United States District Court, D. Nevada
FOLEY, JR., UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Non-Party Jay International,
Hong Kong Limited's (“Jay at Play”) Motion
for Protective Order (ECF No. 424), filed on February 28,
2019. Defendant McCart-Pollak filed her Opposition (ECF No.
431) on March 18, 2019 and Jay at Play filed its Reply (ECF
No. 432) on March 22, 2019. The Court conducted a hearing in
this matter on March 29, 2019.
January 18, 2019, the Court granted McCart-Pollak's
motion for permission to serve a non-party subpoena on Jay at
Play to request documents reflecting royalty payments made to
Plaintiff On Demand Direct Response, LLC (“On
Demand”). See ECF No. 409. On January 25,
2019, McCart-Pollak served a subpoena on Jay at Play's
affiliate, Jay Franco & Sons, Inc. See Motion for
Protective Order (ECF No. 424), 2. On February 13, 2019,
Jay at Play produced responsive documents. Id. Jay
at Play argues that McCart-Pollak did not properly serve the
subpoena upon Jay at Play and that McCart-Pollak's
requests for production are unduly burdensome as well as not
proportionate to the needs of the case. McCart-Pollak argues
that Jay at Play did not produce all requested documents,
including royalty reports from March 2016 to June 2018. She
further argues that Jay at Play's objections are untimely
and are, therefore, waived.
26(b)(1) of the Federal Rules of Civil Procedure provides
that “[p]arties 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,
and the importance of the discovery in resolving the issues,
and whether the burden and expense of the proposed discovery
outweighs its likely benefit. Information within the scope of
discovery need not be admissible in evidence to be
party moves for a protective order, the court “may, for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). “Rule 26(c)
confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required.” Youngevity Int'l, Inc. v.
Smith, 2017 WL 2692928, at *3 (S.D. Cal. June 22, 2017).
The party moving for a protective order has the burden of
demonstrating good cause for its issuance. Fed.R.Civ.P.
26(c)(1); U.S. E.E.O.C. v. Caesars Entertainment,
Inc., 237 F.R.D. 428, 432 (D.Nev. 2006). This burden may
be met by showing that the discovery requested is irrelevant,
overly broad, burdensome, or oppressive. Youngevity
Int'l, Inc., 2017 WL 2692928, at *3.
or boilerplate objections such as ‘overly burdensome
and harassing' are improper - especially when a party
fails to submit any evidentiary declarations supporting such
objections.” Gray v. Unum Life Ins. Co. of
Am., 2018 WL 4566850, at *2 (C.D. Cal. Sept. 21, 2018)
(citing A. Farber & Partners, Inc. v. Garber,
234 F.R.D. 186, 188 (C.D. Cal. 2006)). A non-party's
failure to make timely objections to a Rule 45 subpoena
generally results in the finding that any objections have
been waived. Moon v. SCP Pool Corp., 232 F.R.D. 633,
636 (C.D. Cal. 2005) (citing Creative Gifts, Inc. v.
UFO, 183 F.R.D. 568, 570 (D.N.M.1998)). However, [i]n
unusual circumstances and for good cause, … the
failure to act timely will not bar consideration of
objections.” Moon, 232 F.R.D. at 636. Courts
have found unusual circumstances, for instance, where the
subpoena is overbroad on its face and exceeds the bounds of
fair discovery and the subpoenaed witness is a non-party
acting in good faith. Id. (citing McCoy v.
Southwest Airlines Co., Inc., 211 F.R.D. 381,
385 (C.D.Cal.2002)). When a request is overly broad on its
face or when relevancy is not readily apparent, however, the
party seeking discovery has the burden to show the relevancy
of the request. Desert Valley Painting & Drywall,
Inv. v. United States, 2012 WL 4792913, at *2 (D.Nev.
Oct. 9, 2012) (citing Marook v. State Farm Mut. Auto.
Ins. Co. 259 F.R.D. 388, 394-95 (N.D. Iowa 2009)).
Jay at Play produced responsive documents to McCart-Pollak
that include the license agreement between Jay at Play and On
Demand as well as reports reflecting sums of all royalties
paid to On Demand by Jay at Play and Jay Franco & Sons.
See Motion for Protective Order (ECF No. 424), 2. In
light of the overbroad nature of the subpoena served on
Non-Party Jay at Play and that it is acting in good faith,
the Court finds good cause to consider Jay at Play's
objections. McCart-Pollak's requests for all
communications regarding negotiations and the concept and
development of the CloudPets product between Jay at Play and
On Demand are overbroad and not proportional to the need of
this case. The Court, therefore, grants Jay at Play's
motion for protective order, in part, and it is not required
to respond to such requests.
McCart-Pollak's requests regarding royalty payments for
the CloudPet product between Jay at Play and On Demand are
relevant to McCart-Pollak proving up her damages. Jay at Play
represents that it has produced relevant documents in its
possession, custody, or control, including reports that
reflect sums paid to On Demand. If Jay at Play has documents
that reflect royalty payments made to On Demand after the
date of the last royalty statement that has already been
produced, it is instructed to produce such documents within
fourteen (14) days of the issuance of this order.
responding party must make a reasonable inquiry to determine
whether responsive documents exist. Rogers v.
Giurbino, 288 F.R.D. 469, 485 (S.D.Cal.2012) (quoting
Marti v. Baires, 2012 WL 2029720, at *19-20, (E.D.
Cal. June 5, 2012). If Jay at Play intends to claim an undue
burden or expense in relation to producing such documents, it
must allege specific facts which indicate the nature and
extent of the burden, usually by affidavit or other reliable
evidence. Barnum v. Equifax Info. Servs., LLC, 2018
WL 1245492, at *2 (D. Nev. Mar. 9, 2018); see also
Jackson v. Montgomery Ward & Co., 173 F.R.D. 524,
529 (D. Nev. 1997); U.S. E.E.O.C. v. Caesars
Entertainment, 237 F.R.D. 428, 432 (D. Nev. 2006). Once
a burden has been established, the Court must question
whether the burden is undue and then balance the burden
identified with the likely benefit of the discovery being
sought. Barnum, 2018 WL 1245492, at *2 (citing
Roberts v. Clark County School Dist, 312 F.R.D. 594,
603 (D. Nev. 2016)).
party, however, is not required to create a document where
none exists.” Id. If Jay at Play does not
possess such documents, it should so state with sufficient
specificity to allow the Court to determine whether the party
made a reasonable inquiry and exercised due diligence.
See Perrotte v. Johnson, 2019 WL 176786, at *3 (E.D.
Cal. Jan. 11, 2019). Accordingly, IT IS HEREBY
ORDERED that Non-Party Jay International, Hong Kong
Limited's (“Jay at ...