XTEC, INCORPORATED, A FLORIDA CORPORATION v. CARDSMART TECHNOLOGIES, INCORPORATED, A NEW JERSEY CORPORATION et al

Filing 20

ORDER granting in part and denying in part 1 Motion for Protective Order and granting in part and denying in part 19 Cross-Motion to Compel (see order for specifics). The hearing set for October 9, 2012, at 5:00 p.m. (CDT), is hereby VACATED, as unnecessary. Signed by Magistrate Judge William G. Hussmann, Jr., on 10/9/2012. (NRN) Modified on 10/9/2012 (NRN).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

XTEC, Incorporated, a Florida corporation,

)
)
Plaintiff,
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v.
)
)
CARDSMART TECHNOLOGIES, Incorporated,
)
a New Jersey corporation, and DAVID FISHER, )
an Individual,
)
)
Defendant.
)

3:12-mc-11-RLY-WGH

ORDER ON LARRY HEMBREE’S
MOTION FOR PROTECTIVE ORDER
This matter is before the Honorable William G. Hussmann, Jr., United
State Magistrate Judge, on a Motion for Protective Order filed by non-party
Larry Hembree on September 13, 2012. (Docket No. 1). Plaintiff’s Response
opposing the motion was filed on September 27, 2012; a Cross-Motion to
Compel was filed by Plaintiff in that same document. (Docket No. 8). NonParty Larry Hembree’s Reply in Support of Motion for Protective Order and
Response in Opposition to Motion to Compel was filed on October 3, 2012.
(Docket No. 15). Defendants’ Reply in Response to Plaintiff’s Opposition to
Larry Hembree’s Motion for a Protective Order and Cross-Motion to Compel was
filed on October 4, 2012. (Docket No. 17). The Declaration of G. Glennon
Troublefield was filed on October 4, 2012. (Docket No. 18). Plaintiff’s Reply to

Larry Hembree’s Response in Opposition to Motion to Compel and Response to
Defendants’ Reply was filed on October 5, 2012. (Docket No. 19).
The Magistrate Judge, being duly advised, now GRANTS, in part, and
DENIES, in part, the Motion for Protective Order and GRANTS, in part, and
DENIES, in part, the Cross-Motion to Compel, as follows:
1. The Magistrate Judge concludes that non-party Larry Hembree has
not waived his objections to the Subpoena that was originally served upon him.
2. Mr. Hembree’s claim of undue burden has not been described with
the particularity necessary to sustain in all respects his claim that it is unduly
burdensome to produce all the documents sought.
3. The Magistrate Judge has reviewed the categories listed in the
Subpoena and concludes that those categories of documents all relate to
relevant facts in the underlying lawsuit.
4. As a non-party, Mr. Hembree should reasonably be expected to search
computer data systems and spend three business days of eight hours each in
an attempt to locate and retrieve the documents sought. The primary focus of
this search should be for documents in existence between the year 2009 and
the current date, though other dates may be relevant.
5. In the event the retrieval of the items by Mr. Hembree should take
more than three business days of eight hours each, payment of reasonable
expenses for retrieval of those items shall be made by the Plaintiff, XTEC,
Incorporated, for the time spent which exceeds three business days. Counsel

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is also directed to discuss any out-of-pocket costs necessary to retrieve the
items. The Magistrate Judge will determine at a later date the appropriate
amount of expenses (out-of-pocket costs and labor cost) that were incurred by
Mr. Hembree, which must be paid or repaid by XTEC in the underlying case.
6. Mr. Hembree does not have standing to raise a state secrets objection
to items produced from the Navy or other governmental contractors. If,
however, he produces written documentation that may arguably be a claim of
privilege from the Navy or governmental contractors, than those items which he
withholds from production must be listed on a privilege log, and the Magistrate
Judge will review those items by in camera review.
7. Mr. Hembree shall complete his search within fifteen (15) days of the
date of this Order, unless by agreement of counsel otherwise. The materials
shall be produced to XTEC by not later than twenty (20) days from the date of
this Order.
8. Mr. Hembree shall appear for his deposition not later than thirty (30)
days from the date of this Order.
The hearing set for October 9, 2012, at 5:00 p.m. (CDT), is hereby
VACATED, as unnecessary.
SO ORDERED.
Dated: October 9, 2012

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

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Electronic copies to:
Daniel K. Burke
HOOVER HULL LLP
[e-mail]
Eduardo I. Rasco
ROSENTHAL ROSENTHAL RASCO KAPLAN, LLC
[e-mail]
Steve M. Bimston
ROSENTHAL ROSENTHAL RASCO KAPLAN, LLC
[e-mail]
G GLENNON TROUBLEFIELD
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO
[e-mail]
Darren Andrew Craig
FROST BROWN TODD LLC
[e-mail]
Thomas L. Davis
FROST BROWN TODD LLC
[e-mail]

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