Summit DNA, L.L.C. v. Proove Biosciences, Inc. et al

Filing 55

ORDER denying 49 Motion to Quash. Signed by Magistrate Judge Stephanie A Gallagher on 10/30/2015. (ca2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

October 30, 2015

LETTER TO COUNSEL
RE:

Summit DNA, LLC v. Proove Biosciences, Inc.
Civil Case No. WDQ-14-1329

Dear Counsel:
Pending before the Court is Defendant, Counterclaim-Plaintiff, and Third-Party Plaintiff
Proove Biosciences, Inc.’s (“Proove”), and Defendant Brian Meshkin’s (“Meshkin”) Emergency
Motion to Quash Subpoena, or, in the Alternative, for Protective Order or Stay of Deposition of
Proove’s former employee Bruce Gardner. See [ECF No. 47]. Following Judge Quarles’s
referral of this case to me for resolution of this motion, see Fed. R. Civ. P. 72(a), I reviewed
Proove’s and Meshkin’s motion, and Plaintiff and Counterclaim-Defendant Summit DNA,
LLC’s (“Summit”) and Third-Party Defendant George Powell’s (“Powell”) Opposition thereto.
See [ECF No. 51]. I convened a conference call with counsel for all parties on October 30, 2015,
during which counsel clarified their arguments with respect to the instant motion. This letter
memorializes the findings of that phone call. For the reasons discussed herein, Proove’s and
Meshkin’s (hereinafter, “Proove”) motion will be DENIED.
I.

Background

Proove’s motion arises from a notice of deposition received by their counsel on October
14, 2015. The notice informed counsel for Proove that Summit and Powell (hereinafter
“Summit”) intended to depose Bruce Gardner, Proove’s former Vice President of Sales and
Marketing, on November 2, 2015. See Defs.’ Mot. to Quash 5; id. at Ex. A, B; Pl.’s Opp. to
Defs.’ Mot. to Quash Ex. 1. Mr. Gardner’s employment with Proove terminated approximately
one month ago, and Mr. Gardner is not a party to this case. Defs.’ Mot. to Quash 5. Despite
having had notice of Mr. Gardner’s deposition, and of the contents of the subpoena ordering it,
for over two weeks, Proove waited until the evening of October 29, less than two business days
before the deposition is to take place, to file an emergency motion to quash the subpoena or for a
protective order and stay of the deposition. Proove argues that the subpoena ordering Mr.
Gardner to appear at the deposition in California should be quashed on the basis that, having
only been signed by Mr. Philip Touton, pro hac vice counsel for Summit and Powell, the
subpoena was defective under this Court’s Local Rule 101.1. Alternatively, Proove argues that
this Court should issue a separate protective order specifically related to Mr. Gardner’s
subpoena, and should stay his deposition.

Summit DNA, LLC v. Proove Biosciences, Inc.
Civil Case No. WDQ-14-1329
October 30, 2015
Page 2
II.

Discussion

Proove first argues that Mr. Gardner’s subpoena should be quashed because Mr. Touton,
who appears pro hac vice in this case, was the only signatory to the subpoena. This is improper,
Proove asserts, because Local Rule 101.1(b)(i) mandates that parties represented by counsel
appearing pro hac vice must also be “represented by an attorney who has been formally admitted
to the Bar of this Court who shall sign all documents and . . . be present at any court
proceedings.” Loc. R. 101.1(b)(i) (D. Md. 2014) (emphasis added). Proove contends that Mr.
Gardner’s subpoena is a “document” for the purposes of Local Rule 101, and that, therefore, the
subpoena being signed solely by Mr. Touton, and not, additionally, by local counsel, renders the
subpoena defective as a matter of “black letter law.” Defs.’ Mot. to Quash 3. In opposition,
Summit argues that Proove has no standing to contest Mr. Touton’s signature on the subpoena,
since a party may only challenge a subpoena issued to a third party if the original party can show
a “personal right or privilege in the information sought by the subpoena,” which Summit asserts
that Proove cannot. U.S. v. Idema, 118 Fed. App’x 740, 744 (4th Cir. 2005). In the alternative,
Summit argues that it believes in good faith that “it is not clear that the reference to the term
“documents” in [Local Rule 101.1(b)(i)] was intended to apply to third-party subpoenas,” but,
rather, that the term only covers those documents that are filed with the Court. Pl.’s. Opp. 4.
Neither this Court nor the Fourth Circuit have determined whether the “documents” noted
in Local Rule 101.1(b)(i) refer only to documents filed with the Court, or whether that Rule
encompasses all documents in a given case. I decline to parse the definition in this case because
of the urgent need for resolution of the pending motion. I further decline to quash Mr. Gardner’s
subpoena on technical grounds. While a motion to quash is not a dispositive motion, the Fourth
Circuit has made clear its policy to favor the resolution of cases “on their merits instead of
disposing of them on technicalities.” Sciolino v. Citv of Newport News, Va., 480 F.3d 642, 651
(4th Cir. 2007). As such, Proove’s technical basis for quashing Mr. Gardner’s subpoena is not
salient.
Proove next argues that, even if the Court refuses to grant its motion to quash, Mr.
Gardner’s deposition should be made the subject of a separate protective order, and briefly
stayed. Defs.’ Mot. to Quash 6. According to Proove, the stipulated protective order already in
place does not cover Mr. Gardner’s deposition because Mr. Gardner is “neither a party to that
protective order nor any other protective order.” Id. at 5. This argument, too, is unpersuasive.
Per the parties’ Stipulated Confidentiality/Protective Order, [ECF No. 46], a party to the case
may unilaterally designate the contents of a deposition as “Confidential” and thereby subject to
the protections of the Confidentiality Order. Counsel for Proove is entitled to attend Mr.
Gardner’s deposition, to cross-examine him, and to denote any information that he shares and
that Proove believes is confidential as such. Moreover, whether Mr. Gardner is a party to the
case or to the parties’ existing protective order is irrelevant. Protective orders protect
information, not particular persons. See Minter v. Wells Fargo Bank, N.A., 675 F. Supp. 2d 591
(D. Md. 2009) (“[T]he protective order already in this place is adequate to protect any
confidential information produced [by a third party’s documents].”). Because the information
disclosed in this action, including that revealed by third parties in depositions or in document

Summit DNA, LLC v. Proove Biosciences, Inc.
Civil Case No. WDQ-14-1329
October 30, 2015
Page 3
production, is currently subject to a protective order, there is no need to order additional
protection for Mr. Gardner’s deposition.
I am similarly unconvinced by Proove’s argument that Mr. Gardner’s deposition should
be stayed. This Court has held that several factors, such as whether pending rulings will be
delayed by staying discovery, whether the non-moving party will be prejudiced by the stay, the
scope and length of the requested stay, and the likely harm or injury caused by the deposition,
are relevant in considering motions to stay. See In re Mut. Funds Inv. Litig., No. 04-MD-15862,
2011 WL 38919608, at *1 (D. Md. Aug. 25, 2011). Here, the factors ultimately weigh in favor
of a denial of the pending motion. The discovery deadline in the instant case is November 25,
2015; twenty-seven days from today’s date. This fact belies Proove’s contention that
“[d]iscovery is still in its early stages.” Moreover, as discussed above, the protective order in
place is sufficient to allow Proove to ensure that any confidential information Mr. Gardner may
discuss at his deposition will remain confidential.
Finally, both parties devote considerable space to arguments regarding the propriety of
Mr. Touton’s representation of Summit, and whether, specifically, his simultaneous
representation of Dr. Daniel Schwarz and Summit disqualifies him from this case. See Defs.’
Mot. to Quash 6-9; Pl.’s Opp. 11-13. I decline to address this issue, as it should be properly
asserted in a separate motion to disqualify. Disqualification, particularly at the behest of
opposing counsel, “requires that courts avoid overly-mechanical adherence to disciplinary
canons at the expense of litigants’ rights freely to choose their counsel; and that they always
remain mindful of the opposing possibility of misuse of disqualification motions for strategic
reasons.” Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir. 1992). The pending motion
concerns only the quashing or staying of Mr. Gardner’s deposition. Mr. Touton’s potential
disqualification is a distinct matter that is left to Judge Quarles’s resolution if it should arise in a
separate motion.
III.

Conclusion

For the aforementioned reasons, Proove’s Motion to Quash Subpoena, or in the
Alternative, for Protective Order or Stay of Deposition of Former Proove Employee Bruce
Gardner, is DENIED.
Despite the informal nature of this letter, it is an Order of the Court and will be flagged as
an Opinion.

Summit DNA, LLC v. Proove Biosciences, Inc.
Civil Case No. WDQ-14-1329
October 30, 2015
Page 4
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge
cc: Judge William D. Quarles