Intellectual Ventures I LLC et al v. Xilinx, Inc. et al
ORDER DENYING 1 Motion to Quash. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
IN RE: SUBPOENA ISSUED TO
NON-PARTY PAUL REIDY
INTELLECTUAL VENTURES I LLC,
AND INTELLECTUAL VENTURES
MICROSEMI CORPORATION, LATTICE §
CIVIL NO. 10-CV-1065-LPS
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
Before the Court are: Third Party Paul F. Reidy’s Motion for Protective Order to Quash or
Modify Xilinx Inc.’s Third Party Deposition Subpoena to Paul F. Reidy in Related Case (Dkt. No.
1); Xilinx’s Response to the Motion for Protective Order or to Quash or Modify Xilinx Inc.’s Third
Party Deposition Subpoena to Paul F. Reidy in Related Case (Dkt. No. 5); and Paul F. Reidy’s Reply
in Support of Motion for Protective Order to Quash or Modify Xilinx Inc.’s Third Party Subpoena
(Dkt. No. 6). The District Court referred the motion to the undersigned for resolution pursuant to
28 U.S.C. §636(b)(1)(A) and Rule 1(c) of Appendix C of the Local Rules of the United States
District Court for the Western District of Texas.
The motion before the Court relates to a patent infringement case filed in federal court in
Delaware. Defendant Xilinx noticed the deposition of non-party Paul F. Reidy in the Western
District of Texas, with the deposition set to occur on April 29, 2013. The end of the discovery
period permitted by the presiding judge’s scheduling order was April 30, 2013. Reidy did not appear
at the deposition. Counsel for each party conferred about the scope and necessity of the deposition
throughout May and could not reach an agreement about deposing Reidy. Reidy ultimately filed the
motion now before the Court. Although it has responded to the motion, Xilinx has not filed a motion
to compel the deposition.
Under Federal Rule of Civil Procedure 45(c)(3), a court may, “on timely motion . . . quash
or modify a subpoena that: (i) fails to allow a reasonable time to comply . . . [or] (iv) subjects a
person to undue burden.” In general, courts have read “timely” to mean within the time set in the
subpoena for compliance. United States ex. rel. Pogue v. Diabetes Treatment Centers of Am., Inc.,
238 F.Supp.2d 270, 278 (D. D.C. 2002) (holding that a motion to quash made 10 months after the
return date of the subpoena is untimely); Allender v. Raytheon Aircraft Co., 220 F.R.D. 661, 665
(D. Kan. 2004) (return date for production subpoena had already passed so motion to quash was
untimely).1 Reidy did not move to quash the deposition until after the date for the deposition had
passed and he had failed to appear. The deposition was noticed nine days prior to the date it was to
occur. This was more than adequate time for Reidy to move to quash the deposition. Neither party
has stated that the deposition has been re-noticed and no motion to compel is on file with this Court.
The motion to quash is not timely.
See also Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D. N.Y. 2002) (stating
that “it is reasonable to assume that the motion to quash should be brought before the noticed dates
of the scheduled deposition.”); Merch. Antitrust Litig., 186 F.R.D. 344, 350 (W.D. Va. 1999) (a
motion to quash filed 36 days after corporate representatives became aware of subpoena and two
months after it was due is untimely); Central States, Se. & Sw. Areas Pension Fund v. GWT 2005
Inc., No. 06 CV 1205, 2009 WL 3255246, at *1 (N.D. Ill. Oct. 6, 2009) (holding that a motion to
quash is “timely” under Rule 45(c)(3)(A) when it is filed on or before the date of compliance); see
9 MOORE 'S FEDERAL PRACTICE–CIVIL § 45.50 (2006) (timeliness means within the specified
compliance period, so long as that period is of reasonable duration).
Accordingly, Third Party Paul F. Reidy’s Motion for Protective Order to Quash or Modify
Xilinx Inc.’s Third Party Deposition Subpoena to Paul F. Reidy in Related Case (Dkt. No. 1) is
SIGNED this 8th day of July, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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