HT S.R.L., Petitioner, v. Luis Alejandro VELASCO, Respondent.
Misc. Action No. 1:15-mc-00664-RBW-AK Related to: Case No. 15-mc-00177 (D. Md.)
United States District Court, District of Columbia.
August 28, 2015
211
ALAN KAY, UNITED STATES MAGISTRATE JUDGE
purposes) with STD Plan at 1, 2 (explaining that the plan “provides benefits to qualifying employees who are disabled because of a non-work-related illness or injury... after a five-day waiting period” and are in the regular care of a physician but not for other purposes). The Plan states that “STD will run concurrently with Family and Medical Leave [ ] where applicable” and that FMLA allows employees “to be reinstated to their former positions, or an equivalent position, ...” whereas “[r]einstatement following a leave involving receipt of STD benefits is not guaranteed....” Id. at 3. Clearly, these are two discrete programs; though their documents may share some language, they are not identical in eligibility requirements, benefits, or operation. As with EIB; grant of one does not perforce entitle an employee to receipt of the other, so denying an STD claim after granting the claimant FMLA leave is not arbitrary and capricious.
Finally, Plaintiff contends that Sedgwick labored under a conflict of interest because, as claims administrator for both Plans, it had an incentive to deny her STD benefits in order to avoid paying her LTD benefits in the future. See Opp. at 17. This conflict of interest, she believes, mandates a more searching review of the denial of her claim than would be required by the arbitrary-and-capricious standard. The Supreme Court, however, has already rejected that argument: Recognizing the potential for such conflicts of interest, the Supreme Court permits reviewing courts to consider the conflict as “a factor in determining whether there is an abuse of discretion,” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343 (2008) (internal quotation marks and citations omitted), while maintaining that this does not merit “a change in the standard of review... from deferential to de novo....” Id. at 115, 128 S.Ct. 2343. Here, Plaintiff does not suggest that the conflict of interest altered or in any way motivated Sedgwick‘s eligibility determination in her case, nor does she point to “a history of biased claims administration.” Id. at 117, 128 S.Ct. 2343. The mere existence of the conflict—present in “the lion‘s share of ERISA plan claims denials,” id. at 116, 128 S.Ct. 2343—is not enough to dispel the Court‘s conclusion that Sedgwick did not arbitrarily or capriciously deny LTD benefits to Foster.
IV. Conclusion
Finding that Plaintiff‘s challenge to Defendants’ denial of her claim for STD Benefits is not governed by ERISA, and that her challenge to the denial of her claim for LTD Benefits is not meritorious, the Court will grant Defendants’ Motion for Summary Judgment. A separate Order will so state.
Jeffrey S. Jacobovitz, Arnall Golden Gregory, LLP, Washington, DC, for Petitioner.
Rebecca S. Legrand, Kaiser, Legrand & Dillon PLLC, Washington, DC, for Respondent.
ALAN KAY, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Petitioner‘s Amended Motion to Compel Luis Alejandro Velasco to Comply with Properly-Served Subpoena and Incorporated Memorandum of Law (“Am. Mot. to Compel“) [3]; Respondent‘s Memorandum in Opposition to Petitioner‘s Motion to Compel and in Support of Mr. Velasco‘s Motion to Quash (“Opp‘n to Am. Mot. to Compel“) [4]; Respondent‘s Motion to Quash Subpoena (“Mot. to Quash“) [5]; Petitioner‘s Reply in Support of Amended Motion to Compel Luis Alejandro Velasco to Comply with Properly-Served Subpoena and Incorporated Memorandum of Law (“Reply in Supp. of Am. Mot. to Compel“) [6]; Petitioner HT S.R.L.‘s Memorandum in Opposition to Respondent‘s Motion to Quash Subpoena (“Opp‘n to Mot. to Quash“) [9]; and Respondent‘s Reply in Support of Respondent Luis Alejandro Velasco‘s Motion to Quash Subpoena (“Reply in Supp. of Mot. to Quash“) [10]. The Amended Motion to Compel was referred to the undersigned for a resolution. (Order [7]; Referral to Magistrate Judge [8]). For the reasons set forth in this Memorandum Opinion, the Court grants in part and denies in part Petitioner‘s Amended Motion to Compel and denies Respondent‘s Motion to Quash.
I. BACKGROUND
HT S.R.L. (“Petitioner“) is an Italian limited liability company with a registered office in Milan, Italy that “provides consultancy and management services for information technology security.” (Am. Mot. to Compel 1, Ex. 1B Declaration of Roberto Glavio Tirone (“Tirone Decl.“) [3-1] 25 at ¶ 3, Ex. 1C (“Agreement“) [3-1] 32). Petitioner‘s software product, Galileo Remote Control System (“RCS“), allows “undetected monitoring of computer activities[.]” (Am. Mot. to Compel 3; Agreement 32). On March 1, 2012, Petitioner entered into a consultant agreement (“Agreement“) with Luis Alejandro Velasco (“Respondent“), who is self-employed and lives and works in Annapolis, Maryland. (Opp‘n to Am. Mot. to Compel 1, 3; Agreement 2).
The Agreement assigns various responsibilities to Respondent, including promoting RCS and Petitioner. (Am. Mot. to Compel 3; Tirone Decl. ¶ 5; Agreement ¶¶ 1.1-1.7). In exchange for Respondent‘s work as Petitioner‘s “U.S. marketing consultant and technical assistant,” Petitioner compensated Respondent $80,000 each year. (Opp‘n to Mot. to Quash 1; Agreement ¶ 4.1). Petitioner drafted the Agreement, which includes a non-compete clause and a confidentiality clause prohibiting Respondent from disclosing confidential information regarding Petitioner‘s products
On March 17, 2015, Petitioner brought a civil suit (“Italian Proceeding“) against Respondent in the Court of Milan, Italy (“Court of Milan“) alleging Respondent violated the non-compete clause of the Agreement. (Am. Mot. to Compel 1, 4, Ex. 1D (“Italian Complaint“) [3-1] 39-64; Tirone Decl. ¶ 9). The Italian Complaint alleges that Respondent represented competitors and collaborated in developing, marketed, and sold a competitor‘s software while under contract with Petitioner, thus violating the Agreement.1 (Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10-14). On April 10, 2015, Petitioner filed an ex parte Application for an Order Pursuant to
On April 20, 2015, Petitioner issued the subpoena, commanding Respondent to testify at a deposition on May 11, 2015 at 10:00 a.m. at Petitioner‘s counsel‘s office in Washington, D.C. and produce documents at the deposition.2 (Am. Mot. to Compel Ex. 3. (“Subpoena“) [3-3]). Respondent was served on April 23, 2015. (Am. Mot. to Compel Ex. 4 (“Affidavit of Service“) [3-4]). On May 5, 2015, Respondent personally called Petitioner and requested to reschedule the deposition due to a family graduation requiring his attendance. (Am. Mot. to Compel 5; Opp‘n to Am. Mot. to Compel 3). That afternoon, Respondent personally e-mailed Petitioner acknowledging the acceptance of his request to reschedule and agreeing to appear for his deposition on May 21, 2015 (Am. Mot. to Compel Ex. 5[3-5], Ex. 11 [3-11]; Opp‘n to Am. Mot. to Compel Ex. D[4-1] 23). Petitioner responded that evening accepting the request to reschedule and informing Respondent he was still obligated to produce documents by the date set forth in the Subpoena, May 11, 2015. (Am. Mot. to Compel Ex. 11; Opp‘n to Am. Mot. to Compel Ex. D). On May 6, 2015, Respondent replied that he also needed additional
Respondent retained counsel on May 11, 2015 and she assumed responsibility of communicating with Petitioner. (Opp‘n to Am. Mot. to Compel 3). Respondent served correspondence on May 15, 2015, elaborating on his objections and explaining why the discovery was improper. (Am. Mot. to Compel Ex. 6[3-6]; Opp‘n to Am. Mot. to Compel 3 Ex. E[4-1] 25-27). On May 19, 2015, the parties exchanged a series of e-mails. (Am. Mot. to Compel 6; Opp‘n to Am. Mot. to Compel 3-4). Petitioner explained that the objections were untimely pursuant to
On May 20, 2015, the parties exchanged e-mails and scheduled a telephonic meet and confer. (Opp‘n to Am. Mot. to Compel 3 Ex. G 32-33). Respondent did not appear for his deposition on May 21, 2015 or produce the documents requested in the Subpoena. (Am. Mot. to Compel 6). At about 2:00 p.m. on May 21, 2015, the parties had a telephonic meet and confer but were unable to resolve their dispute. (Am. Mot. to Compel 6). Respondent proposed two alternatives to the Subpoena: (1) waiting to see whether the Court of Milan ordered discovery or (2) both parties “agree to engage in discovery beyond what is available under Italian law, to allow Mr. Velasco to similarly issue document requests to HT and take depositions of key HT employees.” (Opp‘n to Am. Mot. to Compel 4 Ex. H[4-1] 39).
The following day, Petitioner filed a Motion to Compel Compliance with the Subpoena.4 Respondent notified Petitioner that the Motion to Compel contained “demonstrably false statements” because
II. LEGAL STANDARD
A. Compelling Compliance with a Subpoena
Pursuant to
B. Enforcing a Subpoena Issued Pursuant to 28 U.S.C. § 1782(a)
Pursuant to
C. Quashing a Subpoena
Pursuant to
III. ANALYSIS
Petitioner argues that this Court should compel Respondent to comply with the Subpoena. (Am. Mot. to Compel 7). First, Judge Motz of the District Court of Maryland reviewed the relevant issues set forth in the Application; Judge Motz granted the Application, authorizing the issuance of the Subpoena; and Respondent subsequently agreed to appear at his deposition. (Am. Mot. to Compel 7; Reply in Supp. of Am. Mot. to Compel 5). Second, Petitioner argues that Respondent‘s objections set forth in the May 15, 2015 correspondence are meritless. (Am. Mot. to Compel 7-8). Third, Petitioner argues that Respondent did not timely file his Motion to Quash6 or file a motion for a protective order, thus failing to take “appropriate steps to excuse compliance[.]” (Am. Mot. to Compel 7; Opp‘n to Mot. to Quash 4). Lastly, the Motion to Quash does not comply with Local Civil Rule 7(m) and does not propound arguments sufficient to justify quashing a subpoena pursuant to
Respondent opposes Petitioner‘s Amended Motion to Compel and moves this Court to Quash the Subpoena. (Mot. to Quash; Opp‘n to Am. Mot. to Compel). First, Petitioner failed to “make a good faith effort to resolve this dispute, or even review basic facts[.]” (Opp‘n to Am. Mot. to Compel 4). Second, Petitioner‘s original Motion to Compel “falsely stated” Respondent failed to object within fourteen days of service pursuant to
peatedly,
A. Amended Motion to Compel
1. Compliance with Local Civil Rule 7(m) and Fed. R. Civ. P. 37(a)(1) .
As a preliminary matter, the Court notes that the Amended Motion to Compel complies with
Respondent does not refute that the parties conferred on May 21, 2015, but he asserts that Petitioner failed to “make a good faith effort to resolve this dispute” because Petitioner rejected Respondent‘s May 21, 2015 proposed alternatives to the Subpoena and rushed to file a motion to compel.10 (Opp‘n to Am. Mot. to Compel 4, Ex. H). Despite rejecting these proposals, Petitioner had previously attempted to accommodate Respondent in good faith.11 (Am. Mot. to Compel Ex. 5, Ex. 7, Ex. 11; Opp‘n to Am. Mot. to Compel 3, Ex. D, Ex. F). Respondent‘s May 21, 2015 proposals attempted to sidestep the court-authorized Subpoena after Petitioner had attempted to accommodate Respondent repeatedly in good faith. Thus, the Court finds that Petitioner‘s rejections of Respondent‘s proposals were not indicative of bad faith and that the parties did confer in good faith on May 21, 2015. Therefore, the Amended Motion to Compel complies with Local Civil Rule 7(m) and
2. Authority to grant the 28 U.S.C. § 1782(a) request.
A district court has the authority to permit discovery under
Here, Respondent resides in the district of the court in which the Application was made because he resides in Annapolis, Maryland and the United States District Court for the District of Maryland granted the Application. (Application 3; Am. Mot. to Compel 1; Opp’n to Am. Mot. to Compel 1; Order). Second, the discovery sought in the Subpoena is for use in a proceeding before a foreign tribunal because it is for use in the Italian Proceeding. (Am. Mot. to Compel 1-2). Third, the Application is made by an interested party because Petitioner is a party in the Italian Proceeding. (Am. Mot. to Compel 1-2); see also Lancaster Factoring Co. Ltd. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996) (citation omitted) (internal quotations omitted) (noting that the legislative history of
3. Authority to enforce a subpoena issued pursuant to 28 U.S.C. § 1782(a) .
Pursuant to
4. Exercising discretion to enforce a subpoena issued pursuant to 28 U.S.C. § 1782(a) .
If the court determines it has the authority to permit or enforce the
strictions
a. Party from whom discovery is sought.
When a
b. Nature of the foreign tribunal.
The nature of the foreign tribunal weighs against enforcing discovery if the party seeking the discovery had options in selecting the forum for the foreign proceeding. See In re Application of Caratube Int’l Oil Co., LLP, 730 F.Supp.2d at 106 (finding the nature of the tribunal weighs against granting the petition because Petitioner had options of arbitrating the dispute under different rules, in a different arbitration instruction, or in a court and therefore the court was “reluctant ... to interfere with the parties’ bargained-for expectations concerning the arbitration process.“). Here, Petitioner did not have options regarding forum or law because the Agreement included choice of law and choice of forum clauses. (Agreement ¶¶ 12.1, 12.2; Opp’n to Am. Mot. to Compel 1). Accordingly, Italian law governs the Agreement and the Court of Milan has exclusive jurisdiction. (Agreement ¶¶ 12.1, 12.2; Opp’n to Am. Mot. to Compel 1). Because Petitioner did not have options in pursuing its claim, the nature of the foreign tribunal weighs in favor of enforcing the Subpoena.
c. Character of the foreign proceedings.
To determine whether the character of the foreign proceeding favors permitting discovery, courts analyze how far along the foreign suit is in the discovery process. See In re Application of Caratube Int’l Oil Co., LLP, 730 F.Supp.2d at 106-07 (finding the character of the foreign proceeding weighs against granting the petition because Petitioner filed the petition with less than a month before discovery closed, neither party had requested non-party discovery from the foreign tribunal and the parties had not discussed non-party discovery); see also Norex, 384 F.Supp.2d at 54 (denying motion to compel in part because the foreign litigation may not have reached “the stage in which discovery would be appropriate” and thus the Court is wary that Petitioner “may be using the United States statutes and federal court system to ‘jump the gun’ on discovery in the underlying foreign suit.“).
The Court finds that the Italian Proceeding is in its early stages. Unlike the petitioner in In re Application of Caratube
d. Receptivity of the foreign tribunal to U.S. judicial assistance.
A foreign tribunal‘s receptivity to judicial assistance through
Petitioner relies on the declaration of Petitioner‘s Italian counsel to assert the Court in Milan is receptive to the discovery that the Subpoena seeks. (Am. Mot. to Compel 7-8; Reply in Supp. of Am. Mot. to Compel 5). Petitioner‘s Italian counsel claims that “Italian law does not limit the methods by which parties may obtain discovery, as long as the discovery has been obtained legally” and “[t]here is no evidence that the Italian Court would reject evidence obtained pursuant to § 1782.” (Am. Mot. to Compel 8; Tirone Decl. ¶¶ 21, 22). Pursuant to In re Veiga, Respondent has the burden of proof as the resisting party. 746 F.Supp.2d at
e. Circumvention of foreign proof-gathering restrictions and policies.
A petition “conceal[ing] an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States” weighs against enforcing discovery. Intel, 542 U.S. at 264-65, 124 S.Ct. 2466. It is irrelevant if the material sought is not discoverable in the foreign tribunal because
If the material sought is discoverable in the foreign tribunal, litigants are not required to seek discovery through the foreign tribunal prior to requesting through the United States, but courts have the discretion to consider this factor. See In re Application of Caratube Int‘l Oil Co., LLP, 730 F.Supp.2d at 107-08. Some courts have found that a party‘s efforts to obtain information from United States courts prior to attempting to obtain “comparable discovery” through the foreign tribunal is not a circumvention of foreign proof-gathering policies and thus “irrelevant.” In re Veiga, 746 F.Supp.2d at 24 (citation omitted); see also In re Application of Caratube Int‘l Oil Co., LLP, 730 F.Supp.2d at 107-08 (quoting Euromepa, 51 F.3d at 1098) (explaining some courts have “refused to engraft” onto
Respondent claims that Petitioner is attempting to circumvent the Court of Milan‘s foreign proof-gathering policies and procedures. (Opp‘n to Mot. to Am. Mot. to Compel 6-7; Reply in Supp. of Mot. to Quash 3-4). First, Respondent asserts that the Court of Milan does not permit the deposition testimony or document requests that Petitioner seeks.14 (Opp‘n to Mot. to Am. Mot. to Compel 6-7; Reply in Supp. of Mot. to Quash 3-4). Second, Petitioner has rejected Respondent‘s multiple offers “that both parties could provide discovery on a reciprocal basis[.]” (Opp‘n to Am. Mot. to Compel 7, Ex. H; Reply in Supp. of Mot. to Quash 4). Lastly, Respondent argues that Petitioner failed to comply with Italian law because it did not “first mak[e] any effort to obtain a discovery order from the court in Milan[.]” (Opp‘n to Am. Mot. to Compel 7).
Petitioner refutes it is not circumventing Italian restrictions on discovery because the evidence is discoverable under Italian law.15 (Am. Mot. to Compel 8; Tirone Decl. ¶¶ 21, 22; Reply in Supp. of Am. Mot. to Compel 3, 5). Petitioner notes that “[s]everal courts have also compelled compliance with a Subpoena issued under § 1782 related to an Italian proceeding.”16 (Reply in Supp. of Am. Mot. to Compel 5; Opp‘n to Mot. to Quash 7-8 (citing Lancaster Factoring Co. Ltd. v. Mangone, 90 F.3d at 39; In re Nieri, 2000 WL 60214 at *1-2, 2000 U.S. Dist. LEXIS 540 at *2-4)).
The parties’ conflicting evidence as to whether the discovery sought is permissible in the Court of Milan is irrelevant because
f. Scope of discovery.
A court may reject or modify unduly burdensome or intrusive requests. See Intel, 542 U.S. at 265, 124 S.Ct. 2466 (citations omitted); see also Lazaridis, 760 F.Supp.2d at 115-16 (declining to permit discovery in part because of the vague, “wide-ranging request” seeking six categories of documents, some over an eight-year time period); In re Veiga, 746 F.Supp.2d at 25-26 (declining to order production of documents located outside the United States); Infineon, 247 F.R.D. at 5 (noting the material sought is not burdensome because it has already been produced and movant is “only asking to share the documents” with its foreign counsel and possibly the foreign tribunal).
Here, Respondent objected that the document request attached to the Subpoena “is questionable and overly broad and overly burdensome” via e-mail on May 6, 2015.17 (Am. Mot. to Compel Ex. 11; Opp‘n to Am. Mot. to Compel Ex. D). His counsel then reiterated these objections in correspondence on May 15, 2015,18 and argued that the discovery requests are impermissible under Italian law. (Opp‘n to Am. Mot. to Compel 3, Ex. E 25-26 (quoting Subpoena 5, 13)). Respondent explains Request Number 1 is overly broad because it “seeks seven different subcategories of documents,” including all documents regarding “Competing Software,” a term defined broadly in the Subpoena as “any software that may be considered to be in competition with, or may neutralize the effectiveness of, software developed, marketed or sold by HT.” (Opp‘n to Am. Mot. to Compel 3 Ex. E (quoting Subpoena 5, 13)). Petitioner refutes that the requests are not overly broad or burdensome because the Subpoena is “reasonable on its
This Court finds that the definition of “Competing Software” is not overly broad because it is relevant to Petitioner‘s Italian Complaint. Petitioner alleges that Respondent violated the non-compete clause of the parties’ Agreement by representing competitors and collaborating in developing, marketing, and selling a competitor‘s software. (Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10-14). This Court finds that all four document requests are relevant to the Italian Proceeding and limited in scope as they request documents regarding the Agreement allegedly violated and Petitioner‘s competitors and their software, as specified in the Italian Complaint. (Subpoena 13; Am. Mot. to Compel 4; Tirone Decl. ¶¶ 10-13). This Court additionally limits the scope of the requests to the time period during which the Agreement prohibited Respondent from competing with Petitioner as set forth in the non-compete clause: “for the entire duration of [the March 1, 2012 Agreement] and for a period of one year starting from the termination of [the Agreement.]” (Agreement 2, 4 at ¶ 5.1).19 Furthermore, any proprietary and confidential information not pertaining to Petitioner may be redacted.
g. Other factors for consideration.
In the instant case, Respondent agreed to appear at his deposition, retained counsel, and ultimately refused to be deposed. (Am. Mot. to Compel 7, Ex. 5, Ex. 10, Ex. 11; Opp‘n to Am. Mot. to Compel 3, Ex. D, Ex. G 34). This Court finds that Respondent‘s change in position is unfair to Petitioner and a waste of Petitioner‘s time and resources. Enforcing the deposition based on this factor furthers the twin aims of
Therefore, an overwhelming majority of the factors analyzed weigh in favor of this Court exercising its discretion pursuant to the twin aims of
B. Motion to Quash
1. Noncompliance with Local Civil Rule 7(m).
Local Civil Rule 7(m) requires the parties to confer in good-faith prior to filing nondispositive motion and explain in the motion that the meet and confer took place. See supra at 220. Petitioner argues that Respondent did not discuss the anticipated motion with Petitioner or include a statement in its motion that this discussion occurred. (Opp‘n to Mot. to Quash 3). Respondent asserts that he attempted to confer with Petitioner repeatedly. (Reply in Supp. of Mot. to Quash 1-3). Respondent relies on a May 22, 2015 correspondence in which Respondent requested that
The Court finds Respondent‘s correspondence insufficient. This correspondence puts Petitioner on notice of Respondent‘s intention to file a motion to quash, but it does not attempt to narrow the scope of the issues. Respondent failed to provide evidence that the parties discussed the “anticipated motion” or that Respondent attempted to schedule a meeting with Petitioner to discuss the motion. Local Civil Rule 7(m). Moreover, the Motion to Quash does not include the mandatory certification that the discussion took place. Id. Therefore, the Court finds that the Motion to Quash does not comply with Local Civil Rule 7(m).
2. Untimely filing.
Pursuant to
Here, Petitioner argues that Respondent‘s Motion to Quash is untimely because it was filed 21 days after “the time set in the subpoena for compliance[.]” (Opp‘n to Mot. to Quash 4 (citing U.S. ex rel. Pogue, 238 F.Supp.2d at 278)).20 The Subpoena required Respondent to be deposed and produce documents on May 11, 2015. (Subpoena 2). Respondent was served with the Subpoena on April 23, 2015. (Affidavit of Service). Petitioner granted Respondent an extension for the deposition, rescheduling from May 11, 2015 to May 21, 2015. (Am. Mot. to Compel 5, Ex. 5, Ex. 11; Opp‘n to Am. Mot. to
3. Insufficient Arguments to Justify Quashing the Subpoena.
If the commanding party “timely” moves the court, the court must quash or modify a subpoena that “(i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.”
a. Reasonable time to comply.
Pursuant to
The Subpoena required Respondent to be deposed and produce documents in response to four limited requests for specific documents related to the allegations in Plaintiff‘s Italian Complaint, on May 11, 2015. (Subpoena 2). Respondent was served with the Subpoena on April 23, 2015 and thus had 18 days to comply with the Subpoena or file a motion to quash. (Affidavit of Service; Subpoena 2). Petitioner subsequently granted Respondent a ten-day extension for the deposition, thus providing Respondent with 28 days to comply. (Am. Mot. to Compel 5, Ex. 5, Ex. 11; Opp‘n to Am. Mot. to Compel 3, Ex. D). The Court finds that 28 days is sufficient time to appear for a deposition and produce documents in response to limited requests.
b. Compliance within geographical limitations.
Pursuant to
c. Disclosure of privileged or protected matter.
Pursuant to
d. Undue burden.
Pursuant to
Because Respondent failed to prove the Court must quash the Subpoena, the Court denies Respondent‘s Motion to Quash and thus, the Respondent must appear for a deposition.
C. Attorneys’ Fees and Costs
Both parties request attorneys’ fees and costs. First, Respondent requests attorneys’ fees and costs incurred as a result of the Subpoena and Motion to Compel. (Mot. to Quash). Because Respondent‘s Motion to Quash is denied, the Court finds he is not entitled to attorneys’ fees or costs. Next, Petitioner requests an award of costs, including attorneys’ fees, related to compelling Respondent‘s compliance with the Subpoena. (Am. Mot. to Compel 2). Attorneys’ fees and costs incurred in preparing a motion to compel are governed by
IV. CONCLUSION
For the reasons stated above, the Court grants in part and denies in part Petitioner‘s Amended Motion to Compel [3] and denies Respondent‘s Motion to Quash [5]. An Order consistent with this Memorandum Opinion will be issued separately.
ALAN KAY
UNITED STATES MAGISTRATE JUDGE