respondent asserts that he attempted to confer with
Petitioner repeatedly, he did not unreasonably delay filing his Motion to Quash, and the Subpoena
imposes an undue burden. (Reply in Supp. of Mot. to Quash 1-3).
A. Amended Motion to Compel
1. Compliance with Local Civil Rule 7(m) and Fed. R. Civ. P. 37(a)(1).
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
-9-
Respondent’s May 21, 2015 proposed alternatives to the Subpoena and rushed to file a motion to
compel. 10 (Opp’n to Am. Mot. to Compel 4, Ex. H). Despite rejecting these proposals, Petitioner
had previously attempted to accommodate Respondent in good faith. 11 (Am. Mot. to Compel Ex.
5, Ex. 7, Ex. 11; Opp’n to Am. Mot. to Compel 3, Ex. D, Ex. F). Respondent’s May 21, 2015
proposals attempted to sidestep the court-authorized Subpoena after Petitioner had attempted to
accommodate Respondent repeatedly in good faith. Thus, the Court finds that Petitioner’s
rejections of Respondent’s proposals were not indicative of bad faith and that the parties did confer
in good faith on May 21, 2015. Therefore, the Amended Motion to Compel complies with Local
Civil Rule 7(m) and Fed. R. Civ. P. 37(a)(1).
2. Authority to grant the 28 U.S.C. § 1782(a) request.
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 within the district of the court in
which the request is made, (2) the discovery is for use in a proceeding before an international or
foreign tribunal, and (3) the application is made by a foreign or international tribunal or any
interested person. See 28 U.S.C. § 1782(a); see also In re Application of Caratube Int’l Oil Co.,
LLP, 730 F. Supp. 2d 101, 104 (D.D.C. 2010) (citing Schmitz v. Bernstein, Liebhard & Lifshitz,
LLP, 376 F.3d 79, 83 (2d Cir. 2004)).
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
10
Respondent had proposed either waiting to see whether the Italian court ordered discovery or both parties agreeing
to engage in reciprocal discovery beyond what Italian law permits. (Opp’n to Am. Mot. to Compel 4, Ex. H).
11
On May 5, 2015, Petitioner agreed to reschedule Respondent’s May 11, 2015 deposition to May 21, 2015 (Am.
Mot. to Compel Ex. 5, Ex. 11; Opp’n to Am. Mot. to Compel Ex. D [4-1] 23). On May 19, 2015, Petitioner proposed
accommodating Respondent by changing the location of his deposition from Petitioner’s counsel’s office in
Washington, District of Columbia to Annapolis, Maryland. (Am. Mot. to Compel Ex. 7; Opp’n to Am. Mot. to Compel
3, Ex. F).
- 10 -
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.
3. Authority to enforce a subpoena issued pursuant to 28 U.S.C. § 1782(a).
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.
4. Exercising discretion to enforce a subpoena issued pursuant to 28 U.S.C. §
1782(a).
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; 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
- 11 -
U.S. at 252 (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; 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 or other policies of a foreign country or the United States”; and (f) the scope
of discovery. Intel, 542 U.S. at 264-65 (citations omitted).
a. Party from whom discovery is sought.
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(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.
- 12 -
b. Nature of the foreign tribunal.
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.
c. Character of the foreign proceedings.
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
- 13 -
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 Int’l Oil Co., LLP, Petitioner here has not delayed in seeking discovery
under 28 U.S.C. § 1782(a). 730 F. Supp. 2d at 106-07. Instead, Petitioner is proactively and
efficiently using its time to seek discovery. Because the hearing at which the Court of Milan may
determine appropriate evidence has not been set, the Court finds that enforcing the Subpoena shall
not prejudice Respondent, who will also have sufficient time to seek discovery under 28 U.S.C. §
1782(a) for use in the Italian Proceeding if he desires. Therefore, enforcing the Subpoena in light
of the character of the Italian Proceeding furthers one of the twin aims of 28 U.S.C. 1782(a):
“providing efficient assistance to parties in international litigation[.]” Intel Corp., 542 U.S. at 252(citation omitted). Moreover, enforcing the Subpoena is an action independent of the Court of
Milan’s discovery procedures. 12 Thus, the character of the foreign proceeding weighs in favor of
enforcing the Subpoena.
d. Receptivity of the foreign tribunal to U.S. judicial assistance.
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 (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)
12
The Court of Milan can decide whether or not to accept the discovery obtained through the Subpoena at the
appropriate time in its proceedings.
- 14 -
“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 23-24. Because Respondent failed
to contest Petitioner’s assertion of receptivity, Respondent failed to meet his burden of proof with
respect to this factor. (Reply in Supp. of Am. Mot. to Compel 5; Opp’n to Am. Mot. to Compel;
Mot. to Quash; Reply in Supp. of Mot. to Quash). Therefore, Petitioner’s assertion that the Court
- 15 -
of Milan is receptive to discovery sought under 28 U.S.C. § 1782(a) weighs in favor of enforcing
the Subpoena.
e. Circumvention of foreign proof-gathering restrictions and policies.
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. 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. 13 See Intel,
542 U.S. at 253, 260, 262 (explaining a foreign-discoverability rule is “senseless” if a “foreign
tribunal would readily accept relevant information discovered in the United States”). Concerns of
equality between adversarial parties in litigation do not justify a “cross-the-board foreign-
discoverability rule[.]” Id. at 262. If an interested person is seeking the information, then the
district court can “condition relief upon that person’s reciprocal exchange of information.” Id.(citing Euromepa, 51 F.3d at 1102). Alternatively, the foreign tribunal can condition acceptance
of the information obtained under 28 U.S.C. § 1782(a) to ensure equality between the litigants. Id.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
13
The statute’s text does not limit authority to materials discoverable in the foreign jurisdiction and its legislative
history does not indicate Congress intended such a requirement. See Intel, 542 U.S. at 260; see also In re Application
of Gianoli Aldunate, 3 F.3d 54, 59 (2d Cir. 1993) (“If Congress has intended to impose such a sweeping restriction on
the district court’s discretion, at a time when it was enacting liberalizing amendments to the statute, it would have
included statutory language to that effect.”). Moreover, a foreign-discoverability requirement conflicts with the twin
aims of 28 U.S.C. § 1782(a). Id. at 260-61 (citation omitted) (“A foreign nation may limit discovery within its domain
for reasons peculiar to its own legal practices, culture, or traditions – reasons that do not necessarily signal objection
to aid from United States federal courts.”).
- 16 -
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
Caratube Int’l Oil Co., LLP, 730 F. Supp. 2d at 107-08 (citation omitted) (finding Petitioner
attempted to circumvent the foreign “[t]ribunal’s control over its own discovery process” because
the petitioner “side-stepped” guidelines petitioner proposed and the Tribunal accepted).
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. 14 (Opp’n to Mot. to Am. Mot. to
Compel 6-7; Reply in Supp. of Mot. to Quash 3-4). Second, Petitioner has rejected Respondent’s
multiple offers “that both parties could provide discovery on a reciprocal basis[.]” (Opp. To Am.
Mot. to Compel 7, Ex. H; Reply in Supp. of Mot. to Quash 4). Lastly, Respondent argues that
Petitioner failed to comply with Italian law because it did not “first mak[e] any effort to obtain a
discovery order from the court in Milan[.]” (Opp. to Am. Mot. to Compel 7).
14
Respondent argues that Italy does not have “pre-hearing fact discovery” and that discovery in Italy “is entirely run
within the Court Proceeding under the Judge’s direct supervision.” (Opp’n to Mot. to Am. Mot. to Compel 6, Ex. B).
It is rare for Italian courts to grant a request to order a party “to submit one or more specific documents to the court[.]”
(Opp’n to Mot. to Am. Mot. to Compel 6-7, Ex. B). Respondent asserts that Italy “has informed the Hague Conference
for Private International Law that it will not grant requests for pre-trial discovery of documents.” (Opp’n to Am. Mot.
to Compel 7, Ex. J [4-1] 46).
- 17 -
Petitioner refutes it is not circumventing Italian restrictions on discovery because the
evidence is discoverable under Italian law. 15 (Am. Mot. to Compel 8; Tirone Decl. ¶¶ 21, 22; Reply
in Supp. of Am. Mot. to Compel 3, 5). Petitioner notes that “[s]everal courts have also compelled
compliance with a Subpoena issued under § 1782 related to an Italian proceeding.” 16 (Reply in
Supp. of Am. Mot. to Compel 5; Opp’n to Mot. to Quash 7-8 (citing Lancaster Factoring Co. Ltd.,
90 F.3d at 39; In re Nieri, 2000 U.S. Dist. LEXIS 540 at *2-4)).
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. Respondent’s argument that Petitioner
did not seek the discovery from the Court of Milan first is also irrelevant because Petitioner was
not required to do so, assuming arguendo, that the discovery is permissible. See In re Application
of Caratube Int’l Oil Co., LLP, 730 F. Supp. 2d at 107-08. This Court finds the fact that Petitioner
did not first seek the discovery from the Court of Milan is not an attempt to circumvent the court’s
restrictions and procedures. See 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 (citation omitted);
Infineon, 247 F.R.D. at 5. Thus, the absence of a circumvention attempt weighs in favor of
enforcing the Subpoena.
15
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[.]” (Am. Mot. to Compel 8; Tirone Decl. ¶¶ 21, 22).
16
Upon this Court’s own research, it appears that Petitioner overstated the quantity of courts that have compelled
compliance with a subpoena issued pursuant to 28 U.S.C. § 1782 in which the underlying foreign proceeding was
Italian. Although the decisions on which Petitioner relies were issued prior to Intel and outside of this Court’s
jurisdiction, they do enforce compliance with a subpoena seeking discovery for an Italian proceeding. See Lancaster
Factoring Co. Ltd., 90 F.3d at 39, 43; see also In re Nieri, No. Civ. A. M12-329, 2000 U.S. Dist. LEXIS 540 at *1-4
(S.D.N.Y., Jan. 24, 2000). In re Nieri identified principles later held in Intel: 28 U.S.C. § 1782(a) does not bar
discovery if it is undiscoverable in the foreign court and “preventing circumvention of foreign restrictions on discovery
constitutes one valid policy for the district court to consider in exercising its discretion.” 2000 U.S. Dist. LEXIS 540,
at *1 (citation omitted); 542 U.S. at 253, 260, 262, 264-65. Accordingly, these cases are persuasive, but not binding.
- 18 -
f. Scope of discovery.
A court may reject or modify unduly burdensome or intrusive requests. See Intel, 542 U.S.
at 265 (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.,17 (Am. Mot.
to Compel Ex. 11; Opp’n to Am. Mot. to Compel Ex. D). His counsel then reiterated these
objections in correspondence on May 15, 2015, 18 and argued that the discovery requests are
impermissible under Italian law. (Opp’n to Am. Mot. to Compel 3, Ex. E 25-26 (quoting Subpoena
5, 13)). Respondent explains Request Number 1 is overly broad because it “seeks seven different
subcategories of documents,” including all documents regarding “Competing Software,” a term
defined broadly in the Subpoena as “any software that may be considered to be in competition
with, or may neutralize the effectiveness of, software developed, marketed or sold by HT.” (Opp’n
17
The Court finds that Respondent’s objections were due May 7, 2015 and therefore his May 6, 2015 objections were
timely. See Fed. R. Civ. P. 45(d)(2)(B). However, the Court finds these objections were insufficient. First, they did
not include Respondent’s signature or address. (Am. Mot. to Compel Ex. 11; Opp’n to Am. Mot. to Compel 3 Ex. D);
see Fed. R. Civ. P. 26(g)(1). Second, the objections were not explained. (Am. Mot. to Compel Ex. 11; Opp’n to Am.
Mot. to Compel 3, Ex. D). A party raising an unduly burdensome objection must “demonstrat[e] how the document
request is ‘overly broad, burdensome, or oppressive, by submitting affidavits or offering evidence which reveals the
nature of the burden.’” Thong v. Andre Chreky Salon, 247 F.R.D. 193, 197 (D.D.C. 2008) (quoting U.S. ex rel. Fisher
v. Network Software Assocs., 217 F.R.D. 240, 246 (D.D.C. 2003)). Because Respondent simply stated the objections
in his May 6, 2015 e-mail without explanation, his objections were improper. (Am. Mot. to Compel Ex. 11); see Andre
Chreky Salon, 247 F.R.D.at 197 (citation omitted) (internal quotations omitted).
18
The Court finds Respondent’s May 15, 2015 objections untimely. See Fed. R. Civ. P. 45(d)(2)(B). The objections
were, however, properly articulated because they complied with Fed. R. Civ. P. 26(g)(1) and explained the nature of
the burden asserted. (Opp’n to Am. Mot. to Compel 3, Ex. E 25-26). See Andre Chreky Salon, 247 F.R.D. at 197
(citation omitted) (internal quotations omitted).
- 19 -
to Am. Mot. to Compel 3 Ex. E (quoting Subpoena 5, 13)). Petitioner refutes that the requests are
not overly broad or burdensome because the Subpoena is “reasonable on its face” and the
Subpoena propounds “only four limited document requests” that are “plainly relevant to the Italian
Proceeding. (Am. Mot. to Compel 8; Opp. to Mot. to Quash 6). Petitioner also argues that
Respondent’s objections fail to “provide sufficient specificity to justify non-Production under the
federal rules[.]” (Am. Mot. to Compel 10).
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). 19 Furthermore, any proprietary and confidential information not
pertaining to Petitioner may be redacted.
g. Other factors for consideration.
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.
19
At the hearing, Respondent’s counsel indicated that the Agreement terminated in March 2015.
- 20 -
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 (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.
B. Motion to Quash
1. Noncompliance with Local Civil Rule 7(m).
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
9. 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 Petitioner give notice before filing “any motion to compel, so that [Respondent]
may file a related motion to quash.” (Reply in Supp. of Mot. to Quash 2, Ex. A [10-1] 3). On May
27, 2015, Respondent sent Petitioner correspondence instructing Petitioner that it should seek
discovery under Italian law before filing motions in the United States and requesting that Petitioner
withdraw its motion to compel “to spare further unnecessary expense by both parties, and the
court.” (Reply in Supp. of Mot. to Quash 2, Ex. B [10-1] 6).
- 21 -
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).
2. Untimely filing.
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,
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
- 22 -
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)). 20 The Subpoena required Respondent to be deposed
and produce documents on May 11, 2015. (Subpoena 2). Respondent was served with the
Subpoena on April 23, 2015. (Affidavit of Service). Petitioner granted Respondent an extension
for the deposition, rescheduling from May 11, 2015 to May 21, 2015. (Am. Mot. to Compel 5, Ex.
5, Ex. 11; Opp’n to Am. Mot. to Compel 3, Ex. D). Thus, the compliance date was May 21, 2015
and Respondent had 28 days to comply with the Subpoena or file a Motion to Quash. (Reply in
Supp. Mot. to Quash 3); see U.S. ex rel. Pogue, 238 F. Supp. 2d at 278. However, Respondent did
not file his Motion to Quash until June 11, 2015, 21 days after the date for compliance, 31 days
after Respondent retained counsel, and 50 days after he was served with the Subpoena. (Mot. to
Quash; Subpoena 2; Opp’n to Am. Mot. to Compel 3; Affidavit of Service); see U.S. ex rel. Pogue,
238 F. Supp. 2d at 278. The Court finds that 28 days is a sufficient period of time to permit filing
a motion to quash, and accordingly, Respondent’s Motion to Quash is untimely. 21
3. Insufficient Arguments to Justify Quashing the 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
20
Respondent argues that “timely” should not be interpreted in this case as “within the time set in the subpoena for
compliance” because the time for compliance was so short that it would be “unjust” to find the motion untimely.
(Reply in Supp. Mot. to Quash 3 (citing U.S. ex rel. Pogue, 238 F. Supp. 2d at 278 n.6)).
21
The Court also finds it “troubling” that Respondent filed a motion to quash after he agreed to attend his deposition
and indicated he would produce documents but needed additional time to produce them. (Am. Mot. to Compel Ex. 5,
Ex. 11; Opp’n to Am. Mot. to Compel Ex. D); see In re Motorsports Merch. Antitrust Litig., 186 F.R.D. at 350.
- 23 -
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). 22
a. Reasonable time to comply.
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.
22
Neither party raised arguments regarding conditions permitting quashing or modifying the Subpoena pursuant to
Fed. R. Civ. P. 45 (d)(3)(B). Here, experts are not at issue and neither party has identified issues with disclosing “trade
secret or other confidential research, development, or commercial information[.]” Id.- 24 -
b. Compliance within geographical limitations.
Pursuant to Fed. R. Civ. P. 45(d)(3)(A)(ii), the court must quash or modify a subpoena that
“requires a person to comply beyond the geographical limits specified in Rule 45(c).” Depositions
and productions of documents are geographically limited to locations “within 100 miles of where
the person resides is employed, or regularly transacts business in person[.]” Fed. R. Civ. P.
45(c)(1)(A), 45(c)(2)(A). Here, Petitioner argues the Subpoena does not violate geographical
limitations. (Opp. to Mot. to Quash 6). Respondent does not contest this. (Opp. to Am. Mot. to
Compel; Reply in Supp. of Mot. to Quash). Thus, the Court finds that the Subpoena does not
require Respondent to comply beyond the permitted geographical limits.
c. Disclosure of privileged or protected matter.
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).
d. Undue burden.
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 20-21. For the reasons set forth above, the Court
finds the Subpoena does not subject Respondent to undue burden. See supra at 22-23.
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.
- 25 -
C. Attorneys’ Fees and Costs
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. 23 This Court
will then issue a ruling accordingly.
IV. CONCLUSION
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.
Date: August 28, 2015
______________/s/____________________
ALAN KAY
UNITED STATES MAGISTRATE JUDGE
23
Counsel will not be awarded attorney’s fees relating to the initial Motion to Compel that was later amended.
- 26 -