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Magistrate Judge Thynge considers motion to quash subpoena

In Verisign, Inc. v. XYZ.com, LLC, et al., C.A. No. 15-mc-175-RGA-MPT (D. Del. Dec. 4, 2015), Chief Magistrate Judge Mary Pat Thynge considered a motion to quash subpoenas. The plaintiff in a false advertising action in the Eastern District of Virginia had served subpoenas on two non-parties, requesting documents related to the sale of a top-level domain name to defendants, agreements and communications related to this domain name and the plaintiff, and communications referencing other domain names. See id. at 3 (listing requested categories of documents).

The Court first found that defendants did have standing to challenge the subpoena, where the non-parties had not objected to the subpoena, explaining that while “[c]ourts have held that parties . . . do not have standing to a subpoena if they are not the target of the subpoena . . . other courts have found that parties who claim privilege or a personal right in the subpoenaed information from a nonparty have standing to object.” Id. at 4-5. Here, defendants alleged that the subpoenas requested “documents between defendants and KBE, who has worked closely with defendants on business transactions, and require the nonparties to disclose confidential information and trade secrets. These representations demonstrate sufficient interest in the requested documents to determine defendants’ standing.” Id. at 5.

The Court also concluded that plaintiff had not provided a reasonable time for response to the subpoenas. Although the non-parties had agreed to a short production turnaround period (five days from service), “the time allotted for compliance was unreasonable and effectively gave defendants one business day [due to holidays] and a total of five days to seek protection of documents, in which they had a sufficient interest.” Id. at 6.

Ultimately, the Court did order production of the subpoenaed documents over defendants’ objections that the requested information was irrelevant to the case in Virginia, that the documents could have been sought through defendants, and that the subpoenas requested proprietary information from whose production defendants would suffer irreparable harm. The Court did observe that it “question[ed] plaintiff’s need to subpoena [certain requested categories] when production of these documents was potentially obtainable from defendants. If any issue arose regarding such production, it then could have been addressed by the court having more familiarity with the underlying matter. To address defendants’ concerns, however, production of the above categories is ordered under the ‘Attorney’s Eyes Only’ designation provided for in the protective order [in the underlying action]. [However], as [one category of] requested documents, the court [found] there was no evidence that these documents contain trade secrets or confidential information of defendants.”  Id. at 11.

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