In a recent Memorandum Opinion, Judge Richard G. Andrews refused to quash a subpoena served on a nonparty law firm that was previously involved in the prosecution of the “parent application” of the patent-in-suit. Robocast, Inc. v. Microsoft Corp., C.A. No. 13-mc-104-RGA , at 1 (D. Del. Apr. 12, 2013). Defendant subpoenaed the firm to testify at a deposition by telephone and to produce documents. Id.
The law firm argued that “the subpoena fails to allow a reasonable time for compliance” where the law firm had nine days to produce documents and provide deposition testimony. Id. at 2. The Court noted that “[n]either Rule 45 nor the Third Circuit . . . have provided a firm rule regarding the number of days that constitute a reasonable time.” Id. The Court concluded that the law firm had not met its burden for quashing the subpoena by merely the “bare assertion” that nine days was an unreasonable time for compliance. Id.
The law firm also argued that the subpoena was unduly burdensome and oppressive because it “subpoena[ed] documents in Delaware while compelling testimony in Pennsylvania,” albeit via telephone, and the information defendant sought was mostly publicly available. Id. The Court did not find either argument persuasive. Id.
Lastly, the law firm claimed that the subpoena sought privileged information. Id. at 3. The Court explained that the firm “will be able to raise the privilege at the time of the deposition and the production of documents,” but “[a] blanket assertion of privilege . . . does not meet the burden of Rule 45(c)(3)(A)(iii).” Id. Therefore the Court would not quash the subpoena on grounds of privilege. Id.
In a footnote, the Court observed that it “is also mindful that inequitable conduct allegations are in the case . . . factual non-privileged information from [this nonparty] witness . . . whose reliability is not reasonably subject to dispute could be very relevant.” Id. at 3 n.3.