Swanson v. Alza Corporation

Filing 156

ORDER by Judge Kandis A. Westmore denying 143 Motion to Quash. (kawlc1, COURT STAFF) (Filed on 4/25/2014)

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1 2 United States District Court Northern District of California 3 4 5 6 7 8 9 Case No.: CV 12-04579-PJH (KAW) DR. JAMES M. SWANSON, Plaintiffs, ORDER DENYING NON-PARTY MARCEL KINSBOURNE’S MOTION TO QUASH v. ALZA CORPORATION, (Dkt. No. 143) Defendants. 10 United States District Court Northern District of California 11 12 13 14 On March 16, 2014, Non-party Marcel Kinsbourne, M.D. filed a motion to quash Plaintiff Dr. James M. Swanson’s subpoena. (Kinsbourne’s Mot., Dkt. No. 143.) In accordance with Civil L.R. 7-1(b), this matter is deemed suitable for disposition 15 without hearing. In light of moving papers and documents submitted by the parties, and for the 16 reasons set forth below, the Court DENIES Dr. Kinsbourne’s motion to quash. 17 18 DISCUSSION According to Dr. Kinsbourne, he served as Dr. Swanson’s “supervisor and co-investigator 19 in several medical research projects which resulted in several peer reviewed medical journal 20 articles co-authored by Dr. Kinsbourne and [Dr.] Swanson.” (Kinsbourne’s Mot. at 3.) It was the 21 methodology introduced in those articles that inspired further studies by Plaintiff, which he 22 alleges ALZA used in their inventions. Id. 23 As a result, Dr. Kinsbourne was asked to provide a declaration in support of Plaintiff’s 24 claims. (Kinsbourne’s Mot. at 3; Pl.’s Opp’n, Dkt. No. 147 at 3-4.) On April 24, 2013, Dr. 25 Kinsbourne’s signed declaration was received with his CV. (Decl. of Gerald P. Dodson in Supp. 26 of Pl.’s Opp’n, “Dodson Decl.,” Dkt. No. 149 ¶ 15.) On July 1, 2013, ALZA served a subpoena, 27 which commanded Dr. Kinsbourne to locate and produce numerous documents, many of which 28 are allegedly unrelated to the instant action. (See Kinsbourne Mot. at 3.) Plaintiff’s counsel 1 agreed to provide Dr. Kinsbourne with legal representation “for the purposes of responding to the 2 subpoena to produce documents served by ALZA on July 1, 2013.” (Dodson Decl. ¶ 16.) By 3 September 2013, Plaintiff’s counsel and Dr. Kinsbourne had a falling out, and on September 16, 4 2013, Dr. Kinsbourne retained new counsel. (Dodson Decl. ¶¶ 17-19.) 5 Ultimately, Dr. Kinsbourne sought to withdraw his declaration in order to remove himself 6 from the legal dispute. (Kinsbourne’s Reply, Dkt. No. 152 at 3.) In exchange, ALZA agreed not 7 to compel compliance with its subpoena. (See Kinsbourne’s Reply at 3; Pl.’s Opp’n t 4; Dodson 8 Decl. ¶ 20.) 9 On November 20, 2013, Plaintiff served a deposition subpoena on Dr. Kinsbourne to appear on December 16, 2013. (Subpoena, Pl.’s Opp’n, Ex. A, Dkt. No. 147-1.) The subpoena 11 United States District Court Northern District of California 10 also required that Dr. Kinsbourne produce “[a]ny and all correspondence between you, or your 12 representatives, and Defendant ALZA Corporation and/or counsel for ALZA Corporation 13 between September 4, 2013 and the date of your deposition.” Id. Plaintiff contends that Dr. 14 Kinsbourne’s deposition testimony is “critical to resolution of this case in a fair and just manner” 15 because many of Dr. Kinsbourne’s “insights seriously undercut ALZA’s claim that it developed 16 the methods of the ‘129 Patent.” (Pl.’s Opp’n at 3.) 17 Plaintiff also correctly states that “Dr. Kinsbourne’s real complaint is with ALZA’s 18 subpoena for documents served on him on July 1, 2013....” Id. at 4. In both his motion and reply, 19 Dr. Kinsbourne does not allege that Plaintiff’s subpoena is overbroad or unduly burdensome, 20 because it is not. Rather, Dr. Kinsbourne appears to be upset that Plaintiff refuses to “join [him] 21 as a plaintiff in this case despite his clear contribution to the invention in question” and otherwise 22 refuses to compensate him for his time. (Kinsbourne’s Reply at 2.) Dr. Kinsbourne goes so far as 23 to claim that participating in this case in any form, without compensation, is commensurate with 24 slavery and is a constitutional violation under the Thirteenth Amendment. (Kinsbourne’s Reply at 25 1-2.) This argument is patently frivolous, and an improper basis for a motion to quash a subpoena 26 under Rule 45. 27 28 Additionally, Dr. Kinsbourne cites Rule 45(c)(3)(B) to support his claim that he should be compensated. As an initial matter, there is no Rule 45(c)(3)(B). (Pl.’s Mot. at 5.) The Court 2 1 assumes that Dr. Kinsbourne is referring to Rule 45(d)(3)(C)(ii), which provides for 2 compensation for unretained expert witnesses who are providing an “opinion or information that 3 does not describe specific occurrences in dispute and results from the expert’s study that was not 4 requested by a party.” See also Fed. R. Civ. P. 45(d)(3)(B)(ii). Dr. Kinsbourne’s testimony is 5 directly related to Plaintiff’s claims that ALZA infringed on the ‘129 Patent, and so he is not 6 entitled to compensation for responding to a subpoena. Accordingly, Dr. Kinsbourne’s motion to 7 quash is denied. CONCLUSION 8 9 For the reasons set forth above, the Court DENIES Non-party Dr. Kinsbourne’s motion to quash. Dr. Kinsbourne is ordered to meet and confer with the parties to schedule a deposition to 11 United States District Court Northern District of California 10 occur within the next 30 days, or on another mutually agreed upon date, in accordance with the 12 federal rules. 13 14 IT IS SO ORDERED. Dated: April 25, 2014 ___________________________ KANDIS A. WESTMORE United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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