United States District Court, W.D. Louisiana, Monroe Division
JJ PLANK COMPANY, LLC AND XERIUM TECHNOLOGIES, INC., Plaintiffs
GARY BOWMAN, Defendant
DOUGHTY MAGISTRATE JUDGE.
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
the Court is an Expedited Motion to Compel Compliance with
Expedited Discovery (Doc. 27) filed by Plaintiffs JJ Plank
Company, LLC (“JJ Plank”) and Xerium
Technologies, Inc. (“Xerium”) (collectively,
“Plaintiffs”). The Motion seeks production of
four categories of discovery: “(1) A workable mirror
image of Bowman's Voith email custodial account (which
would include deleted emails); (2) a mirror image of
Bowman's work computer; (3) a mirror image of
Bowman's company-issued smart phone; and (4) any
documents Bowman has created or accessed in his several weeks
of activity at Voith, including any hard-copy documents
collected from Bowman's Voith office.” (Doc. 27, p.
2). Defendant Gary Bowman (“Bowman”) and Third
Party Voith Paper Fabric Rolls Systems, Inc.
(“FRS”) oppose the Motion.
discovery requests, as initially written and as sought to be
enforced through this Motion, exceed the permissible scope of
discovery under Fed.R.Civ.P. 26(b). And because FRS has
undertaken at least some production in response to
Plaintiffs' subpoena pursuant to an informal agreement
between the parties - albeit not quickly enough for
Plaintiffs' - the Motion is also, at least in part,
premature. The Motion is therefore DENIED.
initial matter, the parties dispute the scope of the Motion
itself. FRS argues that the last three categories of
discovery listed above were not expressly included in the
subpoena (Doc. 27-2). That is correct. Plaintiffs maintain
that the categories of discovery listed in the Motion would
be responsive to the production required by the subpoena. But
the categories call for production in excess of the
production sought by the express terms of the subpoena. And
only the latter terms may actually be enforced through the
Motion. To the extent the Motion seeks production pursuant to
terms not expressly included in the subpoena, the Motion is
the Court will construe the categories of documents listed in
the Motion to indicate the portions of the subpoena - or more
literally, the items listed under “Request for
Documents” in the subpoena - which are still
outstanding and discoverable in Plaintiffs' view.
Employing this construction, the Motion seeks production
pursuant to items 2 and 3 under “Request for
2. A downloadable mirror image file of all emails (including
sent, received, deleted, archived, calendars, etc.) in native
format from the work email account belonging to Gary Bowman.
3. All documents that Bowman has created or accessed, or has
brought or maintained at work at Voith, including
communications with any third party customers, related to
(Doc. 27-2, pp. 7-8).
another initial matter, Bowman maintains - and effectively
certifies through his opposition - that he does not have
documents responsive to the subpoena, or the capability to
produce files or images responsive to the Motion. Bowman
correctly notes that Fed.R.Civ.P. 34(a)(1) only requires
production of documents and things within a party's
“possession, custody, or control.” The Motion is
therefore also meritless to the extent it seeks further
production or response from Bowman.
resolved those preliminary issues, the Court turns to the
basic principles implicated by the Motion. First, in issuing
the subpoena, Plaintiffs were subject to the general duty to
avoid imposing undue burden or expense upon FRS: “A
party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena.”
Fed.R.Civ.P. 45(d)(1). And any order by the Court must
protect FRS, as a non-party, “from significant expense
resulting from compliance.” Fed.R.Civ.P.
the Court takes this discovery dispute as it finds it, which
is pursuant to a motion to compel, not a motion to quash or
modify the subpoena under Fed.R.Civ.P. 45, or a motion for
protective order pursuant to Fed.R.Civ.P. 26(c). As such, the
Court's determination must address whether the
subpoena's requests conform to the proper parameters of
discovery in this matter. Relevant to that determination,
among other things, are the nature of this lawsuit, the
position of the party from whom discovery is sought, and the
objections of that party.
nature, this litigation involves the alleged misappropriation
of trade secrets. FRS's position is that of a non-party
competitor of the party seeking discovery. And FRS has
objected to both disputed document requests as overly broad,
disproportionate to the needs of the case, and unrelated to