CINDY K. JORGENSON, District Judge.
Pending before the Court is the Motion to Compel Mr. Masud Mansuripur's Compliance with Their Subpoena Dated December 13, 2012 (Doc. 1). A response and a reply have been filed.
Plaintiff Voxpath RS, LLC ("Voxpath"), filed an action in the United States District Court for the District of New Jersey against multiple defendants, including Samsung Electronics America, Inc., and Samsung Electronics Co., Ltd. ("Samsung"), in 12CV952 (DMC) (JAD).
Samsung asserts Voxpath submitted a 60 page declaration, including exhibits, of Masud Mansuripur "in support of Voxpath's responsive claim construction brief but then refused to acknowledge that Mansuripur was an expert and that Defendants were entitled to any discovery from Mansuripur." Motion, p. 2. On January 3, 2013, Samsung served a subpoena issued out of the District Court of Arizona on Mansuripur. Samsung asserts the subpoena commanded Mansuripur to appear for deposition and to produce documents for inspection and copying. See Motion, Ex. 2, Doc. 1-4. According to Samsung, Mansuripur responded that "Samsung had no right to subpoena Mansuripur because the District of New Jersey's Local Patent Rules (L.Civ.R. 9.3) do not state when a party can depose an expert who only submitted a declaration in support of a responsive claim construction brief." Motion, p. 6, citing Motion, Ex. 4, Doc. 1-6, 12/20/12 Email from A. Weiss to J. Lukas. Mansuripur asserts Samsung, in seeking to open expert discovery early, refused to provide a substantive response to Samsung's authority. Samsung asserts that discovery is open, Mansuripur submitted a declaration to the Court on behalf of Voxpath. and Fed.R.Civ.P. 45(a)(3) authorizes a subpoena.
Mansuripur served Objections and Responses to Samsung's Subpoena - the response to each request was that "Mansuripur believes that Samsung is in possession of all responsive, non-privileged documents." Motion, Doc. 1, p. 7. Samsung asserts it was advised Mansuripur was not available for deposition on the noticed date. Mansuripur asserts he has responded to the subpoena, he has made himself available for deposition, and Samsung has not yet taken advantage of Mansuripur's availability for deposition. Samsung asserts Voxpath and Mansuripur have not responded to Samsung's efforts to communicate regarding the dispute and have refused to meet and confer regarding the dispute.
Samsung filed the pending Motion to Compel Mr. Masud Mansuripur's Compliance with Their Subpoena Dated December 13, 2012, on March 1, 2013. The parties sought, and obtained, multiple extensions of time to complete briefing in this matter based on the assertion the out-of-state litigation may be resolved.
Transfer to District of New Jersey
Samsung proposes a possible transfer of this issue to the District of New Jersey as the site of the underlying litigation. Mansuripur agrees such a transfer may be appropriate. Response, Doc. 22, p. 2, n. 3. However, Fed.R.Civ.P. 45(c)(3)(A) provides that "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)(A)(iii)-(iv). The Ninth Circuit Court of Appeals has determined that only the issuing court may quash a subpoena. S.E.C. v. CMKM Diamonds, Inc., 656 F.3d 829, 832 (9th Cir. 2011). The court explicitly addressed the possibility of transferring motions to quash and held that the "court that issued the subpoena... not the court where the underlying action is pending [is the only court that] can entertain a motion to quash or modify a subpoena." Id. This Court, therefore, declines to transfer this matter to the District of New Jersey.
Disclosure of specified information must be provided as set forth in Fed.R.Civ.P. 26(a)(1). Moreover, discovery in civil cases is permitted as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Fed.R.Civ.P. 26(b)(1). Furthermore, Rule 26 permits the discovery of information which may relate "to the credibility of a witness or other evidence in the case[.]" Schwarzer, Tashima & Wagstaff, Federal Civil Procedure Before Trial § 11.624. One purpose of discovery is to "reveal what evidence the opposing party has, thereby helping determine which facts are undisputed - perhaps paving the way for a summary judgment motion - and which facts must be resolved at trial." Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1117 (9th Cir. 2004). Indeed, "[t]he purpose of discovery is to provide a mechanism for making relevant information available to the litigants... Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues..." Burlington Northern & Santa Fe Ry. Co. v. United States, 408 F.3d 1142, 1148-49 (9th Cir. 2005), citation omitted.
Additionally, the "scope of discovery through a subpoena is the same as that applicable to Rule 34 and other discovery rules." Fed.R.Civ.P. 45, Advisory Committee Notes (1970); see also, Exxon Shipping Co v. U.S. Dept. of Interior, 34 F.3d 774, 779 (9th Cir. 1994) (applying both Rule 26 and Rule 45 standards to rule on a motion to quash subpoena). However, the Court must quash a subpoena when the Court finds that answering the subpoena (1) will disclose privileged or protected information, (2) will not invoke an exception or waiver of the privilege, and (3) will unduly burden the party subject to the subpoena. Fed.R.Civ.P. 45(c)(3)(A)(iii)-(iv); see also Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) ("A court may find that a subpoena presents an undue burden when the subpoena is facially overbroad"). An objecting party must state specifically how, despite the broad and liberal construction of the discovery rules, each question is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Klein v. AIG Trading Group, Inc., 228 F.R.D. 418, 422 (D.Conn. 2005); see also Doyle v. F.B.I., 722 F.3d 554 ...