United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO COMPEL
L. ROBART, UNITED STATES DISTRICT JUDGE
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,  the court DENIES
InfoDeli's motion to compel for the reasons set forth
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.)
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.
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. (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. (Rosemergy Decl.
¶ 9, Ex. 5 (“Obj.”).)
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.)
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
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.
[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