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In re Wood

United States District Court, D. Maine

November 6, 2019

In re Jeffrey G. Wood

          MEMORANDUM DECISION AND ORDER ON NON-PARTY JEFFREY G. WOOD'S MOTION TO QUASH SUBPOENA

          John H. Rich III United States Magistrate Judge

         Pursuant to Federal Rule of Civil Procedure 45, Jeffrey G. Wood, a nonparty, seeks to quash a subpoena served upon him by Alcon Vision, LLC (“Alcon”), the plaintiff in the underlying litigation, noted above, pending in the United States District Court for the Eastern District of New York (“E.D.N.Y.”). See Non-Party Jeffrey G. Wood's Motion To Quash Subpoena (“Motion”) (ECF No. 1) at 1. Because the documents Alcon seeks are obtainable from parties to the underlying case, its subpoena imposes an undue burden on Mr. Wood. Accordingly, I grant the motion.

         I. Applicable Legal Standards

         Rule 45 provides, in relevant part, “[o]n timely motion, the court for the district where compliance is required” - in this case, the District of Maine - “must quash or modify a subpoena that . . . subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iv).[1] The movant bears the burden of establishing that the portions of the subpoena at issue impose an undue burden on him. See, e.g., 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (“Wright & Miller”) § 2463.1, at 507 (3d ed. 2008).

         “Whether a subpoena subjects a witness to undue burden . . . usually raises a question of the reasonableness of the subpoena[, ]” requiring “a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it[.]” Id. at 501 (footnote omitted). “[T]his process of weighing a subpoena's benefits and burdens calls upon the trial court to consider whether the information is necessary and whether it is available from any other source[, ]” which is “obviously . . . a highly case specific inquiry and entails an exercise of judicial discretion.” Id. at 501-06 (footnotes omitted).

         “In addition, subpoenas duces tecum to a third party are discovery devices which, although governed in the first instance by Rule 45, are also subject to the parameters established by Rule 26.” Hume v. Consol. Grain & Barge, Inc., CIVIL ACTION NO. 15-935, 2016 WL 7385699, at *2 (E.D. La. Dec. 21, 2016) (citations and internal quotation marks omitted). See also, e.g., EEOC v. Tex. Roadhouse, Inc., 303 F.R.D. 1, 2 (D. Mass. 2014) (“A subpoena issued to a non-party pursuant to Rule 45 is subject to Rule 26(b)(1)'s overriding relevance requirement.”).

         In turn, Rule 26 provides, in relevant part:

Parties 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, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         Fed. R. Civ. P. 26(b)(1). As in the case of Rule 45(d)(3)(A)(iv), analysis pursuant to Rule 26(b)(1) requires the court to “engage[] in a balancing test, weighing the defendants' need for this information, the availability of other means of obtaining it, and the burden placed on the claimants by the subpoenas.” Tex. Roadhouse, 303 F.R.D. at 2.

         II. Background

         Alcon, the plaintiff in the litigation pending in the E.D.N.Y., is a manufacturer of soft contact lenses that it sells to distributors throughout the world. Motion at 1. Alcon brought suit for, inter alia, trademark infringement against Allied Vision Group, Inc. (“AVG”) and National Lens LLC (“NL”), wholesale distributors of contact lenses within the United States. Motion at 2; Plaintiff Alcon Vision, LLC's Opposition to Jeffrey G. Wood's Motion To Quash Subpoena (“Opposition”) (ECF No. 6) at Page ID # 412.[2] Alcon alleges that AVG and NL import and sell Alcon contact lenses that are not intended to be sold in the United States, lack Alcon's safety and usage information for U.S. consumers, may not be compliant with U.S. Food and Drug Administration standards, and may not be authentic. Opposition at Page ID # 412. AVG and NL have filed counterclaims against Alcon alleging, inter alia, violation of federal antitrust law. Motion at 2. Alcon also brought a separate suit against AVG and NL in the United States District Court for the Southern District of Florida relating to different products and predicated on different theories of liability. Id. at 3. However, the instant motion to quash relates only to the litigation pending in the E.D.N.Y. Id.

         Mr. Wood is a senior partner at Hammond, Kennedy, Whitney & Company, Inc. (“HKW”), a private equity firm that acquired AVG and NL through a leveraged buyout in September 2017. Id. at 2; Opposition at Page ID # 413. He is also the Chairman of both the Board of Directors of AVG and the Board of Managers of NL. Motion at 2. Neither HKW nor Mr. Wood is a party to the litigation pending in the E.D.N.Y. Id.

         The subpoena at issue, served on Mr. Wood on July 15, 2019, seeks the following eight categories of documents:

REQUEST NO. 1: All Documents referencing or concerning Hammond's investment in AVG, including all draft and final documents prepared by Hammond or AVG in furtherance of Hammond's investment in AVG, including but not limited to: Securities Purchase Agreement, Agreement and Plan of Merger, Subscription Agreements, Rollover Agreements, Disclosure Schedules, Escrow Agreement, Support ...

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