XY, LLC v. Trans Ova Genetics, L.C.

Filing 16

ORDER by Magistrate Judge Boyd N. Boland on 12/3/14. The Motion to Quash 2 is DENIED; and Intrexon shall produce documents responsive to XY's subpoena on or before 12/10/2014, and shall make a witness available to testify under Fed. R. Civ. P. 30(b)(6) within a reasonable time thereafter, as may be agreed among the parties and Intrexon. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-mc-00234-WJM-BNB
XY, LLC,
Plaintiff,
v.
TRANS OVA GENETICS, L.C.,
Defendant,
and
INTREXON CORP.,
Third-Party Movant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Third-Party Intrexon’s Motion to Quash Subpoena [Doc. # 2]
(the “Motion to Quash”). I held a hearing on the Motion to Quash this morning and made
rulings on the record, which are incorporated here. The Motion to Quash is DENIED.
Intrexon’s stubborn opposition to XY’s subpoena and its refusal to disclose definitively
its “ultimate parent,” despite direct inquiry by XY’s counsel and by me at today’s hearing, is a
violation of Local Rule 7(m) of the United States District Court for the District of Columbia and
stands at the border of violating 28 U.S.C. § 1927 (unreasonably and vexatiously multiplying
proceedings).
XY’s subpoena calls for the production of the following
All studies, surveys, analyses and reports that were prepared by or
for any Intrexon officers, directors, or employees exercising
similar functions, for the purpose of evaluating or analyzing

Intrexon’s pending acquisition of Trans Ova with respect to market
shares, competition, competitors, markets, and potential for sales
growth or expansion into product or geographic markets, as called
for under the Hart-Scott-Rodino Antitrust Improvements Act (i.e.,
evaluation and analysis contained in HSR Act 4(c) Documents).
Subpoena [Doc. # 2-1] at p. 27. Intrexon admits that responsive documents exist:
A submission under the HSR Act relating to the acquisition of
TOG, and possibly including “HSR Act 4(c) Documents” of the
Subpoena, was prepared by the ultimate parent of Intrexon. At the
ultimate parent’s request, Intrexon supplied the ultimate
parent with certain market information that Intrexon obtained
from public sources and from TOG. Upon information and
belief, the ultimate parent sought such information as part of
its effort to gather information which might have been relevant
to its HSR submission.
Declaration of Donald P. Lehr [Doc. # 2-3] (“Lehr Decl.”) at ¶7 (emphasis added).
Notwithstanding the existence of these obviously responsive documents, which Intrexon
does not claim to be beyond its control, Intrexon refused to produce anything and filed the
Motion to Quash, relying principally on the argument that the “HSR4(c) Documents were
prepared and submitted by the ultimate parent of Intrexon, not by Intrexon, as required by the
law. . . . Intrexon did not prepare the requested documents and is not in possession or control of
such documents. Motion to Quash [Doc. # 2] at p. 1.
Intrexon also refused to identify its “ultimate parent,” arguing that “Intrexon is not
required to do so,” “is not required to cooperate with XY in its effort to fish for third-party
information,” “is not required to expose its parent (or anyone else) to an invasive subpoena,” and
“is not required to facilitate XY’s discovery. . . .” Reply [Doc. # 11] at p. 7. To the contrary, 28
U.S.C. § 1927 precludes Intrexon’s counsel from unreasonably and vexatiously multiplying
these proceedings, and Local Rule 7(m) of the United States District Court for the District of

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Columbia requires Intrexon to discuss in good faith discovery disputes and to narrow areas of
disagreement.
The discovery called for in XY’s subpoena is obviously and directly relevant to Trans
Ova’s monopolization claims, including Trans Ova’s assertion that sexed semen is a relevant
market apart from conventional semen.
The Hart-Scott-Rodino Act does not here create an expectation of confidentiality or an
immunity from discovery of the disputed material because the information commanded by XY’s
subpoena is relevant to a judicial proceeding. See 15 U.S.C. §18a(h).
Intrexon’s claim of undue burden is not persuasive nor adequately supported by
evidence. The materials called for are discrete. The only evidence of burden is Mr. Lehr’s
conclusory statement that compliance would require “considerable time, effort and expense. . . ,”
Lehr Decl. [Doc. # 2-3] at ¶12, which is insufficient.
I find that Intrexon and/or it counsel have engaged in abusive litigation tactics in
connection with the failure to respond to XY’s subpoena and surrounding conduct, which I will
not tolerate. Future misconduct will result in the imposition of sanctions under 28 U.S.C. §
1927; Fed. R. Civ. P. 45(g); or other authority.
IT IS ORDERED:
(1)

The Motion to Quash [Doc. # 2] is DENIED; and

(2)

Intrexon shall produce documents responsive to XY’s subpoena on or before

December 10, 2014, and shall make a witness available to testify under Fed. R. Civ. P. 30(b)(6)
within a reasonable time thereafter, as may be agreed among the parties and Intrexon.

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Dated December 3, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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