CSS, Inc. v. Herrington

354 F. Supp. 3d 702
CourtDistrict Court, N.D. Texas
DecidedOctober 20, 2017
DocketNo. 3:17-mc-71-N-BN
StatusPublished
Cited by30 cases

This text of 354 F. Supp. 3d 702 (CSS, Inc. v. Herrington) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CSS, Inc. v. Herrington, 354 F. Supp. 3d 702 (N.D. Tex. 2017).

Opinion

DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

CSS, Inc., the plaintiff in CSS, Inc. v. Christopher Herrington, Gene Yoho and Compiled Technologies, LLC , Civil Action No. 2:16-cv-1762, pending in the United States District Court for the Southern District of West Virginia (the "West Virginia case"), has filed a Motion to Quash Third-Party Subpoenas and Motion For Protective Order, see Dkt. No. 1 (the "Motion to Quash"), under Federal Rules of Civil Procedure 45(d)(3) and 26(c) as to Federal Rule of Civil Procedure 45 subpoenas served by the defendants in the West Virginia case-Compiled Technologies LLC, Christopher Herrington, and Gene Yoho (collectively, "Defendants")-on non-parties Kofile Technologies Group, Inc. and Kofile Technologies, Inc. (collectively, the "Kofile Entities"), in connection with the West Virginia case (the "Subpoenas"). The Kofile Entities have joined in the Motion to Quash. See Dkt. No. 3 (the "Motion to Join").

United States District Judge David C. Godbey has referred the Motion to Quash and the Motion to Join to the undersigned United States magistrate judge for hearing, if necessary, and determination under 28 U.S.C. § 636(b). See Dkt. No. 4.

Defendants filed a response, see Dkt. No. 7, and CSS and the Kofile Entities filed a reply, see Dkt. No. 10. Although originally scheduled for October 25, 2017, the Court determines that oral argument is not necessary.

Background

The Subpoenas were properly issued by the United States District Court for the Southern District of West Virginia under Federal Rule of Civil Procedure 45(a), as the court where the West Virginia case is pending. See FED. R. CIV. P. 45(a)(2) ("Issuing Court. A subpoena must issue from the court where the action is pending.").

They command the Kofile Entities to produce documents to "Stephen D. Annand, Esq. / E-mail: sda@ramlaw.com c/o Mark E. Golman, Strasburger Attorneys at Law 901 Main Street, Suite 6000, Dallas, TX 75202." Dkt. Nos. 2-1 & 2-2. Mr. *705Annand is Defendants' counsel in the West Virginia case.

The Subpoenas list the persons to whom they are directed as "Kofile Technologies Group, Inc. (Attn: William D. Oates); 6300 Cedar Springs Road Dallas, Texas 75235," Dkt. No. 2-1, and "Kofile Technologies, Inc. (Attn: William D. Oates); 6300 Cedar Springs Road Dallas, Texas 75235," Dkt. No. 2-2.

Defendants also filed in the West Virginia case a Notice of Intent to Serve Subpoena Duces Tecum on Kofile Technologies Group, Inc., see Dkt. No. 7-1, and a Notice of Intent to Serve Subpoena Duces Tecum on Kofile Technologies, Inc., see Dkt. No. 7-2 (collectively, the "Notices of Intent"). These documents explain that "[t]he subpoenaed information is to be received on or before September 18, 2017, by way of electronic means to Stephen D. Armand at sda@ram1aw.com, or if a hard copy is preferred, the material may be delivered to Mr. Armand c/o of the following attorney in Dallas, Texas at the following address: Mark E. Golman, Strasburger & Price, LLP, 901 Main Street, Suite 6000, Dallas, Texas 75202. Mr. Golman can be reached at: 214-651-4478." Dkt. Nos. 7-1 & 7-2.

CSS also explains that "Defendants filed a motion to compel production pursuant to the subpoenas in the Southern District of West Virginia" and that the Kofile Entities "requested that Defendants withdraw the motion because it was filed in the wrong court pursuant to [Federal Rule of Civil Procedure] 45(d)(2)(B)(i) and the Kofile [Entities] are not parties to the [West Virginia case]" but that "Defendants refused to withdraw the motion." Dkt. No. 1 at 5.

Defendants report that they "are currently pursuing a Motion to Compel for Discovery Deficiencies in the Southern District of West Virginia against CSS for responsive emails and other documents that Defendants believe CSS has failed to produce thus far" and that the Subpoenas served on the Kofile Entities "fall under the umbrella of the above-referenced Defendants' Motion to Compel for Discovery Deficiencies." Dkt. No. 7 at 4; see also id. at 6. "Defendants acknowledge that United States District Judge Joseph R. Goodwin of the issuing Court recently denied a motion by the Defendants to extend discovery to October 15, 2017," but "Defendants maintain that the Kofile subpoenas and corresponding motions remain timely," where "Kofile is the parent corporation of Plaintiff CSS, Inc. in the underlying litigation and is inextricably linked to the underlying litigation" and "Defendants are currently pursuing a Motion to Compel for Discovery Deficiencies in the Southern District of West Virginia against CSS for responsive emails and other documents that Defendants believe CSS has failed to produce thus far." Id. at 4.

Legal Standards

Under Federal Rule of Civil Procedure 45, a party may serve a subpoena commanding a nonparty "to whom it is directed to ... produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control." FED. R. CIV. P. 45(a)(1)(A)(iii). Under Rule 45(c), "[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." FED. R. CIV. P. 45(c)(2)(A). And, under Rule 45(a)(4), "[i]f the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party." FED. R. CIV. P. 45(a)(4).

*706Rule 45(d)(2)(B) requires that "[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"-and that "[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served." FED. R. CIV. P. 45(d)(2)(B).

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354 F. Supp. 3d 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/css-inc-v-herrington-txnd-2017.