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Inc. v. Game Truck Licensing, LLC

United States District Court, Ninth Circuit

August 9, 2013

Games2U, Inc., Plaintiff,
v.
Game Truck Licensing, LLC, Defendant.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Non-Party Sandra L. Etherton's Motion to Quash or Modify Subpoena, (Doc. 1). For the reasons specified below, the Court grants the Motion.

BACKGROUND

Plaintiff Games2U, Inc. ("G2U") filed a patent infringement suit against Defendant Game Truck Licensing LLC ("GTL") in the Western District of Texas on March 13, 2012. ( See Games2U, Inc. v. Game Truck Licensing, LLC, 1:12-cv-022-LY, Doc. 1.) In response to G2U's Amended Complaint ("Complaint"), GTL filed a counterclaim against G2U alleging patent infringement. ( Id., Doc. 24.)

As GTL's patent counsel, Non-Party Movant Sandra L. Etherton prepared GTL's application for the patent-in-suit, U.S. Patent No. 8, 029, 368 (the "368 patent"). (Doc. 1 at 1.) The patent relates to a method for entertaining event attendees with a mobile multi-user video game system typically installed in a trailer. ( Id. at 1-2.) On June 19, 2013, G2U served a Rule 45 subpoena on Etherton in this District requesting documents and testimony. ( See Doc. 1, Ex. 1.) Etherton moved to quash or modify the subpoena on July 3. (Doc. 1.)

DISCUSSION

I. LEGAL STANDARD

"Unless otherwise limited by court order, ... Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...." Fed.R.Civ.P. 26. In order to obtain discovery, a party may, through the clerk of the appropriate district, issue a subpoena pursuant to Rule 45. On timely motion, however, the issuing court must quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(iii)-(iv).

II. ANALYSIS

A. Meet and Confer

Local Rule 7.2(j) states that "[a]ny discovery motion brought before the Court without personal consultation with the other party and a sincere effort to resolve the matter, may result in sanctions" and requires the moving party to attach a certification that such an effort was made.

G2U asserts and Etherton concedes that she did not meet and confer with G2U before filing this Motion. In this Court, however, the meet-and-confer obligation only attaches to discovery disputes between the Parties. ( See Case Management Order for Judge Snow ΒΆ 6 available at http://www.azd.uscourts.gov/.) Motions to oppose subpoenas served on non-parties are not subject to the meet-and-confer obligation. Therefore, Etherton was not required to confer with G2U before filing the Motion.

B. Timeliness

Rule 45 states that:

A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises-or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.

Fed. R. Civ. P. 45(c)(2)(b) (emphasis added). G2U argues that Etherton did not timely object to the subpoena. Etherton filed this Motion within 14 days of the subpoena. Filing a motion to quash or modify a subpoena under Rule 45(c)(3) is another route through which a party may state its objections. A party is not required to both serve objections under subsection (c)(2)(b) and a motion to quash on the serving party under subsection (c)(3) that state the same objections. Hence, Etherton complied with the Rules in opposing the subpoena.

C. Standing

Etherton, patent counsel for GTL, brings this Motion to quash or modify the subpoena on the basis of attorney-client privilege and work-product protection. "[I]t is universally accepted that the attorney-client privilege may be raised by the attorney." Fisher v. U.S., 425 U.S. 391, 402 n.8 (1976) (internal citations omitted). Therefore, Etherton has standing to bring this Motion.

D. Documents ...


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