AGSouth Genetics LLC et al v. Georgia Farm Services LLC et al

Filing 165

ORDER granting 154 Motion to Quash. Ordered by Judge W. Louis Sands on 10/11/2013. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
AGSOUTH GENETICS, LLC, et al.,

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Plaintiffs,
v.
GEORGIA FARM SERVICES, LLC, et al.,
Defendants.

CASE NO.: 1:09-CV-186 (WLS)

ORDER
Presently pending before the Court is Plaintiffs’ Motion to Quash Subpoena to
Plaintiffs for Production at Trial. (Doc. 154.) On October 3, 2013, Defendant Georgia
Farm Services (“GFS”) served Plaintiffs with a subpoena duces tecum purporting to
require Plaintiffs to produce a wealth of documentation at trial. (Doc. 151-2 at 3.) On
October 7, 2013, Plaintiffs filed a Motion to Quash, claiming that GFS was attempting to
circumvent the discovery rules with the subpoena, and was abusing process and placing
an undue burden on Plaintiffs by requesting such a large volume of documentation eight
days before the start of trial. (Doc. 154 at ¶ 9, 10.) In its Response, GFS asserted that it
would be satisfied if Plaintiffs produced the “two (2) AGS 2000 license agreements with
its two (2) distributors (which GFS understands are owned by AGSouth shareholders).”
(Doc. 155 at 5.) As such, the Court will deem GFS’s assertion narrowing the scope of its
subpoena duces tecum as a request to likewise modify the same. Accordingly, the
following discussion pertains only to the subpoena duces tecum as modified.
Plaintiffs claim that the subpoena duces tecum should be quashed because it
circumvents the requirements of the Federal Rules of Civil Procedure. (See Doc. 154.)

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GFS maintains that the documents sought should have been disclosed with the Rule 26
disclosures, and are “directly relevant to the established royalty scheme for [AGS
2000.]” (Doc. 155 at 3.) Also, GFS claims that a subpoena duces tecum is an acceptable
procedural mechanism for it to obtain the documents at issue. (Id. at 2-3, 5.)
A subpoena duces tecum should not be used to circumvent the ordinary strictures
of discovery. See Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 354 (6th Cir.
1984). Instead, a subpoena duces tecum issued to a party should be treated as a
discovery device and all rules of discovery should likewise apply thereto.

See

Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995); Dees v. Hyundai
Motor Mfg. Ala., LLC, No. 2:07-CV-306-MHT, 2008 WL 821061, *1 (M.D. Ala. Mar. 25,
2008); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
2452 (3d ed. 2008). Discovery in this case lasted one year and ended on November 12,
2010, nearly three years ago.

(See Doc. 35.)

Because discovery has ended, “the

subpoena is untimely and is due to be quashed.” See Dees, 2008 WL 821061 at *1.
The Court also notes that before the close of discovery GFS filed a Motion to
Compel documents related to settlement agreements involving cases settled by
Plaintiffs. (Doc. 46.)

The purpose of seeking those documents was, among other

reasons, to “provide information related to damages [and] reasonable royalties.” (Id. at
4.) It is unclear why GFS did not seek the documents now sought at that time. Further,
GFS admits that one of its previous requests for production pertained to the documents
presently requested. (Doc. 155 at 2 n.1.) GFS does not attempt to explain why it did not
file a motion to compel. The Court finds it plain that the reason GFS seeks this evidence
with a subpoena duces tecum is because discovery has closed and the time to file a
motion to compel has passed. The Court will not enable parties to circumvent the

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dictates of the Federal Rules of Procedure and the applicable discovery order. As such,
the Court finds that GFS has had ample opportunity to obtain this evidence through
discovery. See FED. R. CIV. PRO. 26(b)(2)(C)(ii). Accordingly, Plaintiffs’ Motion to
Quash is GRANTED.
SO ORDERED, this 11th day of October, 2013.

/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

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