Knight Capital Partners Corporation v. Henkel AG & Company, KGaA

Filing 77

ORDER DENYING Plaintiff's 71 Motion to Quash--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KNIGHT CAPITAL PARTNERS
CORPORATION,
Plaintiff,
Case No. 2:16-cv-12022
District Judge David M. Lawson
Magistrate Judge Anthony P. Patti

v.

HENKEL AG & COMPANY, KGaA,
Defendant.
___________________________________/
ORDER DENYING MOTION TO QUASH THIRD PARTY SUBPOENAS
(DE 71) BUT GRANTING ALTERNATIVE RELIEF
On or about September 11, 2017, Defendant served several subpoenas upon
non-parties. (DE 71-2.) Currently before the Court is Plaintiff’s September 26,
2017 motion to quash Defendant’s third party subpoenas, regarding which
Defendant filed a response and Plaintiff filed a reply. (DEs 71, 74, 75.)
Judge Lawson referred this motion to me for hearing and determination, and
a hearing was noticed for November 14, 2017. On the date set for hearing,
attorneys Jamie K. Warrow and Mark Kelley Schwartz appeared in my courtroom,
and the Court conducted a hearing.

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Upon consideration of the motion papers and oral argument of counsel for
the parties, and for all of the reasons stated on the record, which are herein
incorporated by reference, Plaintiff’s motion to quash (DE 71) is DENIED. In
sum, while Plaintiff has standing to bring this motion under Fed. R. Civ. P. 26(c),
the information Defendant seeks through the subject subpoenas is discoverable
under Fed. R. Civ. P. 26(b).
Nonetheless, the Court will GRANT Plaintiff’s alternative request for relief
to the extent it asks that the resulting production of documents be subject to a
protective order. (See DE 71 at 2, 16.) Slightly modifying the directive given from
the bench, Defendant SHALL produce to Plaintiff copies of all documents and
information received in response to the subpoenas within five days of their
receipt. All such documents and information SHALL initially be designated and
treated as “CONFIDENTIAL” and shall only be used for purposes of this
litigation, until such time as the parties are able to mutually agree upon the need
for each document or piece of information to be protected or redacted and the level
of protection to be afforded, if any, or until the Court can resolve any disputes in
this regard. Moreover, within two weeks of the production of all material that
has been cumulatively subpoenaed (i.e., within two weeks of the last subpoena
response/production), counsel shall meet and confer in person to review the items
or documents that have been produced in response to the subpoenas and attempt, in
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good faith, to stipulate to the need for and, if applicable, the level of protection to
be given to the material in question, either under a then existing protective order or
pursuant to a subsequent stipulation or protective order. The parties are prohibited
from seeking any Court intervention in this regard until this meeting has occurred
and good faith efforts at resolution have been fully exhausted.
Finally, this ruling is without prejudice to Plaintiff’s ability to bring future
motions in limine or assert objections at trial regarding the admissibility of any
information received by way of the subpoenas at issue.
IT IS SO ORDERED.

Dated: November 15, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on November 15, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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