Avaya Inc. v. Pearce

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 AVAYA INC., Case No. 19-cv-00565-SI

6 Plaintiff, ORDER RE: DISCOVERY 7 v. Re: Dkt. No. 258 8 RAYMOND BRADLEY PEARCE, et al., 9 Defendants.

10 11 Plaintiff Avaya Inc. and defendant Atlas Systems, Inc. have submitted a joint discovery letter 12 to the Court. Dkt. No. 258. Atlas seeks a protective order prohibiting Avaya from contacting or 13 issuing subpoenas to Atlas’ customers. Id. at 2. According to the letter brief, Avaya wishes to 14 contact Atlas’ customers and issue subpoenas to up to 20 customers, with leave to seek more 15 discovery from customers if necessary. Id. at 6. Atlas asserts that “Avaya fails to provide the 16 subpoena or the specific information it seeks from customers, let alone explain what material 17 information customers have that Avaya cannot seek from a less burdensome source,” including 18 through depositions of the defendants. Id. at 2. Avaya contends that customers have information 19 relevant to Avaya’s claims as well as Atlas’ affirmative defenses, including information about what 20 representations Atlas made about the Avaya licenses and telephones that it sold. Id. at 5-6. 21 The Court is mindful of the concerns that Atlas has raised regarding its customers. In 22 addition, “[t]he Ninth Circuit has long held that nonparties subject to discovery requests deserve 23 extra protection from the courts.” United States v. CBS, Inc., 666 F.2d 364, 371-72 (9th Cir. 1982). 24 “Courts are particularly reluctant to require a non-party to provide discovery that can be produced 25 by a party.” Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 410 26 (C.D. Cal. 2014). On this record, Avaya has not demonstrated why it needs to seek information 27 from the customers prior to conducting any depositions of the defendants or seeking the information 1 subpoena Atlas’ customers. However, after Avaya has conducted more discovery from the parties, 2 || Avaya may seek leave of Court to contact and seek discovery from Atlas’ customers upon a showing 3 that the information is not otherwise available. 4 5 IT IS SO ORDERED. Suan Slate 7 Dated: March 24, 2021 SUSAN ILLSTON 8 United States District Judge 9 10 11 12

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28