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JJ Plank Co. LLC v. Bowman

United States District Court, W.D. Louisiana, Monroe Division

July 23, 2018

JJ PLANK COMPANY, LLC AND XERIUM TECHNOLOGIES, INC., Plaintiffs
v.
GARY BOWMAN, Defendant

          DOUGHTY MAGISTRATE JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Plaintiffs' 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.

         I. Background

         As an 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 without foundation.

         Instead, 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 Documents”:

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 spreader rolls.

(Doc. 27-2, pp. 7-8).

         As 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.

         Having 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. 45(d)(2)(B)(ii).

         Second, 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.

         By 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 ...


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