Nova Biomedical Corp. v. i-Stat Corp.

182 F.R.D. 419, 1998 WL 641215
CourtDistrict Court, S.D. New York
DecidedSeptember 17, 1998
DocketNo. 95-11396-RGS; Misc. No. 8-85
StatusPublished
Cited by14 cases

This text of 182 F.R.D. 419 (Nova Biomedical Corp. v. i-Stat Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nova Biomedical Corp. v. i-Stat Corp., 182 F.R.D. 419, 1998 WL 641215 (S.D.N.Y. 1998).

Opinion

MEMORANDUM DECISION AND ORDER

PARKER, Jr., District Judge.

Nova Biomedical Corporation (“Nova”) commenced this action in June 1995 in the District of Massachusetts. Nova Biomedical Corp. v. i-STAT Corp., D. Mass. Index No. 95-11896-RGS. Nova claimed patent infringement by i-STAT Corporation (“i-STAT”), a new entrant into Nova’s product [420]*420market. i-STAT denied Nova’s claims of patent infringement and counterclaimed, asserting patent misuse/antitrust monopolization claims under Section 2 of the Sherman Act based on Nova’s assertion of an allegedly meritless patent infringement suit.

Currently before this Court are i-STAT’s objections to Chief Magistrate Judge Doling-er’s April 2, 1998 Order granting the motion of third party Evan Sturza to quash the second set of subpoenas directed to Sturza and his corporate entity, Taurus Littrow Publishing, Inc., and denying i-STAT’s cross-motion to compel and for an order of contempt. Sturza and Taurus Littrow Publishing, Inc. seek fees and expenses for opposing i-STAT’s objections.

BACKGROUND

On August 29, 1997, Evan Sturza, a non-party witness, was scheduled to be deposed concerning information that he and his company had about i-STAT. When Sturza failed to appear, i-STAT moved in this Court by Order to Show Cause for the issuance of an Order of Contempt. i-STAT sought sanctions against Sturza for refusing to comply with subpoenas seeking testimony and document production in connection with i-STAT’s counterclaims. i-STAT contended that Sturza had been provided with “advance information” of the patent infringement suit through a fax from Nova that allowed Sturza and his clients to trade ahead of public knowledge of the Nova lawsuit, and that Sturza had disseminated information to Dan Dorfman, a public analyst, who thereafter criticized i-STAT. Following a September 4, 1997 hearing at which Sturza appeared pro se, this Court ordered Sturza to appear for his deposition and to produce the documents requested.

Sturza appeared pro se for his deposition on September 8, 1997, and brought with him a number of documents responsive to i-STAT’s subpoenas. When Sturza refused to answer many questions due to a claimed inability to recollect the information sought, i-STAT adjourned the deposition, made a second motion for contempt, and sought appointment of a Special Master to supervise the remainder of the deposition. This Court referred i-STAT’s application to Chief Magistrate Judge Michael A. Dolinger.

On September 19, 1997, Nova and i-STAT appeared before Magistrate Judge Dolinger. Sturza also appeared and was represented by Neil Brickman, Esq. The Magistrate ordered a resumption of Sturza’s deposition, found relevant questioning into who had received Sturza’s analysis on i-STAT, and advised the parties that he would hold the matter of i-STAT’s request for fees and expenses in abeyance until the completion of Sturza’s deposition.

During the period between the September 19 hearing and Sturza’s resumed deposition, counsel for i-STAT concluded that additional documents were required. When Sturza refused to voluntarily produce the documents, counsel made numerous attempts to serve Sturza with a second set of subpoenas, intending to hold only one deposition once all the documents had been received. i-STAT, however, was unable to serve Sturza until the deposition resumed.

On February 18,1998, Sturza appeared for his deposition. During the deposition (at which Sturza was represented by new counsel, William House, Esq.), Sturza answered most of the questions posed, but again did not answer certain questions to the satisfaction of i-STAT’s attorneys. At the close of the deposition, counsel for i-STAT served Sturza with two new subpoenas for production and authentication of documents, one for Sturza himself, and one for his company, Taurus Littrow Publishing. Both subpoenas were returnable March 16,1998.

Sturza and Taurus moved to quash the subpoenas. The motion to quash was served on Saturday evening, March 14, 1998 by facsimile and by hand upon counsel for i-STAT, and by facsimile and overnight mail upon counsel for Nova. i-STAT cross-moved to compel and for a finding of contempt against Sturza and Taurus.

On April 2,1998, the Magistrate heard oral argument on the motions. Following his review of the papers submitted on the motions, the second subpoenas, and oral argument, he quashed the subpoenas, denied i-STAT’s request for fees and expenses, and denied sane-[421]*421tions. The Magistrate gave two reasons for his decision: first, i-STAT had not demonstrated its entitlement to the additional documents requested in the second subpoenas because the new subpoenas “traverse[d] the same ground” as the original subpoenas except they sought “information going back to the beginning of 1992 and continuing to the present”; and second, i-STAT was not justified in serving a second subpoena to obtain documents from a non-party witness who had previously complied with a prior subpoena for documents and testimony.

i-STAT’s two sets of subpoenas differ in a few ways. Significantly, the initial subpoenas request certain documents beginning June 1, 1994 while the second set of subpoenas requests documents beginning January 1,1992. There are other differences as well. For example, the first request in the second subpoenas seeks Sturza’s “sources of information” regarding i-STAT, and is a new request stemming from Sturza’s alleged vagueness at his deposition. i-STAT contends that it requires Sturza’s sources of information to determine the substance and extent of Nova’s connection with Sturza. As Sturza points out, however, this request is encompassed by the eighth and ninth requests of the original subpoenas, which request “[a]ll files, research memos, recommendations, analyses, and other documents” relating to i-STAT, and its competitors.

The fifth, seventh, eighth, ninth, tenth and eleventh requests in the second subpoenas are also new, requesting information about Sturza’s customers, including “all documents reflecting the identities of individuals or entities who received any report made or communicated by you about i-STAT in calendar year 1995,” “copies of all communications with Feshbach Brothers or Stockbridge Partners or any individual associated with either entity relating to i-STAT or Nova during the year 1995,” “copies of all customer lists as of June or July 1995” reflecting identities of persons receiving Sturza’s research, and “a printout of the entirety of the Rolodex on the personal computer as referred to in the deposition testimony.” i-STAT contends that these requests result from Sturza’s lack of recall at his deposition as to the recipients of his analyses and his relationships with certain entities. i-STAT does not indicate, however, why, with the exception of the request for the Rolodex, these documents could not have been requested in the original subpoenas.

Otherwise, the first and second set of subpoenas are similar. For example, the second request of the second subpoenas corresponds with the first request from the original subpoenas. The original subpoenas request:

All documents which constitute, refer, reflect or relate to the dates and contents of all written or oral communications during the period June 1, 1994 through date of your response hereto, either A. with John Wallace of Nova Biomedical Corp.; or B. with any other agent, attorney, employee or representative of Nova Biomedical Corp.; or C. any other entity or person relating to i-STAT Corp.

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Bluebook (online)
182 F.R.D. 419, 1998 WL 641215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nova-biomedical-corp-v-i-stat-corp-nysd-1998.