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Century International Arms Incorporated v. XTech Tactical, LLC

United States District Court, D. Arizona

January 15, 2020

Century International Arms Incorporated, Plaintiff,
v.
XTech Tactical LLC, et al., Defendants.

          ORDER

          G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the Court is Non-Party TangoDown, Inc.'s (“TangoDown”) Motion to Quash and/or Limit Subpoena Duces Tecum. (Doc. 67.) The Motion is denied.

         BACKGROUND

         Plaintiff Century International Arms, Inc. (“Plaintiff”) brings this action against Defendant XTech Tactical, LLC (“XTech”) and Defendant Jeremy Deadman (“Deadman”) for violations of the Lanham Act and Arizona unfair competition laws. In or around 2008, Plaintiff's predecessor, U.S. Palm, LLC (“US Palm”) designed and manufactured an AK30 AK-47 Magazine (“Magazine”) and AK-47 Grip (“Grip). TangoDown was employed by U.S. Palm as an independent contractor to help design the products and create the molds.

         Plaintiff later purchased all of U.S. Palm's assets including the trade dress of the Magazine and Grip. However, U.S. Palm's former manufacturer, led by Deadman, had illegally taken possession of the Magazine and Grip molds and provided units of the products to XTech. XTech began selling the Magazine and Grip without U.S. Palm's authorization, which gave rise to this suit.

         Defendants have asserted that TangoDown was the sole creator, and thus owner, of any intellectual property associated with the Magazine and Grip, thereby arguing that Plaintiff never owned the trade dress for either product. Consequently, as part of discovery in this matter, Plaintiff issued a subpoena to TangoDown seeking documents and information, from 2009 to present, that relate to the claims and defenses in this action. The subpoena was issued on December 1, 2019 with a response deadline for December 10, 2019.

         On December 9, 2019 TangoDown's Counsel Tracy Crump (“Crump”) contacted Plaintiff's Counsel Jeffrey Walsh (“Walsh”) and discussed TangoDown's objections to the subpoena. Crump explained that in order to properly respond to the subpoena TangoDown would need to extract electronic files from computers and servers that are no longer in use and are being stored in a warehouse. During this conversation, Crump and Walsh agreed to allow TangoDown an additional week to ascertain the scope of responsive documents and estimate the costs of having a third-party information technology firm retrieve the electronic files. Plaintiff further agreed to cover the associated cost of using a third-party technology firm and narrowed the scope of the requested information.

         The modified requests are:

1. Agreements between TangoDown and U.S. Palm or its predecessors and affiliates for the design and manufacture of AK-47 magazines and grips.
2. Documents showing payments made by U.S. Palm or its predecessors and affiliates, and/or revenues received by Tango Down, for the design, manufacturing and sale of those products.
3. Agreements between Tango Down and XTech or its predecessors and affiliates, for the design and manufacture of AK-47 magazines and grips, and other documents showing that Tango Down “after joining forces with the company that now owns their [U.S. Palm's] AK product assets”.
4. Documents showing that the grip now marketed by Tank [sic] Down is “the same grip, by the original designers, for the original molds.” 5. Documents showing payments made by XTech, or its predecessors and affiliates, and/or revenues received by Tango Down, for the design, manufacturing and sale of those products.
6. Documents supporting Tango Down's claim that the AK-47 grip described in the link you attached was “one of the most popular aftermarket improvements to the AK rifle, ever. “
7. Documents showing that the “shooting public” liked the product and were “showering” Tango Down to “bring it ...

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