Alternative Petroleum Technologies Holdings Corp et al v. Grimes, No. 3:2020cv00040 - Document 47 (D. Nev. 2021)
Court Description: ORDER granting 46 defendants' motion for authorization to issue evidence preservation subpoena. Signed by Magistrate Judge Carla Baldwin on 5/6/2021. (Copies have been distributed pursuant to the NEF - DN)
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Alternative Petroleum Technologies Holdings Corp et al v. Grimes Doc. 47 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 1 of 8 1 2 3 CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 4 7 DANIEL S. BRETZIUS, ESQ. – PRO HAC VICE Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 8 Attorneys for Defendant Patrick Grimes 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 11 12 13 ALTERNATIVE PETROLEUM TECHNOLOGIES HOLDINGS, CORP. and ALTERNATIVE PETROLEUM TECHNOLOGIES, INC., Case Number Plaintiffs, 14 15 vs. 16 3:20-cv-00040-MMD-CLB Defendant’s Emergency Motion for Authorization to Issue Evidence Preservation Subpoena PATRICK GRIMES, 17 18 Defendant. _______________________________ ________________________________________________________________________ 19 20 21 DEFENDANT’S EMERGENCY MOTION FOR AUTHORIZATION TO ISSUE EVIDENCE PRESERVATION SUBPOENA ________________________________________________________________________ Pursuant to LR 7-4, Defendant Patrick Grimes hereby moves for authorization to 22 issue an evidence preservation subpoena on PS Orange Co. Inc. d/b/a Public Storage 23 (“Public Storage”) and states as follows: 1 Dockets.Justia.com Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 2 of 8 1 INTRODUCTION 2 Jack Waldron and Defendant Patrick Grimes are listed as co-inventors on five 3 United States patents. In 2019, Jack Waldron alleged to Plaintiffs that Defendant Grimes 4 was improperly listed on the five patents. In turn, Plaintiffs allege that they own the patents- 5 in-suit and commenced this action to attempt to remove Defendant Grimes from the listed 6 inventors on the five patents-in-suit. 7 BACKGROUND 8 Defendant has conducted depositions of Plaintiffs’ Fed. R. Civ. P. 30(b)(6) witness 9 and Jack Waldron. Plaintiffs have indicated that they have done nothing to investigate the 10 11 12 allegations made by Mr. Waldron. (ECF No. 36-8, 30(b)(6) Dep., 42:25-43:4): “Q. Did plaintiffs do anything to investigate the claims made by Mr. Waldron that there was improper inventorship? A. Not that I’m aware of. We believe what Jack said.” 13 During Mr. Grimes’ employment, he maintained files in his office that are relevant 14 to this action, including three-ring binders that had relevant patent and research documents 15 in them. (ECF No. 36-16, Waldron Dep., 71:23) (“There were three-ring binders in his 16 office.”). Plaintiffs have neither attempted to locate nor produced any of Mr. Grimes’ three- 17 ring binders or office files. (ECF No. 36-8, 30(b)(6) Dep., 50:13-19): 18 19 20 “Q. Did plaintiffs make any efforts to locate the three-ring binders that Mr. Grimes is alleging to have maintained? A. Jack Waldron wound up taking the office that Patrick once had. And he’s been running the company since Patrick left. And I don’t know whether he found any or not.” 21 On February 23, 2021, Jack Waldron indicated that items previously located in Mr. 22 Grimes’ office, which included the three ring binders and other documentation related to 23 the five patents-in-suit, were moved to a storage unit, with their final disposition was 2 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 3 of 8 1 2 3 4 unknown. (ECF No. 36-16, Waldron Dep., 64:12-18): “Q. And where were the items moved to? A. They were moved to a storage facility on Valley Road. Q. Are they still there? A. No. Valley Road facility has been closed. They probably ended up being disposed of somewhere around two years after [Mr. Grimes] left.” 5 On February 23, 2021, Jack Waldron additionally indicated that his personal lab 6 notebooks were “stashed in my storage in a fire-proof lockup”. (Id., 70:4-5). 7 The Storage Unit 8 Defendant has become aware that Jack Waldron rented a Storage Unit on behalf of 9 Plaintiff Alternative Petroleum Technologies Inc. until late 2020, when the rent due 10 became in arrears. (Exhibit 2, Declaration of Carl Hebert (“Hebert Dec.”) at ¶¶ 3-5). The 11 Storage Unit is owned by Public Storage and is identified as Unit #A161, located at Public 12 Storage #24535, 200 Telegraph Street, Reno, NV 89502. (Id. at ¶ 3). The Storage Unit 13 measures approximately 12 feet by 20 feet. (Id. at ¶ 4). The Storage Unit is believed to 14 contain the remainder of Plaintiffs’ three-ring binders and office files, Jack Waldron’s 15 notebooks, missing invention disclosure forms, a computer server with back-up e-mail 16 correspondence, and other evidence and documentation relevant to this action. 17 On May 4, 2021, Defendant learned that the contents of the Storage Unit have been 18 marked for destruction at any moment. (Id. at ¶ 7). Defendant also learned that: [i] the rent 19 has been in arrears since at least as early as late 2020) (Id.); [ii] the contents were advertised 20 for sale on February 25, 2021 and March 25, 2021, but luckily were not sold (Id.) & 21 (Exhibit 3, Notices of Public Sale); [iii] the account related to the Storage Unit has been 22 terminated and closed (Exhibit 2, Hebert Dec. at ¶ 5); and [iv] the contents of the Storage 23 3 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 4 of 8 1 Unit have not been destroyed since April 5, 2021 solely due to luck that the destruction 2 company has not yet arrived to the Storage Unit. (Exhibit 2, Hebert Dec. at ¶ 7). 3 Defendant promptly sent a written preservation request to Public Storage, asking 4 Public Storage to preserve the contents of the Storage Unit. (Id. at ¶ 8) & (Exhibit 4, Written 5 Request to Public Storage). Public Storage is not a party to this litigation and does not have 6 an obligation to comply with LR 7-4(a)(3)’s meet and confer requirements. Additionally, 7 as a non-party, Public Storage is under no obligation to preserve the contents of the Storage 8 Unit without a court order. 9 Accordingly, with the understanding that emergency motions should be rare, 10 Defendant seeks an order from this Court permitting Defendant to serve a document 11 preservation subpoena (proposed as Exhibit 5) on non-party PS Orange Co. Inc. (“Public 12 Storage”), to protect critical evidence that was hidden by Plaintiffs, transferred to Public 13 Storage, and is currently marked for destruction at any moment. This subpoena, which 14 requires only the preservation of evidence and not actual production at this time, will place 15 little to no burden on Public Storage, and may even save Public Storage the cost of 16 destruction services. Without leave to serve this subpoena, critical evidence will be forever 17 lost, causing obvious and severe prejudice to Defendant and preventing justice from being 18 served. 19 ARGUMENT 20 A party must preserve evidence it knows or should know is relevant to a claim or 21 defense of any party, or that may lead to the discovery of relevant evidence. United States 22 v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). However, the same 23 obligation to preserve does not apply to non-parties. Plaintiffs violated their obligation to 4 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 5 of 8 1 preserve and produce the contents of the Storage Unit and are no longer permitted to access 2 the Storage Unit. The new custodian of the contents, Public Storage, is a non-party to this 3 litigation and therefore under no obligation to preserve the contents of the Storage Unit. 4 Public Storage is currently intending to destroy the contents of the Storage Unit. Without 5 a court order, Public Storage will destroy information relevant to this action. 6 Before a preservation order is issued, the movant must show that there is a 7 significant concern that potentially relevant evidence will be destroyed, thereby causing 8 harm to the movant. CenturyLink, Inc. v. Alpine Audio Now, LLC, 2016 WL 192291 at 9 *1 (D. Colo. Jan. 15, 2016). In this case, Public Storage has taken custody of the contents 10 of the Storage Unit since late 2020, has advertised them for sale in February and March 11 2021, and has marked the contents for destruction since April 5, 2021. Destruction of the 12 contents of the Storage Unit would cause prejudice to Defendant, who has already been 13 prejudiced by Plaintiffs’ non-preservation and non-production. Saving the contents of the 14 Storage Unit from destruction is the only way that the prejudice can possibly be mitigated. 15 "A party alleging that discovery is ‘necessary to preserve evidence’ must ... make 16 a specific showing that the ‘loss of evidence is imminent as opposed to merely 17 speculative.’” In re Vivendi Universal, S.A., Securities Litigation, 381 F.Supp.2d 129, 130 18 (S.D. N.Y. 2003). Here, co-counsel for Defendant visited Public Storage #24535, located 19 at 200 Telegraph Street, Reno, NV 89502, and learned that Unit A161 has been marked for 20 destruction and will be destroyed at any moment. Thus, loss of evidence is imminent. 21 Compare to M.S. v. Hyundai Motor America, No. 2:20-cv-01861-GMN-BNW (D. Nev. 22 Feb. 16, 2021) (“the court finds that, absent a preservation order, there is a significant 23 possibility that Fast Towing may not "maintain the integrity of the evidence in question," 5 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 6 of 8 1 since it is not a party to the underlying action, has no duty to do so, and has already 2 communicated an intent to ‘crush’ it.”) Therefore, good cause exists for issuance of the 3 document preservation subpoena to non-party Public Storage. Compare to Prescott v. Slide 4 Fire Solutions, LP, No. 2:18-cv-00296-GMN-CWH, Doc. 39 (D. Nev. Jan. 31, 2019) 5 (granting authority to issue preservation subpoena regarding firearm attachments in 6 custody of non-party); Tesla, Inc. v. Tripp, No. 3:18-cv-00296-MMD-CLB, Doc. No. 12 7 (D Nev. June 27, 2018) (granting authority to issue preservation subpoenas regarding non- 8 party cloud storage and e-mail). 9 The court has the inherent authority to order a non-party to preserve evidence, 10 provided it does so with restraint and discretion. Bright Solutions for Dyslexia, Inc. v. Doe, 11 2015 WL 5159125, at *2 (N.D. Cal. Sept. 2, 2015); accord, Arkin v. Gracey-Danna, Inc., 12 2016 WL 3959611, at *1 (M.D. Fla. July 22, 2016); Deggs v. Fives Bronx, Inc., 2020 WL 13 3100023, at *2 (M.D. La. June 11, 2020). There will be no undue burden to Public Storage 14 from compliance with the document preservation subpoena. The proposed subpoena 15 (Exhibit 5) is narrowly tailored to require only preservation of the contents of the Storage 16 Unit. Non-party Public Storage will not be required at this time to produce anything, 17 although, if it ultimately is required to provide access or convey custody of the Contents to 18 Defendant, Public Storage will save on destruction fees that would otherwise be required. 19 Thus, the subpoena ensures the critical evidence, documents, and other contents are 20 preserved, with minimal inconvenience to Public Storage (and possibly even some future 21 benefit). 22 23 6 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 7 of 8 CONCLUSION 1 2 For the foregoing reasons, good cause exists for the Court to authorize Defendant 3 to issue a document preservation subpoena to Public Storage, requiring Public Storage to 4 preserve the contents of Unit #A161, located at Public Storage #24535, 200 Telegraph 5 Street, Reno, NV 89502. 6 7 Dated this 6th day of May, 2021. /s/ Carl M. Hebert CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 8 9 10 11 /s/ Daniel S. Bretzius Daniel S. Bretzius, pro hac vice Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 12 13 14 15 Attorneys for Defendant Patrick Grimes 16 17 18 IT IS SO ORDERED: 19 20 6th Dated this _______ day of May 2021. __________________________ United States Magistrate Judge 21 22 23 7 Case 3:20-cv-00040-MMD-CLB Document 46 Filed 05/06/21 Page 8 of 8 1 2 CERTIFICATE OF SERVICE Pursuant to LR 5-1, the undersigned certifies that, on May 6, 2021, I served the 3 attached Emergency Motion for Authorization to Issue Evidence Preservation Subpoena 4 via ECF to counsel of record for Plaintiffs: 5 6 7 Jason M. Wiley, Esq. & Ryan S. Petersen, Esq. Wiley Petersen 1050 Indigo Drive, Suite 130 Las Vegas, Nevada 89145 jwiley@wileypetersenlaw.com rpetersen@wileypetersenlaw.com 8 9 10 Jovan N. Jovanovic, Esq. The Watson IP Group, PLC 3133 Highland Drive, Suite 200 Hudsonville, MI 49426 jjovanovic@watson-ip.com 11 12 Dated this 6th day of May, 2021 /s/ Daniel S. Bretzius Daniel S. Bretzius Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 13 14 15 16 Attorney for Defendant Patrick Grimes 17 18 19 20 21 22 23 8 Case 3:20-cv-00040-MMD-CLB Document 46-1 Filed 05/06/21 Page 1 of 2 1 2 3 CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 4 7 DANIEL S. BRETZIUS, ESQ. – PRO HAC VICE Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 8 Attorneys for Defendant Patrick Grimes 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 11 12 13 ALTERNATIVE PETROLEUM TECHNOLOGIES HOLDINGS, CORP. and ALTERNATIVE PETROLEUM TECHNOLOGIES, INC., Case Number Plaintiffs, 14 15 vs. 16 3:20-cv-00040-MMD-CLB Exhibits to Defendant’s Emergency Motion for Authorization to Issue Evidence Preservation Subpoena PATRICK GRIMES, 17 18 Defendant. _______________________________ ________________________________________________________________________ 19 20 21 EXHIBIT 1 INDEX OF EXHIBITS ________________________________________________________________________ 22 23 1 Case 3:20-cv-00040-MMD-CLB Document 46-1 Filed 05/06/21 Page 2 of 2 1 Exhibit 1 – Index of Exhibits 2 Exhibit 2 – Declaration of Carl M. Hebert 3 Exhibit 3 – Notices of Public Sale, February and March 2021 4 Exhibit 4 – Preservation Letter to Public Storage 5 Exhibit 5 – Proposed Subpoena to Public Storage 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 Case 3:20-cv-00040-MMD-CLB Document 46-2 Filed 05/06/21 Page 1 of 3 1 2 3 CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 4 7 DANIEL S. BRETZIUS, ESQ. – PRO HAC VICE Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 8 Attorneys for Defendant Patrick Grimes 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 11 12 13 ALTERNATIVE PETROLEUM TECHNOLOGIES HOLDINGS, CORP. and ALTERNATIVE PETROLEUM TECHNOLOGIES, INC., Case Number Plaintiffs, 14 15 vs. 16 3:20-cv-00040-MMD-CLB Exhibits to Defendant’s Emergency Motion for Authorization to Issue Evidence Preservation Subpoena PATRICK GRIMES, 17 18 Defendant. _______________________________ ________________________________________________________________________ 19 20 21 EXHIBIT 2 DECLARATION OF CARL M. HEBERT ________________________________________________________________________ 22 23 1 Case 3:20-cv-00040-MMD-CLB Document 46-2 Filed 05/06/21 Page 2 of 3 Case 3:20-cv-00040-MMD-CLB Document 46-2 Filed 05/06/21 Page 3 of 3 Case 3:20-cv-00040-MMD-CLB Document 46-3 Filed 05/06/21 Page 1 of 3 1 2 3 CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 4 7 DANIEL S. BRETZIUS, ESQ. – PRO HAC VICE Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 8 Attorneys for Defendant Patrick Grimes 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 11 12 13 ALTERNATIVE PETROLEUM TECHNOLOGIES HOLDINGS, CORP. and ALTERNATIVE PETROLEUM TECHNOLOGIES, INC., Case Number Plaintiffs, 14 15 vs. 16 3:20-cv-00040-MMD-CLB Exhibits to Defendant’s Emergency Motion for Authorization to Issue Evidence Preservation Subpoena PATRICK GRIMES, 17 18 Defendant. _______________________________ ________________________________________________________________________ 19 20 21 EXHIBIT 3 NOTICES OF PUBLIC SALE – FEBRUARY AND MARCH 2021 ________________________________________________________________________ 22 23 1 Case 3:20-cv-00040-MMD-CLB Document 46-3 Filed 05/06/21 Page 2 of 3 2 Case 3:20-cv-00040-MMD-CLB Document 46-3 Filed 05/06/21 Page 3 of 3 3 Case 3:20-cv-00040-MMD-CLB Document 46-4 Filed 05/06/21 Page 1 of 3 1 2 3 CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 4 7 DANIEL S. BRETZIUS, ESQ. – PRO HAC VICE Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 8 Attorneys for Defendant Patrick Grimes 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 11 12 13 ALTERNATIVE PETROLEUM TECHNOLOGIES HOLDINGS, CORP. and ALTERNATIVE PETROLEUM TECHNOLOGIES, INC., Case Number Plaintiffs, 14 15 vs. 16 3:20-cv-00040-MMD-CLB Exhibits to Defendant’s Emergency Motion for Authorization to Issue Evidence Preservation Subpoena PATRICK GRIMES, 17 18 Defendant. _______________________________ ________________________________________________________________________ 19 20 21 EXHIBIT 4 PRESERVATION LETTER TO PUBLIC STORAGE ________________________________________________________________________ 22 23 1 Case 3:20-cv-00040-MMD-CLB Document 46-4 Filed 05/06/21 Page 2 of 3 Case 3:20-cv-00040-MMD-CLB Document 46-4 Filed 05/06/21 Page 3 of 3 Case 3:20-cv-00040-MMD-CLB Document 46-5 Filed 05/06/21 Page 1 of 4 1 2 3 CARL M. HEBERT, ESQ. Nevada Bar #250 2215 Stone View Drive Sparks, NV 89436 (775) 323-5556 carl@cmhebertlaw.com 4 7 DANIEL S. BRETZIUS, ESQ. – PRO HAC VICE Dan B Law PLLC 75 South Main Street, #272 Concord, NH 03301 (603) 731-2507 dan@danblaw.com 8 Attorneys for Defendant Patrick Grimes 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 11 12 13 ALTERNATIVE PETROLEUM TECHNOLOGIES HOLDINGS, CORP. and ALTERNATIVE PETROLEUM TECHNOLOGIES, INC., Case Number Plaintiffs, 14 15 vs. 16 3:20-cv-00040-MMD-CLB Exhibits to Defendant’s Emergency Motion for Authorization to Issue Evidence Preservation Subpoena PATRICK GRIMES, 17 18 Defendant. _______________________________ ________________________________________________________________________ 19 20 21 EXHIBIT 5 PROPOSED SUBPOENA TO PUBLIC STORAGE ________________________________________________________________________ 22 23 1 Case 3:20-cv-00040-MMD-CLB Document 46-5 Filed 05/06/21 Page 2 of 4 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the District of Nevada __________ District of __________ Alternative Petroleum Technologies Holdings Corp. Plaintiff v. Patrick Grimes Defendant ) ) ) ) ) ) Civil Action No. SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION PS Orange Co. Inc. d/b/a Public Storage To: (Name of person to whom this subpoena is directed) u Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material: Place: Date and Time: u PrHVHUYDWLRQ: YOU ARE COMMANDED to SUHVHUYH DOO GRFXPHQWV HYLGHQFH DQG RU FRQWHQWV ORFDWHG DW 9 8QLW $ ORFDWHG DW 3XEOLF 6WRUDJH 7HOHJUDSK 6WUHHW 5HQR 19 u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Place: Date and Time: The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: CLERK OF COURT OR Signature of Clerk or Deputy Clerk Attorney’s signature The name, address, e-mail address, and telephone number of the attorney representing (name of party) , who issues or requests this subpoena, are: 'HIHQGDQW 3DWULFN *ULPHV &DUO +HEHUW 6WRQH 9LHZ 'ULYH 6SDUNV 19 FDUO#FPKHEHUWODZ FRP Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4). Case 3:20-cv-00040-MMD-CLB Document 46-5 Filed 05/06/21 Page 3 of 4 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. 3:20-cv-00040-MMD-CLB PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) I received this subpoena for (name of individual and title, if any) on (date) . u I served the subpoena by delivering a copy to the named person as follows: on (date) ; or u I returned the subpoena unexecuted because: . Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ My fees are $ . for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc.: 0.00 . Case 3:20-cv-00040-MMD-CLB Document 46-5 Filed 05/06/21 Page 4 of 4 AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3) Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
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