GEOMC Co, Ltd. v. Competitive Technologies, Inc.
Filing
332
ORDER denying 322 Motion to Quash. For the reasons described in the attached order and ruling, the motion to quash is DENIED. Signed by Judge Victor A. Bolden on 10/30/2020. (Millat, C.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
GEOMC CO., LTD.,
Plaintiff,
v.
No. 3:14-cv-1222 (VAB)
CALMARE THERAPEUTICS, INC.,
Defendant.
RULING ON MOTION TO QUASH
Calmare Therapeutics, Inc. (“Plaintiff” or “Calmare”) has moved to quash the third-party
subpoena served in September 2020 by Defendant GEOMC Co., Ltd. (“GEOMC”) on the
William B. Meyer Warehouse (the “Warehouse”). Def. Calmare Therapeutics, Inc.’s Mot. to
Quash or Modify GEOMC’s Subpoena Served on the William B. Meyer Warehouse, ECF No.
322 (Oct. 2, 2020) (“Calmare Mot.”); see also Subpoena to Produce Docs., Info. or Objects or to
Permit Inspection of Premises in a Civil Action, ECF No. 323-1, Ex. A (Oct. 2, 2020) (the
“Warehouse Subpoena”).
The Warehouse Subpoena seeks “[a]ll documents and communications concerning
accounts in the name of, for the account of, pertaining to, or in any other way involving . . .
[Calmare] relating to the storage of Calmare scrambler therapy devices [(the “Devices”)]”
located at the Warehouse “from September 25, 2007 to the present[,] including but not limited to
all account statements and invoices, receipts and packing slips, inventory records, audit reports,
and photographs.” Warehouse Subpoena, Schedule A, at 5.
Calmare argues that the GEOMC subpoena is untimely, seeks irrelevant information
regarding unsold devices, and is duplicative and overbroad.
1
GEOMC argues that Calmare lacks standing to challenge the third-party subpoena and
that the subpoena is timely, its requests are relevant, and it is not duplicative or overbroad.
For the reasons explained below, the motion to quash is DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Familiarity with the factual allegations and procedural history of this action is assumed.
See Summ. Order, ECF No. 244 (Mar. 14, 2019); Mandate, ECF No. 245 (June 4, 2019); Ruling
and Order on Discovery Disputes, ECF No. 328 (Oct. 13, 2020) (the “Discovery Order”).
On March 14, 2019, the Second Circuit issued a summary order vacating the Court’s
September 29, 2017 judgment and remanding the case for further proceedings consistent with the
summary order. Summ. Order.
On July 3, 2019, the Court issued a scheduling order setting November 22, 2019 as the
deadline for the completion of discovery. Stipulation and Scheduling Order, ECF No. 250 (July 3,
2019) (the “Initial Scheduling Order”).
On November 12, 2019, the parties jointly moved to amend the Initial Scheduling Order,
requesting an extension of time as to the deadlines for depositions, dispositive motions, responses
to dispositive motions, and reply briefs in support of dispositive motions given the parties’ ongoing
discovery disputes. Joint Mot. to Amend Scheduling Order, ECF No. 254 (Nov. 12, 2019) (“Joint
Mot. to Amend”).
On December 10, 2019, the parties jointly moved for a discovery conference, stating that
although they had met and conferred in good faith, they were unable to resolve a series of d iscovery
disputes. Joint Mot. for Discovery Conference, ECF No. 261 (Dec. 10, 2019). The next day, the
Court scheduled a discovery conference for January 6, 2020. Order, ECF No. 262 (Dec. 11, 2019);
Notice, ECF No. 264 (Dec. 11, 2019).
2
After several adjournments, see Order, ECF No. 268 (Jan. 3, 2020); Order, ECF No. 277
(Jan. 8, 2020); Order, ECF No. 280 (Jan. 14, 2020); Order, ECF No. 285 (Feb. 7, 2020), the status
conference was cancelled, see Cancellation Notice (Mar. 6, 2020).
On July 17, 2020, GEOMC moved for a telephonic status conference, noting that they had
retained new counsel. Mot. for Status Conference, ECF No. 307 (July 17, 2020). On July 20, 2020,
the Court granted the motion, Order, ECF No. 308 (July 20, 2020).
On August 18, 2020, following the status conference, the Court ordered that the parties, by
September 25, 2020, file a joint status report to include any outstanding discovery issues and a
proposed schedule. Order, ECF No. 318 (Aug. 18, 2020) (“August 18, 2020 Order”).
On September 8, 2020, GEOMC served a third-party subpoena on the Warehouse, setting
a date of October 11, 2020, to produce the following:
All documents and communications concerning any accounts in the
name of, for the account of, pertaining to, or in any other way
involving Competitive Technologies, Inc. and/or Calmare
Therapeutics Incorporated relating to the storage of Calmare
scrambler therapy devices (MC-5 or MC-5A) at the warehouse of
William B. Meyer, Inc., 255 Long Beach Blvd., Stratford,
Connecticut 06607 from September 25, 2007 to present including
but not limited to all account statements and invoices, receipts and
packing slips, inventory records, audit reports, and photographs.
Warehouse Subpoena, Schedule A, at 5.
On September 25, 2020, the parties filed a joint status report. Joint Status Report, ECF
No. 15 (Sept. 25, 2020). The report stated that though the parties had met and conferred in good
faith, they were unable to resolve many of the issues identified in the Joint Motion. 1 Id. at 1.
On October 2, 2020, Calmare moved to quash the Warehouse Subpoena. Calmare Mot.
Specifically, the Joint Status Report stated that they parties had resolved only “one issue identified in the Joint
Motion[:] (Item A(1)(a)).” Id.
1
3
On October 6, 2020, GEOMC opposed Calmare’s motion to quash. GEOMC’s Opp’n to
Calmare Mot., ECF No. 324 (Oct. 6, 2020) (“GEOMC Opp’n”).
That same day, the Court held a discovery conference by Zoom to discuss the outstanding
discovery disputes outlined in the Joint Status Report, as well as the motion to quash the
Warehouse Subpoena. Minute Entry, ECF No. 326 (Oct. 6, 2020).
On October 11, 2020, the Court ordered Calmare to file its reply to GEOMC’s motion in
opposition by October 16, 2020 and extended the time to comply with the Warehouse Subpoena
until October 26, 2020. Order, ECF No. 327 (Oct. 11, 2020).
On October 13, 2020, the Court issued a ruling and order resolving the parties’ outstanding
discovery disputes outlined in the Joint Motion and Joint Status Report. Discovery Order.
On October 16, 2020, Calmare filed a reply to GEOMC’s opposition to Calmare’s motion
to quash. Def. Calmare’s Reply in Support of its Mot. to Quash or Modify the Warehouse
Subpoena, ECF No. 330 (Oct. 16, 2020) (“Calmare Reply”).
On October 26, 2020, the Court extended the time to comply with the Warehouse Subpoena
until November 6, 2020. Order, ECF No. 331 (Oct. 26, 2020).
II.
STANDARD OF REVIEW
Rule 26(b)(1) of the Federal Rules of Civil Procedure, as amended on December 1, 2015,
recognizes that “[i]nformation is discoverable ... if it is relevant to any party’s claim or defense
and is proportional to the needs of the case.” Fed. R. Civ. P. 26(b); Advisory Committee Notes to
2015 Amendments. Even after the 2015 amendments, “[r]elevance is still to be construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on any party’s claim or defense.” Bagley v. Yale Univ., No. 3:13-cv-01890 (CSH),
4
2015 WL 8750901, at *7 (D. Conn. Dec. 14, 2015) (citing State Farm Mut. Auto.Ins. Co. v.
Fayda, No. 14 Civ. 9792 (WHP) (JCF), 2015 WL 7871037 at *2 (S.D.N.Y. Dec. 12, 2015)).
Moreover, the district court has “wide latitude to determine the scope of discovery.” In
Re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008); Mirra v. Jordan, No. 13CV-5519 (KNF), 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016) (“Motions to compel are left
to the court’s sound discretion.”). “The objecting party bears the burden of demonstrating
specifically how, despite the broad and liberal construction afforded [by] the federal discovery
rules, each request is not relevant or how each question is overly broad, unduly burdensome or
oppressive.” Klein v. AIG Trading Grp. Inc., 228 F.R.D. 418, 422 (D. Conn. 2005) (internal
citations, quotation marks, and alterations omitted).
Under Rule 45(d)(3)(A), the court “must quash or modify a subpoena that: (i) fails to
allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical
limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or (iv) subjects a person to und ue burden.” Fed. R. Civ. P.
45(d)(3)(A). Motions to quash a subpoena are “entrusted to the sound discretion of the district
court.” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (quoting United States v. Sanders, 211
F.3d 711, 720 (2d Cir. 2000)).
III.
DISCUSSION
Calmare moves to quash the Warehouse Subpoena on the grounds that it (1) is untimely,
because it was allegedly served after the deadline for the end of discovery, Calmare Mot. at 5-7;
(2) seeks irrelevant information, particularly unsold Devices in inventory, id. at 7-9; and (3) is
duplicative and overbroad, because GEOMC has already requested these records from Calmare
5
and the information sought is duplicative of Calmare’s already-issued interrogatory responses and
forthcoming document production, id. at 9-11.
GEOMC responds that (1) Calmare lacks standing to quash the Warehouse Subpoena
because it was issued to a third party, GEOMC Opp’n at 8-9; (2) the Warehouse Subpoena is
timely, id. at 10-12; (3) the inventory and other records sought by the Warehouse Subpoena are
relevant, id. at 12-14; (4) GEOMC has a secured interest in the warehouse inventory, id. at 14-16;
and (5) the subpoena is not duplicative or overbroad, id. at 16-17.
Calmare responds that the Warehouse Subpoena is untimely because it was served over a
year after the September 2019 for written discovery in the action, Calmare Reply at 4 -5, and that
the Warehouse Subpoena’s requests for inventory records are particularly irrelevant, duplicative
and overbroad given the Court’s Discovery Order, id. at 5-6. Calmare reasserts that it has standing
to move to quash the Warehouse Subpoena, asking the Court to rely on courts outside of this
Circuit as persuasive authority, id. at 2-3, and argues further that the Court has discretion to sua
sponte bar the discovery sought if it finds it to be overly burdensome, id. at 3.
The Court turns first to the threshold questions of whether the Warehouse Subpoena is
timely and whether Calmare has standing to move to quash the Warehouse Subpoena.
A. Timeliness
Calmare argues that the Warehouse Subpoena was untimely served after the deadline for
discovery in this case because the Court “established July 26, 2019 as the deadline for written
discovery requests and September 27, 2019 as the deadline for all document production.” Calmare
Mot. at 6 (citing the Initial Scheduling Order). Calmare argues that although the Court has since
the issuance of the Initial Scheduling Order variously extended and vacated deadlines for
depositions and dispositive motions, the Court has not “indicated that a new document discovery
6
deadline also would be established.” Id. As Calmare argues, GEOMC “could have sought to
subpoena the Warehouse for the same inventory records sought in [the Warehouse Subpoena]
before the 2019 document production deadline but chose not to do so,”id., and the ongoing
discovery disputes do not “give GEOMC carte blanche to conduct additional document discovery
that it could have conducted before the document discovery deadline, whether of Calmare or third
parties.” Id. at 7.
GEOMC argues that the Warehouse Subpoena is timely because “[a]s shown by the Court’s
August 18, 2020 Order, discovery has not closed.” GEOMC Opp’n at 10. GEOMC notes that “[i]n
fact, the parties have yet to submit the proposed schedule referenced in that order which calls for,
inter alia, a date for the close of discovery,” and that Calmare agreed in the Joint Status Report
that “various deadlines—particularly those related to the completion of discovery” had not yet
been resolved. Id. With respect to the Initial Scheduling Order, GEOMC argues that it did not
“address third party discovery” and in any event “cannot be deemed complete or closed” given the
intervening discovery disputes. Id. at 11. GEOMC also argues that the Initial Scheduling Order
was vacated upon request of the parties. Id. at 11 (citing Joint Motion to Amend).
Calmare argues in response that the Initial Scheduling Order set a date for all “written
discovery,” and subpoenas are subject to “the same time constraints that apply to all of the other
methods of formal discovery.” Calmare Reply at 4 (quoting Initial Scheduling Order). Calmare
argues that GEOMC’s assertion that the Court has yet to establish a date for the “close of
discovery” is disingenuous and “takes the references to ‘discovery’ in the parties’ prior motions
and the Court’s prior orders out of context.” Id. at 4-5. In Calmare’s view, “[w]hen read in context,
those filings demonstrate that Court-ordered supplemental production (if any) and depositions of
7
witnesses are the only remaining ‘discovery’ in this action, for which deadlines must still be
established.” Id. at 5.
The Court disagrees.
The parties’ numerous filings and the Court’s orders since the Initial Scheduling Order,
considered alongside the Summary Order, make clear that the discovery window remains open not
only for deposition testimony but also for document production. Calmare itself argued after the
Initial Scheduling Order that it was entitled to significant document production from GEOMC,
including but not limited to bills of lading, the serial numbers and purchaser identities of certain
Devices, “documentation such as invoices and purchase orders,” “documents reflecting GEOMC’s
agreements and communications with . . . third parties,” and “all documents reviewed, used, or
referred to in responding to any of [Calmare’s] interrogatories,” which date back to GEOMC’s
sales of Devices as early as 2007. Calmare Submission, ECF No. 266 (Dec. 20, 2019); see also
Calmare’s First Set of Requests for Production of Documents on Remand to GEOMC, ECF No.
266-1, Ex. A (Dec. 20, 2019) (“Calmare Doc. Production Requests”); Calmare’s First Set of
Interrogatories or Remand to GEOMC, ECF No. 266-2, Ex. B (Dec. 20, 2019). In fact, Calmare’s
document production requests issued after the Initial Scheduling Order span seventeen categories
and seek information such as “[a]ll documents, communications and correspondence” relevant to
GEOMC sales of Devices. Calmare Doc. Production Requests at 8.
The Court therefore finds unpersuasive Calmare’s assertion that discovery remains open
only with respect to “Court-ordered supplemental production (if any) and depositions of
witnesses.” Calmare Reply at 5. Though Calmare may well view these requests as “supplemental
production” in response to the Second Circuit’s Summary Order, Calmare Reply at 5, Calmare
8
does not explain why the Warehouse Subpoena should be treated differently than Calmare’s
various document requests.
The Court agrees with Calmare that subpoenas are subject to “the same time constraints
that apply to . . . the other methods of formal discovery.” Pasternak v. Dow Kim, No. 10 Civ. 504
(LTS) (JLC), 2013 WL 1729564, at *1 (S.D.N.Y. Apr. 22, 2013). But the deadline for all written
discovery has not passed, given the parties’ intervening filings, the Court’s intervening orders,
including the August 18, 2020 Order, and Calmare’s own document production requests.
Accordingly, the Warehouse Subpoena was timely filed, and the Court turns to the issue
of standing.
B. Standing
Under Rule 45(d)(3)(A), the Court “must quash or modify a subpoena that (i) fails to allow
a reasonable time to comply, (ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).
Motions to quash are “entrusted to the sound discretion of the district court.” In re Fitch, Inc., 330
F.3d 104, 108 (2d Cir. 2003).
While Rule 26(b)(1)’s relevance standard governs a subpoena issued to a non -party under
Rule 45, see Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y. 2010) (citing During v. City Univ.
of N.Y., No. 05-cv-6992 (RCC) RLE, 2006 WL 2192843, at *2 (S.D.N.Y. Aug. 1, 2006) (collecting
cases)), in the Second Circuit, “a party usually does not have standing to object to a subpoena
directed to a non-party witness,” Langford v. Chrysler Motor Corp., 513 F.2d 1121, 1126 (2d Cir.
1975); Estate of Ungar v. Palestinian Auth., 332 F. App’x 643, 645 (2d Cir. 2009) (collecting
cases); see also Jacobs v. Conn. Cmty. Tech. Colls., 258 F.R.D. 192, 194-95 (D. Conn. 2009)
9
(“Ordinarily, a party does not have standing to move to quash a subpoena served on a third party.”)
(citing Chemical Bank v. Dana, 149 F.R.D. 11, 13 (D. Conn. 1993)).
Under Rule 45, the Court may, however, find that a party has standing to challenge a thirdparty subpoena if it “requires disclosure of privileged or other protected matter and no exception
or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii); see also Jacobs, 258 F.R.D. at 195 (finding
the plaintiff had standing to challenge a third-party subpoena where “the plaintiff clearly ha[d] a
personal privacy right and privilege with respect to the information” sought, his “psychiatric and
mental health records”); Dominion Resource Servs., Inc. v. Alstom Power, Inc., No. 3:16-cv-00544
(JCH), 2017 WL 3575892, at *4 (D. Conn. Aug. 18, 2017) (finding the plaintiff had standing to
challenge a third-party subpoena “only to protect any attorney-client communications, or
information protected by the work product doctrine”). “[A] challenge to a subpoena based on
grounds of relevance or burden may only be raised by the entity to which the subpoena is directed;
a party lacks standing to raise such challenges to a subpoena directed at a nonparty.” United States
Regional Econ. Dev. Auth., LLC v. Matthews, No. 3:16-cv-10193 (CSH), 2018 WL 2172713, at
*8 (D. Conn. May 10, 2018) (observing that “any burden that may result from compliance with
the subpoena would be borne by [the third party], not by Defendants”); see also Malibu Media,
LLC v. Doe No. 4, No. 12-cv-2950 (JPO), 2012 WL 5987854, at *2 (S.D.N.Y. Nov. 30, 2012)
(defendant lacked standing to move to quash a subpoena on grounds of undue burden); A&R Body
Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., No. 3:07-cv-929 (WWE), 2013
WL 6511934, at *2 (D. Conn. Dec. 12, 2013) (defendant lacked standing to challenge subpoena
directed to non-parties on grounds of undue burden and harassment).
10
Calmare argues that it nonetheless has standing to challenge the third -party Warehouse
Subpoena because “other courts nationwide have held that a party has standing to raise an undue
burden challenge to a non-party subpoena.” Calmare Reply at 2 (collecting cases).
The Court disagrees.
This Court need not depart from the Second Circuit’s guidance, echoed in courts across
this Circuit, that “[i]n the absence of a claim of privilege a party usually does not have standing to
object to a subpoena directed to a non-party witness.” Langford, 513 F.2d at 1126; Estate of Ungar,
332 F. App’x at 645 (citing 91 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2459 (3d ed. 2008) (“Ordinarily a party has no standing to seek to quash a subpoena
issued to someone who is not a party to the action, unless the objecting party claims some personal
right or privilege with regard to the documents sought.”)).
With respect to this exception, Calmare has not asserted any privacy interest or privilege
arising from the subpoena, which seeks the following:
All documents and communications concerning any accounts in the
name of, for the account of, pertaining to, or in any other way
involving [Calmare] relating to the storage of Calmare scrambler
therapy devices (MC-5 or MC-5A) at the warehouse of William B.
Meyer, Inc., . . . from September 25, 2007 to present including but
not limited to all account statements and invoices, receipts and
packing slips, inventory records, audit reports, and photographs.
See Warehouse Subpoena, Schedule A, at 5.
Courts in this Circuit have concluded that in some cases, “[i]nformation regarding a party’s
financial records may give rise to a privacy interest,” see KGK Jewelry LLC v. ESDNetwork, No.
11 Civ. 9236 (LTS) (RLE), 2014 WL 1199326, at *3 (S.D.N.Y. Mar. 21, 2014) (collecting cases),
particularly where discovery as to bank account records is sought from a non -party bank, see id.
The Warehouse Subpoena, however, does not expressly implicate similar privacy concerns, and
11
Calmare asserts none; to the contrary, Calmare argues that the evidence sought from the
Warehouse Subpoena is “duplicative and overbroad” of discovery it had already produced, or plans
to produce. See Calmare Mot. at 9-10. Absent such an asserted privacy or privilege interest,
Calmare does not have standing to challenge the subpoena. See Fed. R. Civ. P. 45(d)(3)(A)(iii).
The Court therefore need not, and does not, address the relevance or burden of the evidence sought.
Accordingly, the Court will deny Calmare’s motion to quash the Warehouse Subpoena.
IV.
CONCLUSION
For the reasons explained above, the motion to quash is DENIED.
SO ORDERED at Bridgeport, Connecticut, this 30th day of October, 2020.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?