On Demand Direct Response, LLC et al v. McCart-Pollak

Filing 411

(See ECF No. #412 for corrected image) ORDERED that Defendant McCart-Pollak's Motion to Compel Compliance with Subpoena to Produce Documents (ECF No. #405 ) is granted. IT IS FURTHER ORDERED that McCart-Pollak shall file her application for costs no later than February 8, 2019. Signed by Magistrate Judge George Foley, Jr on 1/29/2019. (Copies have been distributed pursuant to the NEF - DRM) Modified on 2/1/2019 to reflect corrected image available (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ON DEMAND DIRECT RESPONSE, LLC,

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Case No. 2:15-cv-01576-MMD-GWF

Plaintiff,
v.

ORDER

SHANA LEE MCCART-POLLAK,
Defendant.

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This matter is before the Court on Defendant McCart-Pollak’s Motion to Compel

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Compliance with Subpoena to Produce Documents (ECF No. 405), filed on December 19, 2018.

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To date, no party has filed an opposition to this motion and the time for response has now expired.

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BACKGROUND

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On November 14, 2018, Defendant McCart-Pollak (“McCart-Pollak”) served a subpoena

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on Mark Meyers (“Meyers”), Chief Executive Officer, of Spiral Toys. See Motion to Compel

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(ECF No. 405), 3. Although Meyers produced some requested documents, he represented to

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McCart-Pollak that there were no email records from April 2012 to June 2013 because “the email

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back-up was corrupt.” Id. at Exhibit 2. Meyers produced sales and royalties documents for 2015,

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but failed to produce such documents for years 2014, 2016, 2017, and 2018. Id. at 5. McCart-

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Pollak requests that the Court compel Meyers to comply with the subpoena, to hold Meyers in

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contempt, and for an award of sanctions.

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DISCUSSION

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Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain

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discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and

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proportional to the needs of the case, considering the importance of the issues at stake in the action,
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the amount in controversy, the parties’ relative access to relevant information, the parties’

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resources, and the importance of the discovery in resolving the issues, and whether the burden and

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expense of the proposed discovery outweighs its likely benefit. Information within the scope of

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discovery need not be admissible in evidence to be discoverable.”

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Rule 45 of the Federal Rules of Civil Procedure governs discovery by subpoena. Pursuant

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to Rule 45, a nonparty served with a subpoena has three options: it may (1) comply with the

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subpoena, (2) serve an objection on the requesting party in accordance with Rule 45(c)(2)(B), or

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(3) move to quash or modify the subpoena in accordance with Rule 45(c)(3). Genx Processors

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Mauritius Ltd. v. Jackson, 2018 WL 5777485, at *9 (D. Nev. Nov. 2, 2018) (citing In re Plise, 506

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B.R. 870, 878 (B.A.P. 9th Cir. 2014)). When a nonparty raises timely objections to the subpoenas,

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the nonparty is not required to produce documents, or even search for them, until the propounding

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party obtains an order directing compliance. Id.

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The subpoena requests documents such as licensing agreements, royalty statements,

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purchase orders, and profit and loss statements as they relate to the CloudPet Product. Such

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requests are relevant to McCart-Pollak’s renewed motion to calculate damages. Meyers failed to

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serve any objection to the subpoena and has not responded to the motion to compel. The Court

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grants McCart-Pollak’s motion to compel. Spiral Toys is ordered to comply with the subpoena no

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later than February 12, 2018. Rule 45(e) provides that a court may “hold in contempt a person

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who, having been served, fails without adequate excuse to obey the subpoena.” Forsythe, 281

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F.R.D. at 587. McCart-Pollak requests that the Court hold Meyers in contempt and for an award

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of costs. The Court denies McCart-Pollak’s request to hold Meyers in contempt at this time. The

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Court, however, grants her request for reasonable fees and costs of bringing her motion to compel.

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McCart-Pollak shall file her application describing her costs legitimately incurred in relation to

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her motion to compel no later than February 8, 2019. Accordingly,

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IT IS HEREBY ORDERED that Defendant McCart-Pollak’s Motion to Compel
Compliance with Subpoena to Produce Documents (ECF No. 405) is granted.
IT IS FURTHER ORDERED that McCart-Pollak shall file her application for costs no
later than February 8, 2019.
Dated this 29th day of January, 2019.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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