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In re Delta

United States District Court, D. Delaware

October 17, 2018

In Re TQ DELTA and JASON H. VICK.

          Brian E. Farnan and Michael J. Farnan, FARNAN LLP, Wilmington, DE; James P. Murphy, MCANDREWS, HELD & MALLOY, LTD, Chicago, IL; Patricia Y. Ho, SHERIDAN ROSS PC, Denver, CO, attorneys for Plaintiff TQ Delta and nonparty Jason H. Vick.

          Jody C. Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Kenneth L. Dorsney, MORRIS JAMES LLP, Wilmington, DE, attorneys for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Pending before the Court is Plaintiff TQ Delta and nonparty Jason H. Vick's Motion to Quash Defendants' subpoenas to Jason H. Vick. (D.I. 1). The parties have fully briefed the issues. (D.I. 1, D.I. 22, D.I. 23). For the following reasons, the Court grants in part and denies in part Plaintiff and Vick's Motion to Quash.

         I. Background

         Plaintiff TQ Delta ("Plaintiff) and Defendants Pace PLC, 2 Wire, ZyXEL Communications, Inc. ZyXEL Communications Corporation and Adtran ("Defendants") are engaged in ongoing litigation within this District. (Nos. 13-cv-1835-RGA, 13-cv-2013-RGA, 14-cv-954-RGA, and 15-cv-121-RGA). On October 27, 2017, Defendants served four subpoenas in those actions on nonparty Jason H. Vick ("Vick") in the United States District Court for the District of Colorado. (D.I. 1, Ex 1.) The subpoenas were for deposition testimony and production of documents. (Id.). On November 10, 2017, Plaintiff and Vick filed a motion to quash Defendants' subpoenas and to transfer the motion to quash to the United States District Court for the District of Delaware, where the litigation is ongoing. (D.I. 1). On December 4, 2017, the Motion to Quash was transferred to this District. (D.I. 14).

         Vick is an attorney at Sheridan Ross, PC, a law firm in Denver, Colorado. (D.I. 3 ¶ 1). Vick and the Sheridan Ross law firm have represented Plaintiff and Plaintiffs predecessor-in-interest, Aware. (Id. ¶¶ 4-5). During these representations, Vick has prosecuted numerous patents for both Plaintiff and Aware, including the patents-in-suit. (Id.).

         II. Discussion

         "On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply, . .. (iii) requires disclosure of privileged or other protected matter ... or (iv) subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3). "The party seeking to quash the subpoena bears the burden of demonstrating that the requirements of Rule 45 are satisfied." Malibu Media, LLC v. John Does 1-15, 2012 WL 3089383, at *5 (E.D. Pa. 2012). "Courts have described this as a heavy burden." Id.

         Plaintiff and Vick assert that the Court should grant the motion to quash for the following reasons: (1) the vast majority of the documents and information requested are subject to attorney-client privilege; (2) any non-privileged relevant information that may be covered by the request can be obtained from more convenient sources; (3) compliance with the subpoenas will subject Vick to undue burden and (4) the subpoenas do not allow reasonable time to comply. (D.I. 1). Plaintiff and Vick further request that the Court sanction Defendants. (Id. at 14).

         Defendants argue that the motion should be denied because (1) Plaintiff lacks standing to challenge the subpoenas; (2) the requested discovery is relevant to the ongoing litigation; (3) the failure to provide a privilege log defeats the claim of attorney-client privilege; and (4) Plaintiff and Vick cannot show that every question asked at a deposition would be privileged. (D.I. 22). Defendants also assert that there are no grounds for sanctions. (Id. at 14).

         A. Plaintiff s Standing

         Defendants assert Plaintiff lacks standing to move to quash a nonparty subpoena. Plaintiffs standing is irrelevant. The motion to quash is made by both Plaintiff and Vick. (D.I. 1). As the nonparty to whom the subpoenas are directed, Vick clearly has standing to move to quash the subpoenas.

         B. Whether the Subpoenas Provided a Reasonable ...


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