B&D Nutritional Ingredients v. Unique Bio Ingredients, LLC et al

Filing 228

ORDER granting in part and denying in part 226 and 221 Motion to Quash and Motion for Protective Order. Please see Order for details. Signed by Magistrate Judge Barry S. Seltzer on 7/24/2017. (pb00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-62364-CIV-COHN/SELTZER
B&D NUTRITIONAL INGREDIENTS, INC.,
a California corporation,
Plaintiff,
vs.
UNIQUE BIO INGREDIENTS, LLC, d/b/a
UNIQUE BIOTECH USA, a Florida limited liability
company, JAIRO ESCOBAR, an individual,
LUIS ECHEVERRIA, an individual,
RATNA SUDHA MADEMPUDI, an individual,
and UNIQUE BIOTECH LIMITED, an
Indian corporation,
Defendants.
________________________________/
ORDER
THIS CAUSE has come before the Court pursuant to [DE 221] Non-Parties Brian
Baer and Viva 5 Corporation’s Emergency Motion to Quash Non-Party Subpoenas and for
Protective Order and [DE 226] Defendant’s Motion to Quash or Motion for a Protective
Order. Both motions relate to a subpoena duces tecum served upon Viva 5 Corporation
(“Viva 5")1 by Plaintiff B&D Nutritional Ingredients, Inc. (“B&D”). The subpoena compels
the appearance of a corporate representative/records custodian of Viva 5 Corporation and
the production of purchase orders and invoices for Unique IS2 or any other probiotics
purchased or sold by Viva 5. The purchases orders and invoices requested relate to eight
different entities: Defendant Unique Biotech Ingredients, LLC d/b/a Unique Biotech USA,
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The non-parties’ motion originally sought to reschedule the depositions of both Brian
Baer and Viva 5's corporate representative; the parties have reached an agreement on the
date and time of the depositions and, therefore, the motion currently only involves Viva 5.

Plaintiff B&D, Defendant Unique Biotech India, and non-parties Pharmacenter, Pharmavite,
ReNew Life, and NBTY.
Viva 5 moves to quash the subpoena duces tecum on several grounds: (1) the
information sought is confidential and proprietary and should not be disclosed to
competitors; (2) complying with the subpoena duces tecum would place a significant
burden on Viva 5 in terms of cost and time for compliance; (3) Plaintiff can obtain certain
of the documents from its own records and from the Defendants and, therefore, should not
burden a non-party with the requests; and (4) certain of the entities are not parties to the
litigation or mutual customers of the parties and, therefore, the documents requested are
not relevant to the claims or defenses in this litigation.
Defendants have also raised several arguments in moving to quash the subpoena
duces tecum: (1) the subpoena was not served upon Defendants in advance as required
by Fed. R. Civ. P. 45(a)(4); and (2) the subpoena requests documents pertaining to entities
that are not mutual customers of the parties and, therefore, are not relevant to the claims
or defenses in this litigation.
The Court previously postponed the depositions in question [DE 222], thereby
rendering moot the arguments about prior service of the subpoena and lack of adequate
time to respond. As far as the financial impact on Viva 5, Plaintiff has agreed to cover
reasonable fees and costs incurred by Viva 5 in complying with the subpoena and has
asked for an estimate of the same. The only remaining issues therefore, are the
confidential nature of the documents and the relevancy of the information requested.
All of the entities in this litigation, including Viva 5, are competitors and current or
former customers of each other. The Court, therefore, has consistently recognized the
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confidential nature the parties’ business records, including customer lists. Confidentiality
is also properly a concern of a non-party such as Viva 5.

There is, however, a

Confidentiality Order in this case [DE 170] that protects confidential information. Plaintiff
has agreed that the Confidentiality Order would apply to all documents produced by Viva
5. The Court agrees that the Confidentiality Order would provide appropriate protection
to whatever documents Viva 5 is ordered to produce.
As for the issue of relevancy, the Court agrees with Viva 5 and the Defendants that
documents pertaining to entities not on the parties’ joint customer list are not relevant to
the claims or defenses in this litigation. The claims in this case are that Defendants have
misappropriated Plaintiff’s customer list and are selling products to Plaintiff’s customers.
The customer list has been produced and Viva 5 is the only customer that Plaintiff and
Defendants hold in common. Plaintiff argues that Pharmacenter, Pharmavite, ReNew Life,
NBTY, as well as Viva 5 itself, were its customers and that “Defendants are selling directly
or indirectly through Viva 5.” This argument goes far beyond the allegations in the
Complaint [DE 1], and the documents pertaining to the non-customers are therefore not
relevant. Plaintiff may seek production from Viva 5 of documents pertaining sales from
Defendants to Viva 5, but not of sales by Viva 5 to non-parties. Accordingly, it is hereby
ORDERED AND ADJUDGED that Non-Parties Brian Baer and Viva 5 Corporations’
Emergency Motion to Quash Non-Party Subpoenas and for Protective Order [DE 221] and
Defendants’ Motion to Quash or Motion for Protective Order [DE 226] are GRANTED IN
PART AND DENIED IN PART. The subpoena duces tecum served upon Viva 5 is
QUASHED in all respects except that Viva 5 shall appear for deposition and produce the

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documents pertaining to Unique Biotech Ingredients LLC d/b/a Unique Biotech USA, B&D,
and Unique Biotech India. The Confidentiality Order [DE 170] previously entered in this
case is extended to include Viva 5 and is incorporated herein by reference. Plaintiff B&D
shall be responsible for reasonable costs and fees incurred by Viva 5 in producing the
documents responsive to the subpoena duces tecum. Viva 5's request for a hearing is
DENIED.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 24th day of
July 2017.

Copies furnished counsel via CM/ECF

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