United States District Court, W.D. Washington, Seattle
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.
ORDER ON PENDING MOTIONS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
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.
Defendants' Motion to Compel
Electronic Search Terms
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.
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.
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.
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.
Subpoenas Duces Tecum
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.
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 ...