Creative Machining and Molding Corporation v. CRC Polymer Systems, Inc.

Filing 36

Magistrate Judge Katherine A. Robertson: ORDER entered. For the foregoing reasons, Plaintiff's Motion to Compel Alltrista Plastics, LLC d/b/a Jarden Plastics Solutions ("Jarden") and the Yankee Candle Company, Inc. ("Yankee Candle ") to Designate Witnesses and Produce Documents as Required by Deposition Subpoenas Served on Both Companies is GRANTED IN PART and DENIED IN PART on the terms set forth in this Order. CMM's motion is GRANTED insofar as counsel for CMM is directed to confer with Yankee Candle's counsel to identify no more than four Yankee Candle employees whose active and archived email accounts will be searched using no more than ten relevant search terms. This further search for responsive do cuments shall be completed no later than April 6, 2018. If any additional relevant documents are identified and produced to CMM by Yankee Candle, copies shall be produced to CRC as well. CMM's motion is otherwise DENIED. Although the issue is close, the Court concludes that no award of counsel fees or costs to non-parties Jarden and Yankee Candle is justified. See Fed. R. Civ. P. 37(s)(5). (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CREATIVE MACHINING AND
MOLDING CORPORATION
Plaintiff,
v.
CRC POLYMER SYSTEMS, INC.
Defendant.

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Civil Action No. 17-30043-MAP

ORDER ON PLAINTIFF’S MOTION TO COMPEL ALLTRISTA PLASTICS, LLC d/b/a/
JARDEN PLASTICS SOLUTIONS (“JARDEN”) AND THE YANKEE CANDLE COMPANY,
INC. (“YANKEE CANDLE”) TO DESIGNATE WITNESSES AND PRODUCE
DOCUMENTS AS REQUIRED BY DEPOSITION SUBPOENAS SERVED ON BOTH
COMPANIES
(Dkt. No. 33)
I.

Background

An extensive history of the dispute at issue in this case is not necessary to understanding
the issues raised by plaintiff Creative Machining and Molding Corporation’s (“CMM”) motion to
compel Jarden and Yankee Candle to comply with subpoenas issued pursuant to Fed. R. Civ. P.
45 (“Rule 45”) to produce documents and provide testimony from “[t]he person with the most
knowledge” (Dkt. Nos. 33-2; 33-3). In summary, CMM alleges in its complaint that, beginning
in or around 2005, CMM had a contract to provide tea light holders to Yankee Candle for tea
light candles sold by Yankee Candle. According to CMM, CMM and defendant CRC Polymer
Systems, Inc. (“CRC”) entered into a joint venture to produce satisfactory tea light holders.
Thereafter, CRC sold CMM the material to manufacture the tea light holders, while CMM
manufactured the tea light holders and sold them to Yankee Candle. Sometime between 2005
and 2014, Yankee Candle was acquired by Jarden, an entity which also owned several plastic
molding and manufacturing facilities. CMM continued to sell tea light holders to Yankee Candle
until August 2014, when CRC began selling the material required to manufacture the tea light
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holders directly to Yankee Candle, in derogation of an agreement between CRC and CMM that
CRC would sell its product exclusively to CMM for use in the candle industry (Dkt. No. 1 at 13). Thereafter, Yankee Candle ceased doing business with CMM. According to counsel for
CMM, during discovery, CMM has learned that CRC began selling its product to Jarden
sometime in or before mid-July 2014 (Dkt. No. 33-1). According to the plaintiff, CRC has
produced only “isolated” records related to its work with Jarden in 2013-2014 to develop a
process for the in-house production of tea light holders.
On December 6, 2017, CMM issued a Rule 45 subpoena to Alltrista Plastics LLC d/b/a/
Jarden Plastics Solutions directing Jarden to produce the “Person with the Most Knowledge” at
Jarden on 8 topics listed on Schedule A attached to the subpoena and to produce documents
concerning the same 8 topics, which were listed on attached Schedule B. The witness was
directed to appear at 265 State Street in Springfield, Massachusetts on December 15, 2017 at
10:00 a.m., bringing the requested documents to the deposition (Dkt. No. 33-2 at 1-4). Through
counsel, Jarden objected to the subpoena, on the grounds, among others, that the subpoena called
for the appearance of a deponent and the production of documents in violation of the
geographical limitations imposed by Rule 45 (Dkt. No. 35-1).
On January 11, 2018, CMM issued a Rule 45 subpoena to Yankee Candle directing
Yankee Candle to produce the “Person with the Most Knowledge” at Yankee Candle on 8 topics
listed on Schedule A attached to the subpoena and to produce documents concerning the same 8
topics, which were listed in attached Schedule B (Dkt. No. 35-1). The witness was directed to
appear at 265 State Street in Springfield, Massachusetts on January 19, 2018 at 10:00 a.m.,
bringing the requested documents to the deposition (Dkt. No. 35-1 at 21-24). Yankee Candle
objected to the subpoena on various grounds, including that the subpoena sought corporate

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records of Jarden in addition to records of Yankee Candle, and notified CMM that Mr. Mike
Pazos, an employee of Yankee Candle, would testify as the “PMK” (presumably, “person with
knowledge”) for Yankee Candle on January 22, 2018 at 10:00 a.m. (id. at 26-27). On January
19, 2018, Yankee Candle emailed documents to CMM’s counsel in response to the Rule 45
subpoena (id. at 29). It appears that CMM also noticed the deposition of Mike Pazos
individually (Dkt. No. 33-1 at 3-4). On January 22, 2018, CMM elected to take the deposition of
Mr. Pazos as an individual rather than as a corporate representative (Dkt. No. 33-17 at 2-3).
Yankee Candle takes the position that it has produced all documents in its possession, custody,
or control that were responsive to CMM’s Rule 45 subpoena (Dkt. No. 33-12 at 3; Dkt. No. 35-1
at 31).
II.

Discussion

1. Subpoena to Jarden.
Rule 45(c), which governs the place of compliance for a Rule 45 subpoena, provides, in
pertinent part, that a subpoena may command a person to appear and testify only at a location
within 100 miles of the place where the person resides, is employed, or regularly transacts
business. Fed. R. Civ. P. 45(c)(1)(A). Jarden is an Indiana corporation with a principal place of
business in South Carolina. Jarden has no employees or offices in Massachusetts, Connecticut,
Rhode Island, New York, Vermont, or New Hampshire (Dkt. No. 35-1 at 2). Insofar as CMM’s
motion seeks to compel compliance by Jarden with the December 6, 2017 subpoena, CMM’s
subpoena improperly commanded compliance in Springfield, Massachusetts, a location well
beyond the 100-mile limit set forth in the rule. See, e.g., Isola USA Corp. v. Taiwan Union Tech.
Corp., No. 15-MC-94003-TSH, 2015 WL 5934760, at *2 (D. Mass. June 18, 2015) (in the
absence of consent or exceptional circumstances, Rule 45 provides that compliance with a

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subpoena and subpoena-related motion practice must occur in the district where a corporation is
located); Marine Polymer Techs. v. Hemcon, Inc., Civil No. 06-cv-100-JD, 2010 WL 1417646,
at *1 (D.N.H. Apr. 5, 2010) (Rule 45(c)(3)(A)(ii) requires the court to quash a subpoena that
would require a person to travel more than 100 miles from where the person resides, is
employed, or regularly conducts business). The defect in CMM’s Rule 45 subpoena to Jarden is
not a mere technical violation. CMM’s subpoena on Jarden is “unenforceable” because “both
the documents and the non-party subpoena recipient are located outside of the reach of Rule
45(b)(2).” Traveler v. CSX Corp., No. 1:06 CV 56, 2006 WL 2375480, at *2 (N.D. Ind. Aug. 16,
2006). Moreover, if CMM had served a proper Rule 45 subpoena on Jarden specifying an
appropriate location for the deposition, i.e., in either Indiana or South Carolina – which it did not
– a motion to compel compliance with any such subpoena would have had to be filed in a
proceeding commenced in the district in which compliance was required. See Fed. R. Civ. P.
45(d)(3) (motion practice related to a Rule 45 subpoena takes place in the district where
compliance is required). Accordingly, so much of CMM’s motion as is directed at compelling
compliance with the Rule 45 subpoena CMM caused to be served on Jarden is DENIED.
2.

Subpoena to Yankee Candle

The court also DENIES so much of CMM’s motion as seeks to compel additional
deposition testimony from Yankee Candle. CMM’s subpoena to Yankee Candle commanded
testimony from the “Person with the Most Knowledge” on the list of topics in Schedule B.
Yankee Candle unambiguously designated Mr. Pazos for this role (Dkt. No. 35-1 at 27). Mr.
Pazos, who is the Director of Purchasing at Yankee Candle and was employed at Yankee Candle
at all times relevant to CMM’s claims, has attested that he was the person at Yankee Candle with
the most knowledge “as to the vast majority of the subjects listed in the Subpoena” (Dkt. No. 35-

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1 at 2; 35-2 at 2). CMM’s subpoena directed Yankee Candle’s representative to bring with him
to the deposition the documents listed in Schedule A (Dkt. No. 35-1 at 7). Yankee Candle
produced documents electronically on January 19, 2018 (a Friday), before the January 22, 2018
deposition of Yankee Candle, which (to the extent the document production was complete, a
point addressed below) constituted compliance with the subpoena (Dkt. No. 35-1 at 29). Cf.
Miller v. Holzman, 471 F. Supp. 2d 119, 122 (D.D.C. 2007) (a deponent’s obligation is to
comply with the literal terms of a subpoena). Notwithstanding Yankee Candle’s compliance
with the literal terms of CCM’s subpoena, CMM chose not to depose Mr. Pazos as a corporate
representative, apparently based on the timing of Yankee Candle’s document production (Dkt.
No. 33-17 at 2-3) and did not explore the full extent of Mr. Pazos’s knowledge as a corporate
designee concerning the topics listed in Schedule B. To the limited extent that CMM takes the
position that Mr. Pazos lacked relevant knowledge (Dkt. No. 39 at 6, ¶ 39), it bears noting that at
least four of the topics on Schedule B to the Rule 45 subpoena to Yankee Candle would be more
appropriately addressed to Jarden than to Yankee Candle.
Pursuant to Rule 45(c)(1), a party responsible for issuing and serving a subpoena on a
non-party “must take reasonable steps to avoid imposing undue burden or expense on a person
subject to the subpoena.” Fed. R. Civ. P. 45(c)(1). In the circumstances present here, granting
CMM’s motion to compel further deposition testimony from Yankee Candle would violate this
directive. CMM’s unilateral decision to forego seeking testimony from Mr. Pazos as a corporate
designee in the absence of good cause for this decision should operate as a waiver of CMM’s
right to seek such evidence. See Estate of Rosado-Rosario v. Falken Tire Corp., 319 F.R.D. 71,
75 (D.P.R. 2016) (quashing deposition subpoena where the issuing party had had ample time to
obtain the discovery sought by the Rule 45 subpoena). Moreover, having passed on the

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opportunity to inquire into Mr. Pazos’s knowledge in his capacity as a corporate designee, CMM
cannot meet its burden of showing that Mr. Pazos was inadequately prepared to testify on
Yankee Candle’s behalf. See Cooper v. Charter Commc’ns, Inc., Case No. 3:12-cv-10530MGM, 2016 WL 1430012, at *3 (D. Mass. Apr. 11, 2016). For the foregoing reasons, so much
of CMM’s motion as seeks to compel Rule 30(b)(6) deposition testimony from Yankee Candle is
DENIED.
CMM’s command to Yankee Candle for document production stands on a somewhat
different footing. Notwithstanding CMM’s requests to CRC and its principals for relevant
documents, it appears that CMM has been left with a gap in the documentary record. Yankee
Candle and Jarden played important roles in the events that have given rise to CMM’s claims.
“[T]he Federal Rules of Civil Procedure allow for discovery from non-parties,” In re New
England Compounding Pharmacy, Inc. Prods. Liab. Litig., MDL No. 13-2419-FDS, 2013 WL
6058483, at *7 (D. Mass.. Nov. 13, 2013), as long as the requests are not unduly burdensome.
Yankee Candle has submitted an affidavit from Kim Dacyczyn, its Director of Information
Technology, in which it is represented that searching the email accounts of all Yankee
employees for the last five years would require 40 man hours. Yankee Candle contends, on this
basis, that responding to CMM’s document production request would be unduly burdensome
(Dkt. No. 35-3). It would not be necessary to search the email accounts of anywhere near all of
Yankee Candle’s employees to reasonably ascertain whether Yankee Candle has additional
documents, stored electronically, that would be responsive to CMM’s Rule 45 subpoena for
documents.
Notwithstanding that CMM’s counsel failed to make reasonable efforts to limit the
burden of CMM’s discovery directed to non-party Yankee Candle, the court concludes that some

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additional effort by Yankee Candle is in order. Yankee Candle has not shown that an
appropriately limited and targeted search of archived emails, limited to the email accounts of no
more than four employee-custodians and using no more than ten search terms, would be unduly
burdensome. See In re New England Compounding Pharmacy, 2013 WL 6058483, at *6 (the
party resisting discovery must demonstrate undue burden). Accordingly, the court directs that
counsel for CMM confer with Yankee Candle’s counsel to identify no more than four Yankee
Candle employees whose email accounts will be searched using no more than ten relevant search
terms, which may include, for example, proper names and the name of the product made by
CRC. This entire process, including the identification of appropriate document custodians, a
limited list of relevant search terms, and the search itself, shall be completed by no later than
April 6, 2018. If this limited search of electronically stored information does not result in the
identification of any additional relevant documents, Yankee Candle shall so indicate. See id. at
*7 (to the extent a respondent does not have any responsive documents in its possession, custody
or control, it may so state). If any additional relevant documents are identified and produced to
CMM by Yankee Candle, copies shall be produced to CRC as well.
III.

Conclusion

For the foregoing reasons, Plaintiff’s Motion to Compel Alltrista Plastics, LLC d/b/a/
Jarden Plastics Solutions (“Jarden”) and the Yankee Candle Company, Inc. (“Yankee Candle”)
to Designate Witnesses and Produce Documents as Required by Deposition Subpoenas Served
on Both Companies is granted in part and denied in part on the terms set forth in this Order.
CMM’s motion is GRANTED insofar as counsel for CMM is directed to confer with
Yankee Candle’s counsel to identify no more than four Yankee Candle employees whose active
and archived email accounts will be searched using no more than ten relevant search terms. This

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further search for responsive documents shall be completed by no later than April 6, 2018. If
any additional relevant documents are identified and produced to CMM by Yankee Candle,
copies shall be produced to CRC as well. CMM’s motion is otherwise DENIED.
Although the issue is close, the court concludes that no award of counsel fees or costs to
non-parties Jarden and Yankee Candle is justified. See Fed. R. Civ. P. 37(a)(5).
It is so ordered.
Dated: March 22, 2018

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
U.S. MAGISTRATE JUDGE

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