Purolite Corporation v. Avantech Inc

Filing 22

ORDER AND OPINION denying 7 Motion to Compel; denying as moot 12 Motion for Protective Order; denying as moot 12 Motion to Quash. Signed by Honorable J Michelle Childs on 6/29/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Purolite Corporation,

)
)
Petitioner,
)
v.
)
)
AVANtech, Inc.,
)
)
Respondent,
)
___________________________________ )

Civil Action No. 3:17-cv-00692-JMC

ORDER AND OPINION

Petitioner, Purolite Corporation (“Purolite”), commenced this action by applying and
petitioning this court for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in
a Foreign Proceeding against Respondent Avantech, Inc. (“Avantech”). (ECF No. 1.)
Specifically, Purolite seeks to discover information concerning claims in a Japanese lawsuit
against Hitachi-GE Nuclear Energy, Ltd. (“HGNE”) in which Purolite asserts that HGNE
improperly solicited work from Avantech and misappropriated Purolite’s confidential,
proprietary, and trade secret information in breach of certain agreements and in violation of
Japanese law. Purolite AG v. Hitachi-GE Nuclear Energy, Ltd., Case No. Heisei 26th Year (Wa)
No. 29490, Tokyo District Court, Civil Division, Section 46-D.
This matter is before the court on Purolite’s Motion to Compel Supplemental Discovery
Pursuant to Court Order. (ECF No. 7.) Specifically, Purolite requests that Avantech (1) bring its
production current by searching for and producing responsive documents, if any, obtained or
created from the date of its last production through the present time; (2) cure the several, material
deficiencies identified by Purolite in its prior letters; and (3) commence electronic discovery by
using Purolite’s list of search terms to conduct an electronic search of its computer system and
servers in order to generate a hit report from which the parties could negotiate the scope of

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follow up discovery as a prerequisite to meet and confer. (ECF No. 7.) For the reasons that
follow, the Court DENIES Purolite’s Motion to Compel.
I. RELEVANT BACKGROUND
Purolite is a U.S. corporation headquartered in Pennsylvania and is currently engaged in
litigation against the Japanese company HGNE pending before a foreign tribunal in Tokyo,
Japan. (ECF Nos. 1-1, 1-2.) Purolite claims that HGNE is “illegally and improperly utilizing
Purolite’s confidential, proprietary and trade secret processes and information in connection with
HGNE’s on-going, extensive decontamination and remediation work” at the site of the damaged
Fukushima1 Daiichi Nuclear Power Station. (ECF No. 1-3.) As a part of this litigation, Purolite
sought discovery from Avantech, a South Carolina corporation and HGNE’s principal supplier,
under 28 U.S.C. § 1782 asserting that Avantech has information relevant to the Japanese
litigation. (Id.) This court granted Purolite’s § 1782 Petition on April 4, 2016, allowing Purolite
to proceed with discovery requests against Avantech. (ECF No. 5.)
On April 5, 2016, Purolite served both a Rule 45 Subpoena for the Production of
Documents and a Rule 30(b)(6) Deposition Subpoena on Avantech. (ECF Nos. 7-2, 7-3.) Shortly
thereafter Avantech produced 20,000 documents to Purolite. On June 10, 2016, Purolite sent
Avantech a letter detailing seven categories in which it asked for further production. (ECF No.
11-5.) Moreover, Purolite requested in its June 10, 2016 Letter that Avantech run six specific
search terms which led to the production of an additional 2,000 documents. (ECF No. 11-4.) On
July 21, 2016, Avantech decided to retain counsel and shortly thereafter, counsel objected to
Purolite’s subpoenas on July 29, 2016 (Id.) On August 31, 2016, Purolite filed suit against

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The Fukushima Nuclear power plant was damaged during the 2011 Japanese Tōhoku
Earthquake and Tsunami which led to the plant’s nuclear meltdown and the largescale release of
radioactive material.

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Avantech, Hitachi America, Ltd. and two of Avantech’s corporate officers in the United States
District Court for the Southern District of New York alleging the same claims that gave rise to
the Japanese litigation. (ECF No. 11.) On January 6, 2017, the Southern District of New York
granted a stay in the suit pending a resolution in the Japanese litigation. On January 31, 2017,
Purolite sent Avantech a letter reiterating most of the June 10, 2016 Letter and asking Avantech
to run fourteen more search terms. (ECF No. 7-5.) On February 16, 2017, Avantech responded to
Purolite’s January 31, 2017 Letter and asserted that it had complied with the subpoena and would
not voluntarily produce additional documents but offered to continue to confer as to any specific
issues. (ECF No. 11-4.) The next day, February 17, 2017, Purolite filed the instant Motion to
Compel. (Id.)
II. LEGAL STANDARD
A.

Discovery Generally
The amended Fed. R. Civ. P. 26 provides that “[p]arties may obtain discovery regarding

any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” Fed. R. Civ. P. 26(b)(1). The scope of discovery permitted by Rule 26 is
designed to provide a party with information reasonably necessary to afford a fair opportunity to
develop its case. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc.,
967 F.2d 980, 983 (4th Cir. 1992). Nevertheless, discovery is not limitless, and the court has the
discretion to protect a party from “oppression” or “undue burden or expense.” Fed. R. Civ. P.
26(c).
B.

Motions to Compel
“If a party fails to make a disclosure” required by Fed. R. Civ. P. 26, “any other party

may move to compel disclosure and for appropriate sanction” after it has “in good faith

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conferred or attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a). Specifically, a party “may
move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P.
37(a)(3)(B). Broad discretion is afforded a district court’s decision to grant or deny a motion to
compel. See, e.g., Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929
(4th Cir. 1995) (“This Court affords a district court substantial discretion in managing discovery
and reviews the denial or granting of a motion to compel discovery for abuse of discretion”
(internal citation omitted.); Erdmann v. Preferred Research Inc., 852 F.2d 788, 792 (4th Cir.
1988); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel
discovery is addressed to the sound discretion of the district court.”). In applying Rule 26’s broad
discovery, a party objecting to discovery must first show that the information sought is not
relevant before showing that it is not proportional to the needs of the case. Polycarpe v. Seterus,
Inc., No. 6:16-cv-1606-Orl-37TBS, 2017 U.S. Dist. LEXIS 77808, at *9 (M.D. Fla. May 23,
2017) (“proportionality requires counsel and the court to consider whether relevant information
is discoverable in view of the needs of the case.”) Additionally, the party resisting a discovery
request bears the burden of persuading the court that the requested information is outside the
scope of discovery. See Volumetrics Med. Imaging, LLC v. Toshiba Am. Med. Sys., 2011 U.S.
Dist. LEXIS 65422, at *20-21(M.D.N.C 2011) (collecting cases in the Fourth Circuit).
III. ANALYSIS
A.

The Parties’ Arguments
1. Purolite’s Position
In its Motion to Compel (ECF No. 7) and Memorandum in Further Support of Motion to

Compel Discovery (ECF No. 16), Purolite argues (1) that Avantech failed to comply with the
court ordered discovery, (2) Avantech’s objections to discovery are wrong, untimely, and moot,

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(3) Avantech has a continuing obligation to supplement discovery, (4) its request for relevant
discovery is not burdensome, and (5) its deposition subpoena is valid. (ECF Nos. 7 & 16.)
2. Avantech’s Position
In its Opposition to Petitioner’s Motion to Compel (ECF No. 11), Avantech asserts that
(1) it has complied with the document subpoena, (2) it does not have to bring document requests
current under Rule 26(e), (3) Purolite’s document demands would impose an undue burden on
Avantech, and (4) that the deposition subpoena is invalid because Purolite failed to give a time
and location for the deposition and failed to tender fees at the time of service for attendance and
mileage. (Id.) Moreover, Avantech contends that Purolite has not met its burden to show why
this court should order it to provide supplemental discovery, re-run searches for documents, or
run new searches for documents and that Purolite had failed to show the relevance of its requests
as to the Japanese litigation. (Id.)
B.

The Court’s Review
1. The Timeliness of Purolite’s Motion to Compel
It is first necessary to analyze the timeliness of Purolite’s Motion to Compel before

deciding if it merits consideration. Under Local Civil Rule 37.01 for the District of South
Carolina, “motions to compel discovery must be filed within twenty-one (21) days after receipt
of the discovery response to which the motion to compel is directed or, where no response has
been received, within twenty-one days (21) after the response was due.” Id. Here, Purolite’s
Motion to Compel is directed towards enforcing Avantech’s compliance with Purolite’s
subpoenas. Purolite received a letter from Avantech on July 29, 2016 (ECF No. 7-4) indicating
its objections to the subpoenas. Purolite waited nearly seven months until February 17, 2017, to
file the instant Motion to Compel. (ECF No. 7.) Purolite’s Motion to Compel answers to the

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original subpoenas is therefore untimely and does not merit further consideration.
2. Interpreting Purolite’s January 31, 2017 Letter as a Subpoena
Purolite’s Motion to Compel could be considered timely if the January 31, 2017 Letter
could be construed as a second subpoena for documents. Under Fed. R. Civ. P. 45(a)(1)(A),
every subpoena must:
(i) state the court from which it issued; (ii) state the title of the action and its
civil-action number; (iii) command each person to whom it is directed to do
the following at a specified time and place: attend and testify; produce
designated documents, electronically stored information, or tangible things in
that person's possession, custody, or control; or permit the inspection of
premises; and (iv) set out the text of Rule 45(d) and (e).
Id. In looking to the Letter, it is clear that requirements (i) and (ii) are met since Purolite has
stated both the court from which it is issued and the proper title of the action and civil action
number. It is not clear if requirement (iii) stating that a subpoena must command a person to do
certain specified things is met since Purolite only “respectfully request[s]” and “respectfully
ask[s]” Avantech to produce documents. (ECF No 11-5.) It appears that requirement (iii) is not
met because “[a] subpoena is not a polite suggestion or an invitation to negotiate. It is a
command . . . .” Builders Ass’n of Greater Chi. v. City of Chi, 2001 U.S. Dist. Lexis 14076, at
*26 (N.D. Ill. Aug. 29, 2001). As to the last requirement, it is evident that requirement (iv) has
not been met since nowhere in the Letter does Purolite lay out the text of Rule 45(d) and (e). See
Anderson v. Virgin Islands, 180 F.R.D. 284, 289-290 (D.V.I. 1992) (finding a subpoena
ineffective, for among other things, failing to state the text of the rules); Productos Mistolin, S.A.
v. Mosquera, 141 F.R.D. 226, 228 (D.P.R. 1992) (same). Since the January 31, 2017 Letter fails
to conform to the requirements of Rule 45(a)(1)(A), it cannot be construed as a second subpoena
for documents.

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IV. CONCLUSION

Since Purolite’s Motion to Compel is untimely and its January 31, 2017 Letter cannot be
construed as a second subpoena for documents, the court hereby DENIES Purolite’s Motion to
Compel.2 (ECF No. 7.)
IT IS SO ORDERED.

United States District Judge
June 29, 2017
Columbia, South Carolina

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  In light of the court’s decision, Avantech’s pending Motion for Protective Order, or in the
Alternative, Motion to Quash or Modify Subpoenas is DENIED AS MOOT. (ECF No. 12.)   

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