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CEN Com Inc. v. Numerex Corp.

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

April 11, 2018

CEN COM INC., a Washington corporation d/b/a American Digital Monitoring, Plaintiff,
NUMEREX CORP., a Pennsylvania corporation; NEXTALARM, LLC, a Georgia limited liability corporation, and DOES 1-10, Defendants.




         This matter comes before the Court on Defendants' Motion to Compel (Dkt. #41) and Plaintiff's Motion for Sanctions and Order to Show Cause (Dkt. #59). Defendants' Second Motion to Compel (Dkt. #71) and Defendants' Motion to Dismiss (Dkt. #76) will be resolved by separate Orders. The Court has previously set forth the background to this matter and incorporates it by reference herein. See Dkt. #60 at 2-3. For the reasons set forth below, the Court resolves the motions as follows.


         A. Defendants' Motion to Compel

         1. Electronic Search Terms

         Defendants have filed a motion to compel Plaintiff to run certain electronic search terms and to compel certain third parties to respond to subpoenas duces tecum. Dkt. #41. Specifically, Defendants ask the Court to compel Plaintiff to run search terms related to a 2012 consent decree that Plaintiff entered into with Washington State's Attorney General (“AG”) to resolve a Consumer Protection Act claim that had been brought by the AG against Plaintiff, and to compel Ron Cats, Alex Elliot and Tom Reed to fully respond to subpoenas issued to them in their personal capacities. Id. Plaintiff objects to the search terms regarding the consent decree as irrelevant. Dkt. #51 at 6-7. Plaintiff objects to the subpoenas on the basis that they are burdensome and that they fail to comply with Federal Rule of Civil Procedure 45. Dkt. #51 at 8-12. For the following reasons, Defendants' motion will be GRANTED.

         Under Federal Rule of Civil Procedure 26(b)(1):

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         If requested discovery is not answered, the requesting party may move for an order compelling such discovery. Fed.R.Civ.P. 37(a)(1). “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Cable & Computer Tech., Inc. v. Lockheed Sanders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).

         With respect to the search terms requested by Defendants - “attorney w/2 general” and “consent w/2 decree” - the Court agrees with Defendants that these terms are relevant to Defendants' counterclaim. Plaintiff relies on the former standard under Rule 26 to argue that these terms are not reasonably calculated to lead to the discovery of admissible evidence. Dkt. #51 at 6. However, that is no longer the standard. Plaintiff does not assert that the terms are privileged or burdensome, or that the requested discovery is not proportional to the needs of the case. Accordingly, Plaintiff will be compelled to run these electronic search terms.

         2. Subpoenas Duces Tecum

         The Court next turns to the subpoenas issued to Mr. Cats, Mr. Elliot and Mr. Reed. Mr. Elliot and Mr. Reed are former employees of Defendant NextAlarm, who are now employees of Plaintiff. Mr. Cats is the founder/owner of Plaintiff. Mr. Cats objected to his subpoena on the basis that it was an improper attempt to obtain discovery from a party employee. Dkt. #42, Ex. G. Mr. Cats further objected that the subpoena is overbroad, unduly burdensome, and that the costs outweigh the potential for acquiring relevant information. Id. Mr. Elliot and Mr. Reed made the same objections. Dkt. #42, Exs. H and I. These individuals also asserted that any responsive documents would be contained in Plaintiff's electronic systems, and therefore would be searched in response to discovery requests to Plaintiff. Dkts. #42, Exs. G, H and I.

         Defendants now move to compel responses to the subpoenas, noting that they were issued to these individuals in their personal capacities, and therefore responsive documents could be contained on their personal computers, phones, etc., which would not be duplicative of the employer's documents. Dkt. #41 at 4-5. Defendants also note that these individuals have provided no specific information about the alleged burden and expense of complying with the subpoenas. Id. In response to the motion, Plaintiff argues that if these individuals are non- parties, then the subpoenas do not comply with Rule 45 because they request compliance at a location that is more than 100 miles from where they live and or work, and because they did not allow a ...

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