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

Filing 446

ORDER that Non-Party Jay International, Hong Kong Limiteds ("Jay at Play") Motion for Protective Order (ECF No. #424 ) is granted, in part, and denied, in part, according to the provisions herein order. Signed by Magistrate Judge George Foley, Jr on 4/25/2019. (Copies have been distributed pursuant to the NEF - LH)

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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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Plaintiff,
v.

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

SHANA LEE MCCART-POLLAK,
Defendant.

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This matter is before the Court on Non-Party Jay International, Hong Kong Limited’s (“Jay

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at Play”) Motion for Protective Order (ECF No. 424), filed on February 28, 2019. Defendant

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McCart-Pollak filed her Opposition (ECF No. 431) on March 18, 2019 and Jay at Play filed its

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Reply (ECF No. 432) on March 22, 2019. The Court conducted a hearing in this matter on March

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29, 2019.

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BACKGROUND
On January 18, 2019, the Court granted McCart-Pollak’s motion for permission to serve a

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non-party subpoena on Jay at Play to request documents reflecting royalty payments made to

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Plaintiff On Demand Direct Response, LLC (“On Demand”). See ECF No. 409. On January 25,

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2019, McCart-Pollak served a subpoena on Jay at Play’s affiliate, Jay Franco & Sons, Inc. See

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Motion for Protective Order (ECF No. 424), 2. On February 13, 2019, Jay at Play produced

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responsive documents. Id. Jay at Play argues that McCart-Pollak did not properly serve the

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subpoena upon Jay at Play and that McCart-Pollak’s requests for production are unduly

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burdensome as well as not proportionate to the needs of the case. McCart-Pollak argues that Jay

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at Play did not produce all requested documents, including royalty reports from March 2016 to

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June 2018. She further argues that Jay at Play’s objections are untimely and are, therefore,

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waived.
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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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When a party moves for a protective order, the court “may, for good cause, issue an order

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to protect a party or person from annoyance, embarrassment, oppression, or undue burden or

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expense.” Fed. R. Civ. P. 26(c)(1). “Rule 26(c) confers broad discretion on the trial court to decide

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when a protective order is appropriate and what degree of protection is required.” Youngevity Int'l,

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Inc. v. Smith, 2017 WL 2692928, at *3 (S.D. Cal. June 22, 2017). The party moving for a

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protective order has the burden of demonstrating good cause for its issuance. Fed.R.Civ.P.

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26(c)(1); U.S. E.E.O.C. v. Caesars Entertainment, Inc., 237 F.R.D. 428, 432 (D.Nev. 2006). This

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burden may be met by showing that the discovery requested is irrelevant, overly broad,

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burdensome, or oppressive. Youngevity Int'l, Inc., 2017 WL 2692928, at *3.

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“[G}eneral or boilerplate objections such as ‘overly burdensome and harassing’ are

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improper – especially when a party fails to submit any evidentiary declarations supporting such

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objections.” Gray v. Unum Life Ins. Co. of Am., 2018 WL 4566850, at *2 (C.D. Cal. Sept. 21,

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2018) (citing A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006)). A

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non-party’s failure to make timely objections to a Rule 45 subpoena generally results in the finding

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that any objections have been waived. Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal.

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2005) (citing Creative Gifts, Inc. v. UFO, 183 F.R.D. 568, 570 (D.N.M.1998)). However, [i]n

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unusual circumstances and for good cause, … the failure to act timely will not bar consideration

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of objections.” Moon, 232 F.R.D. at 636. Courts have found unusual circumstances, for instance,

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where the subpoena is overbroad on its face and exceeds the bounds of fair discovery and the

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subpoenaed witness is a non-party acting in good faith. Id. (citing McCoy v. Southwest Airlines
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Co., Inc., 211 F.R.D. 381, 385 (C.D.Cal.2002)). When a request is overly broad on its face or

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when relevancy is not readily apparent, however, the party seeking discovery has the burden to

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show the relevancy of the request. Desert Valley Painting & Drywall, Inv. v. United States, 2012

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WL 4792913, at *2 (D.Nev. Oct. 9, 2012) (citing Marook v. State Farm Mut. Auto. Ins. Co. 259

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F.R.D. 388, 394-95 (N.D. Iowa 2009)).

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Non-Party Jay at Play produced responsive documents to McCart-Pollak that include the

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license agreement between Jay at Play and On Demand as well as reports reflecting sums of all

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royalties paid to On Demand by Jay at Play and Jay Franco & Sons. See Motion for Protective

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Order (ECF No. 424), 2. In light of the overbroad nature of the subpoena served on Non-Party

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Jay at Play and that it is acting in good faith, the Court finds good cause to consider Jay at Play’s

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objections. McCart-Pollak’s requests for all communications regarding negotiations and the

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concept and development of the CloudPets product between Jay at Play and On Demand are

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overbroad and not proportional to the need of this case. The Court, therefore, grants Jay at Play’s

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motion for protective order, in part, and it is not required to respond to such requests.

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However, McCart-Pollak’s requests regarding royalty payments for the CloudPet product

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between Jay at Play and On Demand are relevant to McCart-Pollak proving up her damages. Jay

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at Play represents that it has produced relevant documents in its possession, custody, or control,

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including reports that reflect sums paid to On Demand. If Jay at Play has documents that reflect

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royalty payments made to On Demand after the date of the last royalty statement that has already

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been produced, it is instructed to produce such documents within fourteen (14) days of the issuance

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of this order.

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A responding party must make a reasonable inquiry to determine whether responsive

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documents exist. Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D.Cal.2012) (quoting Marti v.

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Baires, 2012 WL 2029720, at *19–20, (E.D. Cal. June 5, 2012). If Jay at Play intends to claim an

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undue burden or expense in relation to producing such documents, it must allege specific facts

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which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence.

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Barnum v. Equifax Info. Servs., LLC, 2018 WL 1245492, at *2 (D. Nev. Mar. 9, 2018); see also

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Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 529 (D. Nev. 1997); U.S. E.E.O.C. v.
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Caesars Entertainment, 237 F.R.D. 428, 432 (D. Nev. 2006). Once a burden has been established,

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the Court must question whether the burden is undue and then balance the burden identified with

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the likely benefit of the discovery being sought. Barnum, 2018 WL 1245492, at *2 (citing Roberts

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v. Clark County School Dist., 312 F.R.D. 594, 603 (D. Nev. 2016)).

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“A party, however, is not required to create a document where none exists.” Id. If Jay at

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Play does not possess such documents, it should so state with sufficient specificity to allow the

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Court to determine whether the party made a reasonable inquiry and exercised due diligence. See

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Perrotte v. Johnson, 2019 WL 176786, at *3 (E.D. Cal. Jan. 11, 2019). Accordingly,

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IT IS HEREBY ORDERED that Non-Party Jay International, Hong Kong Limited’s

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(“Jay at Play”) Motion for Protective Order (ECF No. 424) is granted, in part, and denied, in part,

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according to the provisions herein.

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Dated this 25th day of April, 2019.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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