Powell v. UHG 1 LLC
Filing
23
MEMORANDUM OPINION AND ORDER. Signed by the Honorable Jeannice W. Appenteng on 9/25/2024. Mailed notice. (kl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ZACHARY POWELL,
individually and on behalf of all
others similarly situated,
Plaintiffs,
v.
UHG 1 LLC,
Defendant.
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Case No. 1:23-cv-06389
Judge Franklin U. Valderrama
Magistrate Judge Jeannice W. Appenteng
MEMORANDUM OPINION AND ORDER
Before the Court is non-party respondents CNU Online Holdings, LLC’s and
CNU of California, LLC’s (together the “CNU Entities”) motion to quash subpoenas.
Dkt. 1. For the reasons explained below, the motion is granted in part and denied in
part.
Background
Plaintiff filed a class-action lawsuit against UHG 1 LLC in the United States
District Court for the Southern District of California alleging harmful and
unconscionable debt collection practices in violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692, Rosenthal Fair Debt Collection Practices Act, Cal.
Civ. Code § 1788, et seq., and California’s Unfair Competition Law (“UCL”), Cal.
Bus. & Prof. Code § 17200. ECF No. 20 ¶¶ 3, 5, S.D. Cal., No. 23-cv-0086,
(“Compl.”). According to the complaint, around September 13, 2018, plaintiff took
out a $3,500 loan, and entered into a loan agreement with CNU of California d/b/a
CashNetUSA. Id. ¶¶ 22, 27. Eventually, the loan’s “rights, title and interest” were
sold, assigned, and transferred to UHG 1 by CNU Online Holdings. ECF No. 58 at
2, S.D. Cal., No. 23-cv-0086, (“Order Denying Mot. to Compel Arb.”).
After plaintiff defaulted on the debt, UHG 1 filed a lawsuit against plaintiff
to collect the debt in San Diego Superior Court. Compl. ¶¶ 24, 25. Plaintiff then
filed the underlying federal lawsuit alleging: (1) UHG 1 attempted to collect an
unconscionable debt; and (2) UHG 1 was not properly assigned the loan, so UHG 1
violated the law by bringing the state-court action. Id. ¶¶ 26–33, 41–64, 56, 70–74.
Plaintiff alleges the transfer to UHG 1 from CNU Online Holdings was deficient
because there is no record of CNU of California selling, assigning, or transferring its
rights, title, and interest in the loan to CNU Online Holdings. Id. ¶¶ 27–33.
On July 14, 2023, plaintiff served each of the CNU Entities with a subpoena
seeking 13 categories of documents and 10 deposition topics regarding the CNU
Entities’ policies and practices of originating loans and how those loans move
through the entities. Dkt. 1 at 5, 1-1, 1-2. The CNU Entities responded with their
objections to the subpoenas on July 28, 2023. Dkt. 1 at 5. Despite several
discussions, the parties could not resolve their differences over the CNU Entities’
objections. Dkt. 10 at 3–4. On August 29, 2023, the CNU Entities filed the instant
motion to quash the subpoenas.
On May 21, 2024, the Southern District of California issued an order denying
UHG 1’s motion to dismiss and compel arbitration. Although the court ultimately
denied UHG 1’s motion to compel arbitration based on waiver, it rejected plaintiff’s
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argument that UHG 1 did not have standing to enforce the loan agreement’s
arbitration provision. The court explained, “California law provides that CNU
Online Holdings, as a member of CNU of California, may execute instruments on
behalf of CNU of California, and thereby bind CNU of California . . . .” Order
Denying Mot. to Compel Arb., p. 4. This Court asked the parties to meet and confer
to discuss the implications of the order on these proceedings, and to file
supplemental briefing. Dkt. 19. In his supplemental brief, plaintiff acknowledges
that “the improper transfer claims by Plaintiff are [likely] not going to be viable,”
and so withdrew certain document requests and deposition topics. Dkt. 20 at 2.
Accordingly, the Court need only address the parties’ disputes regarding document
requests 1, 4–6, 8–12, and deposition topics 1–6, 8. 1
Legal Standard
Federal Rule of Civil Procedure 45 governs subpoenas directed to non-parties.
The scope of a Rule 45 subpoena “is as broad as what is otherwise permitted under”
the discovery rules. In re: Subpoena Upon Nejame Law, PA., No. 16-cv-4619, 2016
WL 3125055, at *2 (N.D. Ill. June 3, 2016); see also McClendon v. City of Chicago,
345 F.R.D. 322, 326 (N.D. Ill. 2024). Accordingly, through a Rule 45 subpoena,
parties may seek discovery:
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, . . . the parties’ relative
access to relevant information, . . . the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.
These document requests and deposition topics are the same for each subpoena. Unless
otherwise indicated, the Court refers to the subpoenas jointly.
1
3
Fed. R. Civ. P. 26(b)(1). That said, obtaining information from non-parties via
subpoenas is not unlimited—the issuing party must “take reasonable steps to avoid
imposing undue burden or expense on a person subject to the subpoena.” Fed. R.
Civ. P. 45(d)(1); see also HTG Cap. Partners, LLC v. Doe(s), No. 15-C-2129, 2015 WL
5611333, at *3 (N.D. Ill. Sept. 22, 2015) (“While parties to a lawsuit must accept the
invasive nature of discovery, non-parties experience an unwanted burden.”).
Upon the filing of a timely motion, Rule 45(d) provides that a court must
quash or modify a subpoena that “requires a person to comply beyond the
geographical limits specified in Rule 45(c)” or “subjects a person to undue burden.”
Fed. R. Civ. P. 45(d)(3)(A)(ii), (iv). Rule 45(c) provides that a subpoena may
command a deposition “within 100 miles of where the person resides, is employed,
or regularly transacts business in person,” and that it may command “production of
documents [or] electronically stored information . . . at a place within 100 miles of
where the person resides, is employed, or regularly transacts business in person.”
Fed. R. Civ. P. 45(c)(1)(A), (2)(A). When determining if a burden is undue, the court
must consider whether the burden of compliance exceeds the benefit of production
sought. Tresóna Multimedia, LLC v. Legg, No. 15 C 4834, 2015 WL 4911093, at *2
(N.D. Ill. Aug. 17, 2015). To analyze undue burden, courts apply a balancing test,
considering: (1) the status as a non-party, (2) the relevance of the discovery sought,
(3) the subpoenaing party’s need for the information, and (4) the breadth of the
request and the burden imposed on the subpoenaed party. LKQ Corp. v. Kia Am.,
Inc., No. 21 C 3166, 2023 WL 6623363, at *2 (N.D. Ill. Oct. 11, 2023). Non-party
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status “is a significant factor.” Parker v. Four Seasons Hotels, Ltd., 291 F.R.D. 181,
188 (N.D. Ill. 2013).
Further, the Court “may” quash or modify a subpoena if it requires the
disclosure of “a trade secret or other confidential research, development, or
commercial information.” Fed. R. Civ. P. 45(d)(3)(B)(i). The party seeking to quash a
subpoena bears the burden of “establish[ing] the impropriety of the subpoena.”
Architectural Iron Workers’ Loc. No. 63 Welfare Fund v. Legna Installers Inc., No. 22
C 5757, 2023 WL 2974083, at *1 (N.D. Ill. Apr. 17, 2023). The decision to quash a
subpoena is within the district court’s sound discretion. See Citizens for Appropriate
Rural Rds. v. Foxx, 815 F.3d 1068, 1081 (7th Cir. 2016).
Discussion
As an initial matter, the Court will address the CNU Entities’ argument
raised in their supplemental briefing that the subpoena served on CNU Online
Holdings should be quashed because CNU Online Holdings’ only connection to the
underlying case is the fact that it executed transfer documents. Dkt. 21 at 5. The
CNU Entities contend that because the transfer issue was allegedly resolved by the
Southern District of California, information from CNU Online Holdings is no longer
relevant or necessary because the only remaining issue is the unconscionability of
the loan. Id. This Court takes no position on this point as questions about CNU
Online Holdings’ connection to the underlying case are issues for the Southern
District of California. For purposes of this motion, this Court recognizes that
plaintiff served a subpoena on “CNU Online Holdings, LLC d/b/a CashNetUSA,”
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Dkt. 1-1 at 2, and that the complaint alleges CashNetUSA offered plaintiff the loan,
Compl. ¶ 22. The Court finds that the Southern District of California’s ruling on the
motion to dismiss does not excuse CNU Online Holdings from responding to its
subpoena.
Moving on to the CNU Entities’ substantive arguments why their subpoenas
should be quashed, the arguments include that plaintiff seeks compliance beyond
the geographic limits of Rule 45(c) and failed to tender fees as required by Rule
45(b)(1); the topics and requests are overbroad and unduly burdensome because
they seek irrelevant information for a seven-year period; the topics and requests
seek documents in plaintiff’s and UHG 1’s control, or better obtained through party
discovery; and, the topics and requests seek proprietary and commercially sensitive
information. 2 In his response, plaintiff argues the motion to quash is untimely and
that it should be transferred to the Southern District of California. For the reasons
that follow, the motion is granted in part and denied in part.
A.
The motion is timely and transfer to the Southern District of
California is not warranted.
Plaintiff argues the CNU Entities’ motion to quash should be denied as
untimely because it was not made on the date of compliance. 3 Specifically, plaintiff
The CNU Entities make an additional argument that it would be an undue burden to
prematurely require them to respond to the subpoenas because UHG 1 had moved to
dismiss the underlying lawsuit and compel arbitration instead. Dkt. 1 at 10. This argument
is now moot after the Southern California District Court denied UHG 1’s motion.
2
For support, plaintiff cites to three Western District of Washington decisions, none of
which are binding on this Court. See Xu v. Weis, No. 2:22-cv-00118-TL, 2023 WL 2043540,
at *2 (W.D. Wash. Feb. 16, 2023); U.S. v. King Cnty., No. 2:20-cv-00203-RJB, 2022 WL
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contends that the subpoenas’ responses were due August 3, 2023, and therefore the
CNU Entities’ August 29, 2023 motion was late. The Court does not agree.
Rule 45 allows the subpoena-recipient to file a “timely” motion to quash, Fed.
R. Civ. P. 45(d)(3)(A), but this term is undefined. While courts in this district have
held that a motion to quash “must be made at or before the time of compliance,”
Cent. States, Se. & Sw. Areas Pension Fund v. GWT 2005 Inc., No. 1:06-cv-01205,
2009 WL 3255246, at *1 (N.D. Ill. Oct. 6, 2009), others have also reasoned that the
lack of a definition for “timely” allows the district court discretion—“look[ing] to all
of the circumstances”—to determine whether a motion to quash is considered timely
even after the time for compliance has passed. PrimeSource Bldgs. Prods., Inc. v.
Felten, No. 16 CV 11468, 2018 WL 10425599, at *2 (N.D. Ill. Apr. 27, 2018) (quoting
8A WRIGHT & MILLER, Federal Practice & Procedure: Civil § 2035, at 151 (3d ed.
2010)); see also Allstate Ins. Co. v. Electrolux Home Prods., Inc., No. 16-cv-4161,
2017 WL 5478297, at *4 (N.D. Ill. Nov. 15, 2017).
Here, the original subpoenas were served July 14, 2023, with August 3, 2023
as the date for document production and August 22, 2023 as the date for the
deposition. Dkt. 1-1, 1-2. The CNU Entities timely served their objections on July
28, 2023. See Fed. R. Civ. P. 45(d)(2)(B) (subpoena recipient to serve objections
within 14 days of receiving subpoena). After several meet-and-confers, the parties
reached an impasse on August 28, 2023, and the CNU Entities filed this motion to
16835866, at *2 (W.D. Wash. Nov. 9, 2022); Smith v. Legacy Partners Inc., No. 2:21-cv00629-JHC-BAT, 2022 WL 1194125, at *2 (W.D. Wash. Apr. 21, 2022).
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quash the next day. Considering the circumstances of the parties’ conduct, the
Court finds the motion to quash timely.
The Court further denies plaintiff’s request to transfer this action to the
Southern District of California pursuant to Rule 45(f). “When the court where
compliance is required did not issue the subpoena, it may transfer a motion under
this rule to the issuing court if the person subject to the subpoena consents or if the
court finds exceptional circumstances.” Fed. R. Civ. P. 45(f). 4 As the party
requesting transfer, plaintiff bears the burden to show that exceptional
circumstances exist. Lang v. Colonial Penn Life Ins. Co., No. 21-cv-6290, 2022 WL
4465719, at *2 (N.D. Ill. Sept. 26, 2022). The committee notes to Rule 45(f) clarify
that the court’s “prime concern should be avoiding burdens on local nonparties
subject to subpoenas,” and that the court should not transfer unless the movant
proves that countervailing interests “outweigh the interests of the nonparty served
with the subpoena in obtaining local resolution of the motion.” Fed. R. Civ. P. 45(f),
Advisory Committee’s Note to 2013 amendments. However, “transfer may be
warranted in order to avoid disrupting the issuing court’s management of the
underlying litigation, as when that court has already ruled on issues presented by
the motion or the same issues are likely to arise in discovery in many districts.” Id.
Here, the CNU Entities do not consent to transfer, and plaintiff has not
carried his burden to present exceptional circumstances that warrant transfer.
Plaintiff argues transfer is appropriate because the subpoenas request information
Plaintiff does not dispute that the place of compliance is located in the Northern District
of Illinois and that this Court may consider the motion. Dkt. 5 at 11.
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about the assignment of the debt that is central to the underlying case, transfer will
avoid piecemeal litigation, and the Southern District of California “is familiar with
all claims and procedural posture of the case.” Dkt. 5 at 12–13. However, the
Southern District of California has resolved the assignment issue, and the only
issue before this Court is whether the CNU Entities should respond to the
subpoenas. Thus, the Court finds that ruling on the CNU Entities’ motion will not
interfere with the Southern District of California’s management of the case or result
in piecemeal litigation. And although the Southern District of California may be
more familiar with the case, the CNU Entities’ objections do not require a
familiarity with the underlying litigation sufficient to warrant transfer. See Lang,
2022 WL 4465719, at *3. The Court therefore finds that the CNU Entities’ interest
in obtaining local resolution of the motion outweighs the concerns raised by
plaintiff.
B.
The subpoenas are not procedurally invalid.
The CNU Entities contend the subpoenas must be quashed because they are
procedurally invalid under Rule 45(c) and (b)(1). The CNU Entities’ principal place
of business, documents, and corporate representatives are in Chicago, Illinois. Dkt.
1 at 7. Accordingly, the subpoenas violate the geographical limitations of Rule 45(c)
because they list Costa Mesa, California as the place for production of documents
and West Palm Beach, Florida as the place for deposition—both beyond 100-miles of
Chicago, Illinois. The CNU Entities argue further as another basis to quash, that
plaintiff did not tender the required witness or mileage fees according to Rule
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45(b)(1). Dkt. 1 at 9. In response, plaintiff contends that he cured these violations by
re-issuing the subpoenas on September 14, 2023 listing a Chicago address as the
place for production and deposition, and tendering the Rule 45(b)(1) fees. Dkt. 5 at
6–7; Dkt. 5-3. Despite the CNU Entities’ arguments to the contrary, the Court finds
that plaintiff’s actions “cure[ ] any previous noncompliance with Rule 45.” Varlitskiy
v. Cnty. of Riverside, No. 19 cv 2099, 2022 WL 18284986, at *3 (C.D. Cal. Dec. 14,
2022). In any event, Rule 45(d) permits the compliance court to modify a subpoena
that violates the geographical limits. Fed. R. Civ. P. 45(d)(3)(A)(ii). Accordingly, the
Court rejects the CNU Entities’ argument that the subpoenas are procedurally
invalid, and modifies the subpoenas to reflect 203 North LaSalle Street, Suite 2100,
Chicago, Illinois as the place for production and 1 North Franklin Street #3000,
Chicago, Illinois as the place for deposition testimony, as indicated in Docket 5-3.
C.
The information sought is relevant, but the requests are
overbroad.
The CNU Entities argue the subpoenas are overbroad and unduly
burdensome because they seek documents and information for a seven-year period,
and the information sought is “wholly irrelevant” to plaintiff’s allegations. Dkt. 1 at
10. Specifically, the CNU Entities argue that “none of these requests impact
whether the interest rate expressed in Plaintiff’s loan agreement was
unconscionably high on its face—that can be discerned from the loan document
itself.” Dkt. 1 at 11 (emphasis in original). While the Court agrees the requests
seeking information for a seven-year period are overbroad, it does not find the
requests “wholly irrelevant.”
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Among others, plaintiff brings a claim under the UCL on behalf of himself
and the class, alleging UHG 1 violated the UCL’s “unlawful” prong “[b]y knowingly
and intentionally buying and attempting to collect loans with unconscionable
interest rates[.]” Compl. ¶ 49. Plaintiff argues his subpoenas request information
relating to substantive and procedural unconscionability issues. Dkt. 5 at 9. Under
California law, unconscionability is “a flexible standard in which the court looks not
only at the complained-of term but also at the process by which the contractual
parties arrived at the agreement and the larger context surrounding the contract,
including its commercial setting, purpose, and effect.” De La Torre v. CashCall, Inc.,
422 P.3d 1004, 1009 (Cal. 2018). California’s unconscionability doctrine applies to
“‘the provisions of a loan contract,’ one of which is undeniably the interest rate on
the loan.” Id. at 1011–12.
Unconscionability is measured both procedurally and substantively. Id. at
1014. “[T]he procedural aspect . . . refers to an absence of meaningful choice on the
part of one of the parties which may be evidenced by (1) oppression, that is, an
inequality of bargaining power resulting in an absence of meaningful choice, or (2)
surprise, which occurs when the objectionable term is hidden in the document.”
Carboni v. Arrospide, 2 Cal. Rptr. 2d 845, 850 (Cal. Ct. App. 1991). “‘Substantive’
unconscionability, on the other hand, refers to an overly harsh allocation of risks or
costs which is not justified by the circumstances under which the contract was
made.” Id. at 848. Contrary to the CNU Entities’ argument that all that is relevant
is the interest rate on the loan agreement, Dkt. 21 at 4, California law indicates
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that unconscionability goes beyond the face of the contract into “the process by
which the contractual parties arrived at the agreement and the larger context
surrounding the contract.” De La Torre, 422 P.3d at 1009; see also id. at 1014 (“Even
where a party complains of a single contract clause, the court usually must examine
the bargaining process for any procedural unfairness.”).
Here, plaintiff alleges the CNU Entities “set the terms of the loan.” Dkt. 5 at
14. Because the scope of subpoenas is as broad as Rule 26 permits, the Court finds
that document requests 1, 4–6, 8–10, and 12 and deposition topics 1–6 and 8 seek
information relevant to the unconscionability elements and that plaintiff has
established a need for this information. Accordingly, the Court denies the CNU
Entities’ motion to quash these requests.
However, given the CNU Entities’ non-party status, the Court will grant the
motion regarding request 11 as unduly burdensome and irrelevant. The request
seeks “[a]ll documents showcasing the interest rates the average consumer obtains
on a standard loan.” Requiring the CNU Entities produce all documents on interest
rates for “the average consumer” is ambiguous and not proportional to the needs of
the case. Although plaintiff alleges to represent a class, this document request is
not tailored to the proposed class definition or his individual claims.
Finally, the Court finds plaintiff’s requested time period of September 2016
through the present overbroad and unduly burdensome. In his complaint, plaintiff
asserts a class consisting of “[a]ll persons in the State of California from whom
[UHG 1] has attempted to collect a loan with an annual percentage rate (APR)
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exceeding 90 percent in the four years preceding the filing of the Complaint.”
Compl. at 7. Given the complaint was filed in 2023, the Court grants the CNU
Entities’ motion in part and modifies the subpoenas such that the time period is
from September 2019 to present.
D.
The information sought is not within plaintiff’s or UHG 1’s
control.
The CNU Entities further argue the subpoenas should be quashed because
they seek information plaintiff possesses and information that should be sought
from UHG 1 in discovery. Dkt. 1 at 13–14. Plaintiff contends that he is requesting
information about his and the putative class’s debts “while they were owned by [the]
CNU Entities” and which UHG 1 “does not have access to.” Dkt. 5 at 11. The Court
finds that the subpoenas seek the CNU Entities’ internal documents and
communications about plaintiff’s loan, and their policies and procedures
surrounding contract negotiations, notifying consumers of interest rates, and
processing loan applications. Nothing in the CNU Entities arguments establish any
basis for this Court to conclude that plaintiff or UHG 1 would possess this
information. Therefore, the Court denies the CNU Entities’ motion as it relates to
document requests 1, 4, 6, 8–10, 12. However, the Court grants the motion as to
document request 5 because this request seeks “[a]ll communications between [the
CNU Entities] and Plaintiff.” These communications are within plaintiff’s custody
and control, and so this information “is obtainable from some other source that is
more convenient [and] less burdensome.” Legg, 2015 WL 4911093, at *3.
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E.
The CNU Entities do not establish the information sought is
proprietary or commercially sensitive, and the protective
order sufficiently protects the CNU Entities’ interests.
Last, the CNU Entities argue the subpoenas should be quashed because they
seek proprietary and commercially sensitive information. A court may quash a
subpoena if it seeks the disclosure of a trade secret or other confidential research,
development, or commercial information. Fed. R. Civ. P. 45(d)(3)(B)(i). “There is,
however, ‘no absolute privilege for trade secrets or similar confidential
information.’” Soto v. Kale Realty, LLC, 13 C 8002, 2016 WL 11953040, at *3 (N.D.
Ill. July 25, 2016) (quoting Exxon Chem. Patents, Inc. v. Lubrizol Corp., 131 F.R.D.
668, 671 (S.D. Tex. 1990)). “[A] party seeking protection of their confidential
information bears the burden of establishing two things: (1) the confidentiality of
the material, and (2) the harm associated with its disclosure.” Id. (internal citations
omitted). The burden would then shift to the party seeking the information to show
the information “is relevant and necessary to the case.” Id. If this is established, the
court then weighs the need for the information against any harm which could result
from disclosure. Id.
The only argument the CNU Entities proffer is that they “derive substantial
economic and strategic value from these policies and procedures and take
substantial efforts to safeguard this information in order to maintain this
competitive advantage.” Dkt. 1 at 12. However, the CNU Entities’ contention alone
does not establish that its policies and procedures are trade secrets or confidential
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research, development, or commercial information as Rule 45 requires, nor does it
demonstrate the harm associated with disclosure.
Even if the CNU Entities met their burden, the Court would nonetheless
deny the motion on this basis because the relevancy and necessity of the
information outweighs the purported harm. As explained above, the subpoenas,
specifically requests 1, 4, 6, 8–10, and 12 and deposition topics 1–6 and 8, seek
information relevant to the alleged unconscionability of the loan and plaintiff has
shown his need for this information. Further, courts have found that confidentiality
orders “sufficiently protect[ ] the sensitivity of documents that may implicate . . .
confidentiality or privacy concerns.” Legna Installers, 2023 WL 2974083, at *5. In
the underlying lawsuit, the Southern District of California entered a protective
order which allows “any third party [to] have the right to designate as ‘Confidential’
and subject to this Order any information, document, or thing, or portion of any
document or thing that contains trade secrets, competitively sensitive technical,
marketing, financial, sales or other confidential business information.” ECF No. 34
at 2, S.D. Cal., No. 23-cv-0086. The protective order also contains an “Attorneys’
Eyes Only” designation. Id. at 2–3. The Court is satisfied the protective order
contemplates the type of documents that may be responsive to the subpoenas. For
all these reasons, the Court denies the CNU Entities’ motion to quash on the basis
that the information sought is proprietary and commercially sensitive. See FireBlok
IP Holdings, LLC v. Hilti, Inc., No. 19 CV 50122, 2021 WL 5283946, at *4 (N.D. Ill.
Aug. 10, 2021) (denying a motion to quash where there was a protective order in
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place which covered “trade secrets, confidential business information, or other
proprietary information”).
CONCLUSION
For the reasons stated above, the CNU Entities’ motion to quash is granted
in part and denied in part. Within 30 days of this order, the CNU Entities shall
respond to document requests 1, 4, 6, 8–10, and 12, and designate a representative
or representatives to be deposed on topics 1–6 and 8. The place for production and
depositions shall be at the locations listed in the subpoenas served on September 14,
2023, or some other agreeable location within 100-miles of the CNU Entities’
principle place of business, 175 West Jackson Boulevard, Chicago, Illinois.
So Ordered.
______________________________
Jeannice W. Appenteng
United States Magistrate Judge
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