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InfoDeli, LLC v. Amazon Web Services, Inc.

United States District Court, W.D. Washington, Seattle

April 21, 2017

INFODELI, LLC, Plaintiff,




         Before the court is Plaintiff InfoDeli, LLC's motion to compel compliance with a subpoena duces tecum. (Mot. (Dkt. # 2); see also Pet. (Dkt. # 1).) Defendant Amazon Web Services, Inc. (“Amazon”) opposes the motion. (Resp. (Dkt. # 13); see also Answer (Dkt. # 12).) The court has considered the motion, Amazon's opposition to the motion (Resp. (Dkt. # 13)), InfoDeli's reply in support of its motion (Reply (Dkt. # 21)), the parties' supplemental briefing (Amazon Supp. (Dkt. # 27); InfoDeli Supp. (Dkt. # 28)), the relevant portions of the record, and the applicable law. Being fully advised, [1] the court DENIES InfoDeli's motion to compel for the reasons set forth below.


         A. The Underlying Action

         InfoDeli's 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 v. W. Robidoux, Inc., 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.)

         In the 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 cutoff at the parties' request, 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.

         B. InfoDeli's Subpoena

         To obtain Engage's allegedly infringing code, InfoDeli served Amazon, who is not a party to the Underlying Action, with a subpoena to produce the archival data Engage allegedly stored on Amazon's servers.[2] (See Mot. 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.[3] (Rosemergy Decl. ¶ 9, Ex. 5 (“Obj.”).)

         After Amazon objected, the parties met and conferred several times between October 2016 and December 2016 and attempted to compromise on 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.) On April 11, 2017, the court ordered the parties to file supplemental briefing addressing the timeliness of InfoDeli's motion. (4/11/17 Order (Dkt. # 25) at 5-6.) The court now analyzes that issue and InfoDeli's motion.


         The parties first dispute whether InfoDeli's motion to compel is timely and if not, whether the court should nonetheless consider the motion. (Resp. at 4-7; Mot. at 1 (filing motion to compel on February 21, 2017); Reply); see also InfoDeli v. W. Robidoux, Dkt. # 378 at 1 (setting discovery deadline of February 20, 2017). After analyzing the issue, the court concludes that InfoDeli's motion is untimely and declines to consider it.[4]

         A. Legal Standard

         “A [third-party] subpoena pursuant to Federal Rule of Civil Procedure 45 . . . is not exempt from discovery deadlines in scheduling orders.” See Dell Inc. v. Acacia Res. Grp. LLC, No. SA MC 15-00025-JVS (DFMx), 2015 WL 12791389, at *1 (C.D. Cal. Oct. 26, 2015) (quoting Dag Enters., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 104 (D.D.C. 2005)). 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); Rogers v. Brauer Law Offices, PLC, No. CV-10-1693-PHX-LOA, 2011 WL 3665346, at *4 (D. Ariz. Aug. 22, 2011) (collecting cases); Voter v. Avera Brookings Med. Clinic, No. Civ. 06-4129-KES, 2008 WL 4372707, at *1 (D.S.D. Sept. 22, 2008) (same); David v. Signal Int'l, LLC, No. 08-1220, 2014 WL 6612598, at *2 (E.D. La. Nov. 19, 2014) (same). Courts determine whether to allow an otherwise untimely motion to compel by considering and balancing 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 ...

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