Board of Regents, The University of Texas System et al v. Boston Scientific Corporation

Filing 303

MEMORANDUM ORDER re 284 BSC's motion to quash Plaintiffs' subpoena is GRANTED-IN-PART and DENIED-IN-PART. Signed by Judge Gregory B. Williams on 1/20/23. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BOARD OF REGENTS, THE UNIVERSITY
OF TEXAS SYSTEM and TISSUEGEN, Inc.
Plaintiffs,
Civil Action No. 18-392-GBW
V.

BOSTON SCIENTIFIC Corp.
Defendant.

MEMORANDUM ORDER
On January 25, 2023, Plaintiffs Board of Regents, The University of Texas System and
TissueGen, Inc. (collectively, "Plaintiffs") served upon Defendant Boston Scientific ("BSC") a
subpoena under Federal Rule of Civil Procedure 45 that requires BSC to produce representatives
to testify live at trial on four topics. D.I. 284-1. BSC has moved to quash the subpoena via a letter
brief. D.I. 284. For the reasons stated below, the Court grants BSC's motion in part.
BSC's letter brief asserts three grounds to quash Plaintiffs' subpoena: First, BSC argues
that no provision of Rule 45 requires a company to designate a representative to testify in person
on specific topics at trial. D.I. 284 at 1. Plaintiffs respond that "[m]ultiple courts permit trial
subpoenas seeking corporate witnesses identified by particular topics." D.I. 287 at 1 (citing cases).
Second, BSC argues that "Plaintiffs' Trial Subpoena . . . named and was served on a corporation
and not a 'named person"' as Rule 45(b )(1) requires. D.I. 284 at 2. Plaintiffs respond that "person"
in the Federal Rules includes a corporation. D.I. 287 at 2. Third, BSC argues that any person
compelled to testify would be outside the 100 mile radius within which the Court can compel their
attendance at trial. D.I. 284 at 2-3. Plaintiffs respond that BSC is a Delaware corporation and that
Plaintiffs directed their subpoena to BSC, not to an individual. D.I. 287 at 2.

Rule 45 permits a subpoena to issue that "command[ s] each person to whom it is directed
to ... attend and testify[,]" including at trial. Fed. R. Civ. P. 45(a)(l)(A)(iii). Both parties
acknowledge the lack of Third Circuit and District of Delaware caselaw on point. See D.I. 287 at
1; D.I. 284 (citing primarily out-of-circuit caselaw). The decision to quash a subpoena under Rule
45 is subject to a district court' s discretion. See Shahin v. Delaware, 563 F. App'x 196, 200 (3d
Cir. 2014); Duffy v. Kent Cnty. Levy Ct., 800 F. Supp. 2d 624, 627-28 (D. Del. 2011).
The Third Circuit recently explained in a non-precedential case that a subpoena, issued
under Rule 45, that was served on an individual' s attorney, rather than on the individual, "failed
to comply with the requirements of the Rule[,]" but that this failure was not material under the Fair
Debt Collection Practices Act. Simon v. FIA Card Servs. NA , 639 F. App' x 885, 886, 889 (3d Cir.
2016). In an earlier non-precedential case, the Third Circuit upheld a district court' s decision not
to hold an agency of the State of Delaware in contempt for failure of a former employee to appear
for a deposition under Rule 45(e) because " [t]he responsibility for compelling a non-party fact
witness to appear for a deposition rests with the plaintiff, and not the District Court or opposing
counsel." Shahin, 563 F. App 'x at 200. The Third Circuit has deferred to the plain language of
Rule 45 and interpreted the Rule in light of other Federal Rules. For example, the Third Circuit
explained that, prior to amendments in 1991 , the plain language of Rule 45 permitted a district
court to require an individual to testify and, if so compelled, to bring documents with them. Hay

Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 408 (3d Cir. 2004). Thus, the Third Circuit
wrote, "nothing in Rule 45 gave the court the power to issue documents-only subpoenas to nonparties." Id. That plain meaning analysis proved compelling when interpreting a similar provision
of the Federal Arbitration Act. Id. at 408-09. Similarly, the Third Circuit distinguished narrower
sanctions available under Rules 37(b)(l) and 45(e), which apply to non-parties, from broader

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sanctions available under Rule 37(b)(2), which applies only to parties. Gen. Ins. Co. ofAm. v. E.

Consol. Utilities, Inc., 126 F.3d 215,221 (3d Cir. 1997).
Out-of-Circuit caselaw, while more on point, has been inconsistent. In 1987, the Ninth
Circuit held that a district court did not abuse its discretion when the court quashed a subpoena
under Rule 45 directed towards a corporation because it had "discovered no authority . .. for the
proposition that the Rule 30 standards [that permit subpoenas upon a corporation] should govern
Rule 45 subpoenas of witnesses." Donoghue v. Orange Cnty., 848 F.2d 926, 932 (9th Cir. 1987).

In 2013 , a California district court distinguished the Ninth Circuit' s ruling as having "emphasized
a trial court' s discretion" and as coming prior to 1991 amendments to Rule 45. See HTC Corp. v.

Tech. Properties Ltd. , 2013 WL 12166376, at *2 & n.9 (N.D. Cal. Sept. 20, 2013). That case
relied, in part, see id. , on a 2013 case, Conyers, in which a district court also required a corporate
party to "comply with [a Rule 45] subpoena by producing its corporate representative at trial[,]"

Conyers v. Balboa Ins. Co., 201 3 WL 2450108, at *2 (M.D. Fla. June 5, 2013 ). However, the
Sixth Circuit, in 2015, appeared to reject the Conyers decision and stated that a party which seeks
to have a corporate representative testify at trial has two options: "subpoena a corporate witness
who either 'resides, is employed, or regularly transacts business in person' in [the state]" or "take[]
a deposition of a corporate officer during discovery for its use at trial." Hill v. Homeward

Residential, Inc. , 799 F.3d 544, 553 (6th Cir. 201 5) (quoting Fed.R.Civ.P. 45(c)(l)(B)). The Sixth
Circuit, however, held that the "subpoena failed several aspects" of Rule 45 , and concluded that
"the district court did not abuse its discretion in enforcing [Rule 45] as written." Id. at 552-53 .
Here, the Court finds that the plain text of Rule 45 prohibits directing a subpoena to attend
trial to a corporation and that, even if it did not, the Court would exercise its discretion to quash
the subpoena.

Rule 30(b)(6) permits a party to "name as the deponent a public or private

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corporation" and "describe with reasonable particularity the matters for examination" and requires
the "named organization" to "designate" an individual "to testify on its behalf .... " Rule 45, by
comparison, nowhere mentions a corporation. Instead, Rule 45(a)(l)(A)(iii) permits a subpoena
to "command each person to whom it is directed to . .. attend and testify . . .. " Even if "person"
included a corporation, the lack of a provision in Rule 45 that is similar to Rule 30(b)(6) suggests
no similar power was intended under Rule 45 . Both the Third Circuit's focus on the plain meaning
of the Federal Rules, see Elliott v. Archdiocese of New York, 682 F.3d 213, 225 (3d Cir. 2012)
("'[T]he Federal Rules of Civil Procedure, like any other statute, should be given their plain
meaning."' (citation omitted)), and the Sixth Circuit's analysis in Hill support this result.
However, even if the Court incorrectly interprets the maximum scope of its powers under
Rule 45 here, the Court would still exercise its discretion to grant BSC' s motion to quash.
Plaintiffs indicated their interest in live testimony by Ms. Mary Beth Moynihan and Dr. Yen-Lane
Chen and admitted that both "were previously designated as [Rule] 30(b)(6) witnesses . ... " D.I.
287 at 2. Thus, Plaintiffs had the opportunity to question both witnesses at an earlier stage of the
trial and may now use their depositions at trial, consistent with the Federal Rules of Evidence and
Federal Rules of Civil Procedure. Plaintiffs' subpoena raises four topics: certain submissions to
the Food and Drug Administration; a patent application by a BSC subsidiary; interactions between
BSC and its executives, on the one hand, and TissueGen, on the other; and the "creation" of certain
BSC documents. D.I. 284-1 . Plaintiffs provide no reason that they were unaware of these topics
during earlier phases of this litigation, so Plaintiffs could have deposed witnesses on these topics
before the eve of trial. Thus, the Court would exercise its discretion to quash Plaintiffs' subpoena.
Finally, Plaintiffs ask that the Court "exercise its discretion under Federal Rule of Evidence
61 l(a)" to "command attendance of Mary Beth Moynihan and Dr. Yen-Lane Chen .... " D.I. 287

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at 2-3. Under that Rule, "[t]he court should exercise reasonable control over the mode and order
of examining witnesses and presenting evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue
embarrassment." Fed. R. Evid. 61 l(a). For example, "[d]istrict courts have discretion to impose
reasonable limits on [] cross-examination" to avoid "interrogation that is repetitive or only
marginally relevant. " United States v. Friedman, 658 F.3d 342, 356 (3d Cir. 2011) (cleaned up).
It is also "within the trial court' s discretion to permit a defense expert to testify during the
plaintiff's case in order to accommodate the schedule of the witness[.]" Berroyer v. Hertz, 672
F.2d 334, 339 (3d Cir. 1982) (citing Fed. R. Evid. 61 l (a)). Here, the Court declines to exercise its
discretion to compel Ms. Moynihan and Dr. Chen to testify in person, since Plaintiffs admitted that
they had an opportunity to take Ms. Moynihan' s and Dr. Chen's testimony previously and may
use that deposition testimony during trial. BSC has indicated that it will only call Dr. Chen by
deposition, but that it may call Ms. Moynihan live. D.I. 277 at 2. IfBSC calls either witness live,
the Court agrees with Plaintiffs that they should be permitted to do so as well.

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WHEREFORE, at Wilmington this ~t~V\of January, 2023, IT IS HEREBY ORDERED
that BSC's motion to quash Plaintiffs' subpoena is GRANTED-IN-PART and DENIED-INPART:

1. The motion to quash is GRANTED to the extent that Plaintiffs attempt to use the subpoena
to compel BSC to produce an unidentified witness at trial to testify about previously
undisclosed topics during trial similar to a Rule 30(b )( 6) discovery procedure;
2. The motion to quash is DENIED to the extent that BSC produces its officers, Ms. Mary
Beth Moynihan and Dr. Yen-Lane Chen, at trial to testify in person. If BSC intends to call
or calls Ms. Moynihan or Dr. Chen to testify live at any point during the trial, then Plaintiffs
shall have the opportunity to call them live as well during their case-in-chief, on crossexarnination, or during rebuttal; and
3. BSC shall inform the Court, no later than the first day of trial, whether it will call Ms.
Moynihan and/or Dr. Chen during Phase 1 and/or Phase 2 of the trial.

GREGORY B. WILLIAMS
UNITED STATES DISTRICT JUDGE

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