TQ Delta LLC v. Pace Americas Inc.

Filing 322

MEMORANDUM ORDER Denying MOTION to Compel Production of Engineering Documents from Third-Party Broadcom (see 285 in 13-cv-2013-RGA, 301 in 13-cv-1835-RGA, 262 in 13-cv-1836-RGA, 129 in 14-cv-954-RGA, 132 in 15-cv-121-RGA). Plaintiff is DIRECTED to f ile a three-page letter brief addressing Broadcom's request for attorney's fees within one week of this Order. Broadcom is DIRECTED to file a responsive three-page letter brief within one week of Plaintiff's letter. Signed by Judge Richard G. Andrews on 6/13/2017. Associated Cases: 1:13-cv-01835-RGA, 1:13-cv-01836-RGA, 1:13-cv-02013-RGA, 1:14-cv-00954-RGA, 1:15-cv-00121-RGA(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TQ DELTALLC,
Plaintiff,

No. 13-cv-1835 (RGA)

V.

2WIREINC.,
Defendant.
TQ DELTALLC,
Plaintiff,

No. 13-cv-1836 (RGA)

v.
ZHONE TECHNOLOGIES INC.,
Defendant.
TQ DELTA LLC,
Plaintiff,
V.

No. 13-cv-2013 (RGA)

ZYXEL COMMUNICATIONS INC. and ZYXEL
COMMUNICATIONS CORP.,
Defendants.

TQ DELTALLC,
Plaintiff,
No. 14-cv-954 (RGA)
No. 15-cv-121 (RGA)

v.
ADTRAN, INC.,

Defendant.

MEMORANDUM ORDER

Plaintiff TQ Delta filed a motion to compel third party Broadcom to produce
engineering documents. (D.I. 301).1 Plaintiff served a subpoena on Broadcom for
these documents. (D.I. 302-1 at 2-20). Broadcom represents, and Plaintiff does not
dispute, that Broadcom timely objected to the subpoena. (D.I. 315 at 3). Thus, the
Federal Rules of Civil Procedure give Plaintiff the option to move to compel
compliance with the subpoena in "the district where compliance is required .... " Rule
45(d)(2)(B)(i).
Broadcom argues that Plaintiff is required to file the motion to compel in the
Central District of California, where Broadcom is located. Plaintiff responds by
arguing that Broadcom consented to jurisdiction here (D.I. 301 at 4; D.I. 319 at 2-3)
and that litigation of compliance with the subpoena in this Court would "not impose
any additional burden on Broadcom." (D.I. 319 at 3).

1

All docket citations are to Civil Action No. 13-1835.

2

Plaintiffs arguments miss the point. While the Rules specifically provide for
jurisdiction here, in the district where the litigation is pending, for issuance of the
subpoena, they vest jurisdiction over compliance with the subpoena in the "district
of compliance." Compare Rule 45(a)(2) ("A subpoena must issue from the court
where the action is pending.") with Rule 45(d)(2)(B)(i) ("At any time, on notice to the
commanded person, the serving party may move the court for the district where
compliance is required for an order compelling production or inspection") and Rule
37(1)(2) ("A motion for an order to a nonparty must be made in the court where the
discovery is or will be taken.").
Plaintiff does not contest that the district of compliance is the Central
District of California. Broadcom is incorporated in California and conducts its
business in Irvine, California. (See D.I. 316-1 at 2). Broadcom asserts that the
documents are located in the Central District. (D.I. 315 at 7). Plaintiff states that a
lawyer in Colorado provided the first round of production (D.I. 319 at 3), but does
not actually contest that the documents targeted by the request are located in the
Central District. Thus, Plaintiff must move for compliance with the subpoena in the
United States District Court for the Central District of California. Plaintiffs motion
(D.I. 301) is DENIED.
Broadcom requested an award of attorney's fees for opposing the motion. I am
inclined to grant Broadcom's request as I see no reasonable basis for Plaintiff to
believe that the District of Delaware was the proper jurisdiction for Plaintiffs
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motion. From the face of the rules, it is not. Plaintiff is DIRECTED to file a threepage letter brief addressing Broadcom's request for attorney's fees within one week
of this order. Broadcom is DIRECTED to file a responsive three-page letter brief
within one week of Plaintiff's letter. The parties should address the appropriate
source of authority for the award and whether the fees should be awarded in whole
or in part.
IT IS SO ORDERED this \) day of June 2017.

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