Infodeli, LLC v. Amazon Web Services, Inc.

Filing 25

ORDER DIRECTING SUPPLEMENTAL BRIEFING on Plaintiff's 2 motion to compel. The court ORDERS the parties to file simultaneous supplemental briefing of no more than five (5) pages. The parties' briefs are due no later than Tuesday, April 18, 2017 at 5:00 p.m. Signed by Judge James L. Robart. (PM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 INFODELI, LLC, 10 CASE NO. C17-0281JLR ORDER DIRECTING SUPPLEMENTAL BRIEFING Plaintiff, 11 v. 12 AMAZON WEB SERVICES, INC., 13 Defendant. 14 15 I. INTRODUCTION 16 Before the court is Plaintiff InfoDeli, LLC’s motion to compel Defendant Amazon 17 Web Services, Inc.’s (“Amazon”) to comply with a subpoena. (Mot. (Dkt. # 2).) For the 18 reasons set forth below, the court orders supplemental briefing from the parties. 19 20 21 22 II. A. BACKGROUND & ANALYSIS Events Leading to the Instant Motion InfoDeli’s motion arises from a copyright infringement action currently pending before the United States District Court for the Western District of Missouri (“the ORDER - 1 1 Underlying Action”). (See Mot. at 1; Rosemergy Decl. (Dkt. # 3) ¶ 1); InfoDeli, LLC, et 2 al. v. W. Robidoux, Inc., et al., No. C15-364BCW (W.D. Mo.), Dkt. # 1. In the 3 Underlying Action, InfoDeli alleges that the defendants have misappropriated computer 4 code that InfoDeli wrote. (See Mot. at 2.) InfoDeli further alleges that one of the 5 defendants—Engage Mobile Solutions, LLC (“Engage”)—“permanently stored archival 6 versions of code, including infringing code,” on Amazon’s servers. (Id.) 7 To obtain the allegedly infringing code, InfoDeli served non-party Amazon with a 8 subpoena to produce the archival data Engage allegedly stored on Amazon’s servers.1 9 (See id. at 1-2; Rosemergy Decl. ¶ 5, Ex. 2 (Dkt. # 3-1) (“Subpoena”).) The subpoena 10 directed Amazon to produce responsive material no later than September 14, 2016. 11 (Rosemergy Decl. ¶ 6; Subpoena at 7.) On September 19, 2016, Amazon served 12 objections to the subpoena.2 (Rosemergy Decl. ¶ 9, Ex. 5 (“Obj.”).) 13 After Amazon objected, the parties met and conferred several times between 14 October 2016 and December 2016 in an attempt to effectuate InfoDeli’s requests. (See 15 Mot. at 3; Rosemergy Decl. ¶ 10.) Nevertheless, on December 16, 2016, Amazon 16 advised InfoDeli that Amazon “intended to stand on its objections to the subpoena” and 17 18 19 20 1 InfoDeli first served Amazon by email on August 12, 2016. (Mot. at 2; Rosemergy Decl. ¶ 2.) When InfoDeli’s counsel followed up with Amazon by email, Amazon informed InfoDeli that Amazon would not accept service by email and directed InfoDeli to serve the subpoena by mail. (Rosemergy Decl. ¶ 4.) Accordingly, on August 30, 2016, InfoDeli served Amazon with the subpoena by certified mail. (Id. ¶ 5, Ex. 3.) Amazon also “produced approximately 300 pages of responsive information including account registration details and records describing [Engage’s] account usage history including data transfers by date and size, dating back to January 1, 2014.” (Chock Decl. (Dkt. # 14) ¶ 7.) InfoDeli contends that this production is inadequate. (See Reply (Dkt. # 21) at 5 n.3.) 2 21 22 ORDER - 2 1 “would not be complying with the subpoena.” (Mot. at 3; Rosemergy Decl. ¶ 10.) 2 InfoDeli filed its motion to compel on February 21, 2017. (See generally Dkt.) 3 B. Amazon’s Response In response, Amazon asserts that InfoDeli’s motion to compel is untimely.3 (Resp. 4 5 (Dkt. # 13) at 4-7; Mot. at 1 (filing motion to compel on February 21, 2017); see also 6 InfoDeli v. W. Robidoux, Dkt. # 378 at 1 (setting discovery deadline of February 20, 7 2017). Courts generally deny as untimely motions to compel filed after the close of 8 discovery unless the court’s scheduling order sets a different date. See, e.g., Short v. 9 Equifax Info. Servs. LLC, No. 3:14-CV-0471-YY, 2016 WL 6683563, at *3 (D. Or. Nov. 10 14, 2016); Voter v. Avera Brookings Med. Clinic, No. Civ. 06-4129-KES, 2008 WL 11 4372707, at *1 (D.S.D. Sept. 22, 2008) (collecting cases); David v. Signal Int’l, LLC, No. 12 08-1220, 2014 WL 6612598, at *2 (E.D. La. Nov. 19, 2014) (same). In considering 13 whether to allow an untimely motion to compel, courts consider the following factors: 14 (1) how long after the discovery deadline the moving party filed its motion to compel; (2) 15 the amount of time the moving party knew about the discovery; (3) whether the court has 16 previously extended the discovery deadline; (4) the moving party’s reason for its delay or 17 tardiness; (5) whether dispositive motions have been filed or scheduled; (6) the age of the 18 case; (7) any prejudice to the party from whom the moving party seeks untimely 19 discovery; and (8) whether the untimely motion disrupts the court’s schedule. See Short, 20 // 21 The court does not address at this time the merits of InfoDeli’s motion, the merits of Amazon’s opposition to the motion, or other issues that the parties raise in those filings. 3 22 ORDER - 3 1 2016 WL 6683563, at *3; David, 2014 WL 6612598, at *3; Days Inn Worldwide, Inc. v. 2 Sonia Invs., 237 F.R.D. 395, 398 (N.D. Tex. 2006). 3 In the Underlying Action, the Honorable Brian C. Wimes stayed discovery on all 4 matters unrelated to InfoDeli’s copyright infringement claim. InfoDeli v. W. Robidoux, 5 Dkt. # 141 at 5-6 (granting the defendants’ motion for “a stay of discovery of all issues 6 that are unrelated to their liability under Count I, for copyright infringement”). 7 Accordingly, Judge Wimes’s scheduling orders allowed the parties to conduct discovery 8 related only to InfoDeli’s copyright infringement claim. See id., Dkt. ## 49, 151, 206, 9 281, 297, 327, 378 (scheduling orders). After extending the initial discovery cut-off six 10 times, Judge Wimes issued his final scheduling order related to the copyright 11 infringement phase of the case and ordered that discovery be completed no later than 12 February 20, 2017. Id., Dkt. # 378 at 1. 13 Nevertheless, InfoDeli contends in its reply brief that its February 21, 2017, 14 motion is “not untimely because the discovery at issue is not solely related to the issue of 15 infringement.” (Reply at 8.) InfoDeli also states that the discovery it seeks from 16 Amazon is “relevant to willfulness [and] spoliation” and “was also identified in a Rule 17 56(d) [d]eclaration as being necessary to respond to a currently pending [m]otion for 18 [s]ummary [j]udgment.” (Id.) Further, although InfoDeli does not advance this argument 19 in its briefing, Amazon provides an email from InfoDeli’s counsel in which InfoDeli 20 contends that it filed its motion to compel one day late because February 20, 2017, fell on 21 a federal holiday—President’s Day. (Wigginton Decl. (Dkt. # 16) ¶ 12, Ex. S.) 22 // ORDER - 4 1 InfoDeli filed its motion to compel one day after the close of discovery, even 2 though Judge Wimes’s scheduling order set a date certain—February 20, 2017—for the 3 close of discovery. (See Mot. at 1); cf. Sloan v. Country Preferred Ins. Co., No. 4 2:12-CV-01085-KJD-PAL, 2013 WL 1405852, at *1 (D. Nev. Apr. 4, 2013) (“When the 5 Court specifies a date for a response, the response is not untimely when it is filed on or 6 before that date.”). Further, it does not appear that Judge Wimes has lifted the stay on 7 discovery of any of InfoDeli’s non-copyright infringement claims. See InfoDeli v. W. 8 Robidoux, Dkt. # 141 at 5-6; id., Dkt. # 358. In addition, there is no indication that Judge 9 Wimes has yet ruled on InfoDeli’s Rule 56(d) request or otherwise allowed additional 10 discovery. See id., Dkt. # 417-3; see also Fed. R. Civ. P. 56(d)(2) (“If a nonmovant 11 shows by affidavit [that] it cannot present facts essential to justify its opposition, the 12 court may . . . allow time to obtain affidavits or declarations or to take discovery . . . .”). 13 Therefore, based on the docket in the Underlying Action, it appears that InfoDeli has 14 filed an untimely motion to compel or attempted to engage in discovery of matters 15 subject to the stay. 16 C. 17 Supplemental Briefing The court directs the parties to file simultaneous supplemental briefing on the 18 issue of whether InfoDeli’s motion to compel is timely, and if it is untimely, whether the 19 court should nevertheless consider the motion. The parties must limit their supplemental 20 briefing to no more than five (5) pages each and must file the briefing no later than 21 Tuesday, April 18, 2017, at 5:00 p.m. The parties must address the relevant case law on 22 untimely motions to compel, including the factors articulated in this order, and discuss ORDER - 5 1 how the procedural posture of the Underlying Action affects whether the court should 2 consider the merits of the motion to compel. The court will not consider any issues the 3 parties raise that are beyond the scope of the issues raised in this order. 4 III. CONCLUSION 5 For the reasons set forth above, the court ORDERS the parties to file simultaneous 6 supplemental briefing of no more than five (5) pages. The parties’ briefs are due no later 7 than Tuesday, April 18, 2017 at 5:00 p.m. 8 Dated this 11th day of April, 2017. 9 10 A 11 JAMES L. ROBART United States District Judge 12 13 14 15 16 17 18 19 20 21 22 ORDER - 6

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