Summary
suspending any ruling on cross motions to enforce and quash a subpoena in an ancillary proceeding because the court in the underlying action was overseeing a discovery dispute between the parties over the subpoenaed documents
Summary of this case from Malibu Media, LLC v. DoeOpinion
Case No. 2:08-mc-007.
April 7, 2008
ORDER
This action was filed in order to enforce a subpoena issued from this Court to Alliance Industries, Inc. The subpoena requested Alliance to produce documents in connection with an action pending in the Northern District of Florida. Prosonic, Boart Longyear Limited, and Mr. Baker are the parties in that action. After the motion to enforce was filed, the Court held two telephonic status conferences and encouraged the parties to reach a compromise with respect to the subpoena. They were unable to do so and the motion to enforce, together with a responsive motion to quash, are now fully briefed. For the following reasons, the Court will stay further action pending additional proceedings in the underlying litigation.
By way of brief background, Mr. Baker was employed by Prosonic at one time. He was subject to a non-competition agreement there. He left Prosonic in 2005 or 2006. Its stock, which was owned by Alliance, was then sold to Longyear Holdings, Inc., a subsidiary of Boart Longyear. The Florida action was filed by Prosonic, and Boart later joined as a plaintiff. Boart and Prosonic seek to enforce Mr. Baker's non-competition agreement.
Mr. Baker has questioned whether either plaintiff in the Florida case can enforce the agreement. He has asked them to produce documents relating to the 2006 stock sale. For reasons more fully discussed below, they have not done so yet. Alliance also has those documents because it was the seller in the stock purchase transaction. Operating under some time pressure in the Florida case, Mr. Baker served subpoenas on both Alliance and its counsel requesting that one or both of them produce these documents. Both have resisted doing so. Alliance's primary objection is that it is not a party to the Florida case and should not have to shoulder any expense or burden to produce these documents when they can be obtained from the parties in that case.
It is clear that this Court cannot shirk its responsibility to decide issues arising from the service of a subpoena on a non-party who resides in this District simply by transferring the proceedings to the court in which the underlying litigation is pending. In re Sealed Case, 141 F.3d 337 (Fed. Cir. 1998). On the other hand, the Court has substantial discretion to stay enforcement proceedings when the issue may be resolved by a ruling from that other court. See, e.g., Floorgraphics v. News America Marketing In-Store Services, 2007 WL 1544572 (D. Minn. May 23, 2007). Many times, the court from which the subpoena has issued will "remit" the matter to the other court by directing the parties to engage in motions practice before that court. See, e.g., Clausnitzer v. Federal Express Corp., 2007 WL 2422039 (N.D. Ga. August 22, 2007).
The authority to stay a ruling on, or even deny, a motion for enforcement of a subpoena is not limited to those situations where the parties themselves (rather than the target of the subpoena) wish to litigate an issue concerning the appropriateness of the discovery. In a case remarkably similar to this one, the court in Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975 (Fed. Cir. 1993) upheld a district court's refusal to enforce a subpoena issued to a non-party to the underlying out-of-district litigation on grounds that the same documents could have been requested in that underlying litigation from the opposing party. Citing to Rule 26(c), the court concluded that the availability of the same documents from a litigation opponent is a factor which may be considered in deciding whether to burden a non-party with the obligation to produce such documents in an ancillary proceeding. Id. at 978.
The Court understands that Mr. Baker has attempted to obtain these documents from Alliance only after making an effort to get them from Prosonic and Boart, and that he moved promptly in this district because he was under certain time pressures in the Florida litigation. It now appears that those time pressures have been relaxed. The Florida court has denied a motion to compel production of these documents from Prosonic and Boart because the original document request was too broad, but it has held out the possibility that a narrower version of the requests can be enforced, and has directed the parties to work cooperatively to narrow the request and to agree on some document production. Although Mr. Baker argues that the failure of Prosonic and Boart to engage in the "meet and confer" process ordered by the Florida court makes his request for enforcement in this Court all the more crucial, he is not without his remedies in Florida. An unreasonable failure of one party to engage in a meet and confer process can easily be addressed by the court which ordered the process.
For the foregoing reasons, the Court concludes that Mr. Baker still has a meaningful remedy available to him in the Northern District of Florida concerning the documents subpoenaed from Alliance. As long as that is the case, and the timing of that remedy is not prejudicing Mr. Baker's ability to defend that litigation, the Court will exercise its discretion to suspend any ruling on the motions to enforce and to quash until Mr. Baker has exhausted his ability to obtain similar relief from the Florida Court. Mr. Baker may, through counsel, request a reactivation of these proceedings at any time by arranging for an informal conference with the Magistrate Judge.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.