Muench Photography, Inc. v. Pearson Education, Inc.
Filing
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ORDER QUASHING SUBPOENA TO THIRD-PARTY CORBIS CORPORATION. The Court QUASHES the subpoena duces tecum issued to Corbis by Muench. Signed by Judge William H. Orrick on 08/29/2013. (jmdS, COURT STAFF) (Filed on 8/29/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MUENCH PHOTOGRAPHY, INC.,
Case No. 12-cv-01927-WHO
Plaintiff,
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v.
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PEARSON EDUCATION, INC.,
Defendant.
ORDER QUASHING SUBPOENA TO
THIRD-PARTY CORBIS
CORPORATION
Re: Dkt. No. 53
United States District Court
Northern District of California
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Defendant Pearson Education, Inc. (“Pearson”), and plaintiff Muench Photography, Inc.
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(“Muench”) submitted a joint letter describing a discovery dispute regarding the propriety of
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Muench’s issuance of a document subpoena to third-party Corbis Corporation (“Corbis”) on
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August 20, 2013 (the “Letter”). Because the deadline for fact discovery was May 31, 2013, and
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Muench does not show good cause for reopening discovery, the subpoena is QUASHED.
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Third-party subpoenas under Federal Rule of Civil Procedure 45 “are subject to the same
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scheduling orders and deadlines as other forms of discovery.” WILLIAM W. SCHWARZER ET AL.,
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CALIFORNIA PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE BEFORE TRIAL 11-308 (2013) (citing
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Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 177 F.R.D. 443, 444 (D. Minn. 1997)); see also
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MedImmune, LLC v. PDL Biopharma, Inc., No. 08-cv-05590-JF (HRL), 2010 WL 1266770, at *1
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(N.D. Cal. Apr. 1, 2010); Crayton v. Rochester Med. Corp., No. 07-cv-1318-OWW (GSA), 2010
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WL 392341, at *2 (E.D. Cal. Jan. 25, 2010); nSight v. PeopleSoft, Inc., No. 04-cv-3836-MMC
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(MEJ), 2006 WL 988807, at *4 (N.D. Cal. Apr. 13, 2006); Integra Lifesciences I, Ltd. v. Merck
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KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999). Muench mischaracterizes its subpoena as a trial
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subpoena because it seeks documents “in order to prepare its proofs for trial.” Letter at 4. But the
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entire purpose of discovery is to prepare a case for trial, and the subpoena to Corbis is clearly one
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which could and should have been served during the discovery period.
Case management procedures, such as discovery deadlines, are designed to “secure the
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just, speedy, and inexpensive determination of every action and proceeding” that Federal Rule of
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Civil Procedure 1 advises. FED. R. CIV. P. 1. Federal Rule of Civil Procedure 16 requires district
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judges to issue scheduling orders that address discovery. FED. R. CIV. P. 16. If a party could
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evade discovery deadlines to continue to conduct third-party discovery until the time of trial, the
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universe of documents relevant to the case would never be settled prior to trial. This would defeat
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the purpose of the case management procedures detailed in the Federal Rules, increase the cost of
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litigation, impede settlement prospects, make trial preparation unwieldy, and wreak havoc on trial
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schedules.
United States District Court
Northern District of California
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Muench seeks documents from Corbis on the day that dispositive motions are due, three
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months after the close of fact discovery, and four months before trial. It does not explain why it
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represented to the Court on August 14, 2013, that fact discovery was complete. It provides no
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justification for not having sought this discovery during the discovery period. It does not refute
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Pearson’s assertion that Muench was well aware from the time it filed this action on April 18,
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2012, that Corbis had documents relevant to its case. Letter at 2.
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Instead, Muench purports to squeeze through an exception to the general rule that Rule 45
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subpoenas may not be used as “means to engage in discovery after the discovery deadline has
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passed.” See, e.g., Puritan Inv. Corp. v. ASLL Corp., No. 97-cv-1580, 1997 WL 793569, at *1
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(E.D. Pa. Dec. 9, 1997) (citations omitted). Suffice it to say, it failed. The overwhelming gist of
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the authorities referred to in the Letter agrees with the court in Puritan Investment, a case that
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Muench cited and which the Court quotes at length below since it is on all fours with this case:
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Plaintiff does not explain why the desired records were not obtained through a
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proper Rule 34 document request before the discovery deadline. Plaintiff bears the burden
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of preparing its own case for trial. Any documents it wished to peruse which were not
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voluntarily disclosed should have been timely demanded through formal discovery
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procedures.
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Plaintiff does not and credibly could not aver that it was unaware of the possible
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existence of the subpoenaed documents before the discovery deadline. See McNerney v.
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Archer Daniels Midland Co., 164 F.R.D. 584, 588 (W.D.N.Y. 1995) (“when a [party] . . .
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is aware of the existence of documents before the discovery cutoff date and issues
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discovery requests including subpoenas after the discovery deadline has passed, then the
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subpoenas and discovery requests should be denied”). The documents plaintiff now seeks
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are standard records routinely maintained by corporations. Moreover, plaintiff’s
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contention that defendants knew since the informal May 1997 meeting that such records
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might be used by plaintiff to support its alter ego theory shows that plaintiff itself was
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aware of the existence of such documents months before the close of discovery.
United States District Court
Northern District of California
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The only reasonable conclusion from the record presented is that plaintiff is
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attempting to use trial subpoenas improperly as a discovery device on the eve of trial. See
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Thompson v. Glenmede Trust Co., 1996 WL 529691, *1 (E.D. Pa. Sept. 16, 1996) (unjust
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and burdensome to require party on eve of trial to produce documents pursuant to
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subpoena served after discovery deadline).
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The same is true here. For the foregoing reasons, the Court QUASHES the subpoena
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duces tecum issued to Corbis by Muench.
IT IS SO ORDERED.
Dated: August 29, 2013
______________________________________
WILLIAM H. ORRICK
United States District Judge
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