United States District Court, W.D. Washington, Seattle
ORDER DIRECTING SUPPLEMENTAL BRIEFING
L. ROBART United States District Judge
the court is Plaintiff InfoDeli, LLC's motion to compel
Defendant Amazon Web Services, Inc.'s
(“Amazon”) to comply with a subpoena. (Mot. (Dkt.
# 2).) For the reasons set forth below, the court orders
supplemental briefing from the parties.
BACKGROUND & ANALYSIS
Events Leading to the Instant Motion
motion arises from a copyright infringement action currently
pending before the United States District Court for the
Western District of Missouri (“the Underlying
Action”). (See Mot. at 1; Rosemergy Decl.
(Dkt. # 3) ¶ 1); InfoDeli, LLC, et al. v. W.
Robidoux, Inc., et al., No. C15-364BCW (W.D. Mo.), Dkt.
# 1. In the Underlying Action, InfoDeli alleges that the
defendants have misappropriated computer code that InfoDeli
wrote. (See Mot. at 2.) InfoDeli further alleges
that one of the defendants-Engage Mobile Solutions, LLC
(“Engage”)-“permanently stored archival
versions of code, including infringing code, ” on
Amazon's servers. (Id.)
obtain the allegedly infringing code, InfoDeli served
non-party Amazon with a subpoena to produce the archival data
Engage allegedly stored on Amazon's
servers.(See Id. at 1-2; Rosemergy Decl.
¶ 5, Ex. 2 (Dkt. # 3-1) (“Subpoena”).) The
subpoena directed Amazon to produce responsive material no
later than September 14, 2016. (Rosemergy Decl. ¶ 6;
Subpoena at 7.) On September 19, 2016, Amazon served
objections to the subpoena. (Rosemergy Decl. ¶ 9, Ex. 5
Amazon objected, the parties met and conferred several times
between October 2016 and December 2016 in an attempt to
effectuate InfoDeli's requests. (See Mot. at 3;
Rosemergy Decl. ¶ 10.) Nevertheless, on December 16,
2016, Amazon advised InfoDeli that Amazon “intended to
stand on its objections to the subpoena” and
“would not be complying with the subpoena.” (Mot.
at 3; Rosemergy Decl. ¶ 10.) InfoDeli filed its motion
to compel on February 21, 2017. (See generally Dkt.)
response, Amazon asserts that InfoDeli's motion to compel
is untimely. (Resp. (Dkt. # 13) at 4-7; Mot. at 1
(filing motion to compel on February 21, 2017); see also
InfoDeli v. W. Robidoux, Dkt. # 378 at 1 (setting
discovery deadline of February 20, 2017). Courts generally
deny as untimely motions to compel filed after the close of
discovery unless the court's scheduling order sets a
different date. See, e.g., Short v. Equifax
Info. Servs. LLC, No. 3:14-CV-0471-YY, 2016 WL 6683563,
at *3 (D. Or. Nov. 14, 2016); Voter v. Avera Brookings
Med. Clinic, No. Civ. 06-4129-KES, 2008 WL 4372707, at
*1 (D.S.D. Sept. 22, 2008) (collecting cases); David v.
Signal Int'l, LLC, No. 08-1220, 2014 WL 6612598, at
*2 (E.D. La. Nov. 19, 2014) (same). In considering whether to
allow an untimely motion to compel, courts consider the
following factors: (1) how long after the discovery deadline
the moving party filed its motion to compel; (2) the amount
of time the moving party knew about the discovery; (3)
whether the court has previously extended the discovery
deadline; (4) the moving party's reason for its delay or
tardiness; (5) whether dispositive motions have been filed or
scheduled; (6) the age of the case; (7) any prejudice to the
party from whom the moving party seeks untimely discovery;
and (8) whether the untimely motion disrupts the court's
schedule. See Short, // 2016 WL 6683563, at *3;
David, 2014 WL 6612598, at *3; Days Inn
Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 398
(N.D. Tex. 2006).
Underlying Action, the Honorable Brian C. Wimes stayed
discovery on all matters unrelated to InfoDeli's
copyright infringement claim. InfoDeli v. W.
Robidoux, Dkt. # 141 at 5-6 (granting the
defendants' motion for “a stay of discovery of all
issues that are unrelated to their liability under Count I,
for copyright infringement”). Accordingly, Judge
Wimes's scheduling orders allowed the parties to conduct
discovery related only to InfoDeli's copyright
infringement claim. See id., Dkt. ## 49, 151, 206,
281, 297, 327, 378 (scheduling orders). After extending the
initial discovery cut-off six times, Judge Wimes issued his
final scheduling order related to the copyright infringement
phase of the case and ordered that discovery be completed no
later than February 20, 2017. Id., Dkt. # 378 at 1.
InfoDeli contends in its reply brief that its February 21,
2017, motion is “not untimely because the discovery at
issue is not solely related to the issue of
infringement.” (Reply at 8.) InfoDeli also states that
the discovery it seeks from Amazon is “relevant to
willfulness [and] spoliation” and “was also
identified in a Rule 56(d) [d]eclaration as being necessary
to respond to a currently pending [m]otion for [s]ummary
[j]udgment.” (Id.) Further, although InfoDeli
does not advance this argument in its briefing, Amazon
provides an email from InfoDeli's counsel in which
InfoDeli contends that it filed its motion to compel one day
late because February 20, 2017, fell on a federal
holiday-President's Day. (Wigginton Decl. (Dkt. # 16)
¶ 12, Ex. S.)
filed its motion to compel one day after the close of
discovery, even though Judge Wimes's scheduling order set
a date certain-February 20, 2017-for the close of discovery.
(See Mot. at 1); cf. Sloan v. Country Preferred
Ins. Co., No. 2:12-CV-01085-KJD-PAL, 2013 WL 1405852, at
*1 (D. Nev. Apr. 4, 2013) (“When the Court specifies a
date for a response, the response is not untimely when it is
filed on or before that date.”). Further, it does not
appear that Judge Wimes has lifted the stay on discovery of
any of InfoDeli's non-copyright infringement claims.
See InfoDeli v. W. Robidoux, Dkt. # 141 at 5-6;
id., Dkt. # 358. In addition, there is no indication
that Judge Wimes has yet ruled on InfoDeli's Rule 56(d)
request or otherwise allowed additional discovery. See
id., Dkt. # 417-3; see also Fed. R. Civ. P.
56(d)(2) (“If a nonmovant shows by affidavit [that] it
cannot present facts essential to justify its opposition, the
court may . . . allow time to obtain affidavits or
declarations or to take discovery . . . .”). Therefore,
based on the docket in the Underlying Action, it appears that
InfoDeli has filed an untimely motion to compel or attempted
to engage in discovery of matters subject to the stay.