Domanski et al v. General Parts Distribution LLC
Filing
21
ORDER: 2 Motion to Quash is GRANTED IN PART and DENIED IN PART. by Magistrate Judge Boyd N. Boland on 3/18/13. (bnbcd, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00471-RBJ-BNB
KEN DOMANSKI,
RICHARD JONES,
JASON KIRBY,
SCOTT KLOBERDANZ,
MICHAEL MARSOLEK,
RICK MERCADO,
DAVID MORRISON,
VICTOR PFEFER,
VINCE SODERQUIST, and
ELLIOTT AUTO SUPPLY CO.,
Non-Party Movants,
v.
GENERAL PARTS DISTRIBUTION LLC d/b/a CARQUEST AUTO PARTS AND GENERAL
PARTS, INC.,
Respondent.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Non-Parties . . . Motion to Quash Deposition Subpoenas and for
Protective Order [Doc. # 2, filed 2/21/2013] (the “Motion to Quash”), which is GRANTED IN
PART and DENIED IN PART as specified.
There is an underlying action in the United States District Court for the Eastern District
of North Carolina in which General Parts has sued Jennison Perry, a former employee, for breach
of a contractual non-competition agreement, misappropriation of trade secrets, and tortious
interference with contractual relations and prospective business advantage. Mr. Perry now
works for a competitor of General Parts, Elliott Auto Supply (“EAS”), as a regional director of
store operations in the Denver, Colorado, area.
The parties are embroiled in discovery disputes in at least three forums--the Eastern
District of North Carolina, the District of Minnesota, and here. I am informed that discovery has
closed in the underlying action, but that the parties have or may seek to reopen discovery and
extend the discovery cut-off.
The issue before me concerns deposition subpoenas directed to Colorado employees of
EAS who are either Mr. Perry’s supervisors or subordinates. Depositions of the EAS employees
are sought concerning whether Mr. Perry is soliciting for EAS the same customers he serviced
for General Parts and/or improperly using General Parts’ trade secrets.
General Parts served notices of depositions on February 1, 2013, for the depositions of
the following third-party witnesses, all of whom are employees of EAS: Ken Domanski, Richard
Jones, Jason Kirby, Scott Kloberdanz, Michael Marsolek, Rick Mercado, David Morrison,
Victor Pfefer, and Vince Soderquist. Subpoenas commanding the attendance of the third party
witnesses were served only on Messrs. Kirby, Marsolek, Mercado, and Soderquist. Service on
Mr. Mercado was made less than 48 hours before the deposition was to occur. No service was
made, or the service was ineffective, on the remaining third-party witnesses.1
The third-party witnesses seek an order quashing the subpoenas and for a protective order
arguing that they did not receive notice of the depositions within the time required by
D.C.COLO.LCivP 30.1,which states:
1
In two instances the subpoenas purportedly were served by posting them on a door, and
in a third instance service was purportedly accomplished by serving the witness’ wife. Rule
45(b)(1), Fed. R. Civ. P., requires personal service on the witness, however, as follows:
“Serving a subpoena requires delivering a copy to the named person. . . .”
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A. Reasonable Notice; Scheduling. Unless otherwise ordered by
the court, “reasonable notice” for the taking of depositions shall be
not less than 14 days, as computed under Fed. R. Civ. P. 6. Before
sending a notice to take a deposition, counsel or the pro se party
seeking the deposition shall make a good faith effort to schedule it
be agreement at a time reasonably convenient and economically
efficient to the proposed deponent, all counsel of record, and pro se
parties.
Notices of deposition are served on counsel for parties. See Fed. R. Civ. P. 30(b)(1)
(requiring that “[a] party who wants to depose a person by oral questions must give reasonable
written notice to every other party”). They are not required to be served on third-party
witnesses. That is the function of a subpoena under Fed. R. Civ. P. 45. Rule 45 does not specify
the amount of time in advance of appearance a subpoena must be served, but our local rule of
practice, D.C.COLO.LCivR 45.1, does. It provides:
Unless otherwise ordered by the court, a subpoena shall be served
at least 48 hours before the time for appearance set in the
subpoena. The 48 hours shall be calculated in accordance with
Fed. R. Civ. P. 6(a)(2).
The facts are undisputed. All notices were served on counsel for the parties more than 14
days in advance of the depositions, but effective subpoenas were served 48 hours or more in
advance of the depositions only on Messrs. Kirby, Marsolek, and Soderquist. Consequently, the
Motion to Quash is granted with respect to the remaining third-party witnesses due to General
Parts’ failure to comply with the service requirement of D.C.COLO.LCivR 45.1.
The third-party witnesses also argue that the discovery is unduly burdensome because
they are commissioned sales people and the appearance at a deposition is estimated to cost each
of them $300 to $350 per day. The Federal Rules of Civil Procedure recognize that appearing
for a deposition may impose a financial burden on a witness, and mitigate that burden by
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requiring the payment to the witness of a mileage and daily witness fee stipend. See Fed. R.
Civ. P. 45(b)(1).
Here, I find that the testimony sought from the third-party witnesses is relevant to
General Parts’ claims in the underlying action or reasonably calculated to lead to the discovery
of admissible evidence. Attendance of the witnesses for their depositions, expected to last
approximately two hours each, poses no special burden on the witnesses and is adequately
addressed by the payment of the required travel allowance and witness fees.
I am informed that discovery has closed under the scheduling order entered by the district
court in the Eastern District of North Carolina. The depositions allowed here may proceed only
to the extent that they are not prohibited by that court.
IT IS ORDERED that the Motion to Quash [Doc. # 2] is GRANTED IN PART and
DENIED IN PART as follows:
(1)
GRANTED with respect to Messrs. Domanski, Jones, Kloberdanz, Mercado,
Morrison, and Pfefer. As to them, the discovery shall not be had unless notice is properly given,
subpoenas are timely served, and the discovery is not prohibited by the Eastern District of North
Carolina; and
(2)
DENIED with respect to Messrs. Kirby, Marsolek, and Soderquist, who shall
appear and testify in accordance with the commands of the subpoenas at a date and time as may
reasonably be agreed, provided the discovery is not prohibited by orders of the United States
District Court for the Eastern District of North Carolina.
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Dated March 18, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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