MEMORANDUM ORDER ON DISCOVERY MOTIONS
THIS MATTER comes before the court on Plaintiff Klesch & Company Limited’s (“Klesch”) Motion to Compel Production of Documents Responsive to Subpoena Served on N.M. Rothschild & Sons (Denver) Inc., filed on April 24, 2003. Non-party N.M. Rothschild & Sons (Denver) (hereinafter “Rothschild (Denver)”) filed a Memorandum of Law in Opposition on June 3, 2003. Also pending before the court is Defendant Liberty Media Corp.’s (“Liberty Media”) Motion to Issue a Subpoena to Compel the Appearance of Warren Mobley at a Deposition, filed on May 21, 2003. Plaintiff Klesch filed a Memorandum of Law in Opposition to Liberty Media’s motion on June 3, 2003. Pursuant to a Order of Reference to Magistrate Judge, dated August 21, 2001, this matter was referred to the Magistrate Judge to, inter alia, “hear and determine pretrial matters, including discovery and other non-dispositive motions.”
On June 5, 2003, the court held a hearing on the instant discovery motions. After considering the arguments advanced in the parties’ briefs and by counsel during the June 5th hearing, as well as the applicable law, the
FACTUAL BACKGROUND
Klesch & Company Limited initiated the instant action on July 27, 2001, with a Complaint alleging fraud against all named defendants and separate claims against Defendant Liberty Media for breach of fiduciary duty, breach of contract, promissory estoppel, unjust enrichment, negligent misrepresentation, tortious- interference with economic advantage, and misappropriation of business value. Plaintiff generally alleges that it formed a partnership with Liberty Media in February 2001 to pursue a lucrative opportunity developed by Klesch to acquire an interest in certain Deutsche Telekom AG cable television networks in Germany. Plaintiff contends that it entered into this partnership, and rejected other willing partners and investors, based on Liberty Media’s agreement that the parties would pursue the Deutsche Telekom deal as equal partners. Liberty Media allegedly usurped the business opportunity for itself after Klesch provided material information. Defendants Malone and Bennett, acting on behalf of Liberty Media, allegedly conveyed false information to Deutsche Telekom and made material misrepresentations and omissions to Klesch regarding Liberty Media’s intentions concerning the partnership. Plaintiff contends that it was deprived of approximately $5 billion in value as a result of the Defendants’ wrongful actions.
Defendant Liberty Media has filed counterclaims seeking declaratory judgments as to the parties’ June 7, 2001 Letter Agreement and alleging fraud and negligent misrepresentation on the part of Gary Klesch, in his personal capacity on behalf of Klesch & Company Limited. More specifically, Liberty Media contends that the evolving nature of the proposed transaction with Deutsche Tele-kom prompted the parties to revise. their business relationship through a Letter Agreement executed on June 7, 2001. Defendant claims this document, which superseded the parties’ earlier March 16 Letter Agreement, was the result of extensive, arms-length negotiations. Liberty Media alleges that Klesch subsequently repudiated the June 7th Letter Agreement and ceased to perform its obligations, thereby materially breaching the parties’ only enforceable contract.
ANALYSIS
I. Plaintiffs Motion to Compel Production of Documents
Klesch & Company Limited has moved to compel the production of documents responsive to a subpoena duces tecum served on non-party N.M. Rothschild & Sons (Denver). The subpoena directs Rothschild (Denver) to produce any responsive documents “within its possession, custody or control, including documents within the possession, custody or control of its affiliates, officers, employees, agents and representatives,” and broadly defines “Rothschild” to include “Rothschild (Denver) and each of its current or former subsidiaries, affiliates, parents, predecessors and successors, divisions, departments and operating units.” Plaintiffs subpoena requires production of
All documents from February 1, 2001 through and including December 31, 2002 concerning Liberty Media’s and/or Klesch’s proposed acquisition of any of Te-lekom’s regional networks, including but not limited to, schedules, planners, notes, correspondence, memos and electronic mail concerning communications among any of Liberty Media, Rothschild, Telekom and/or the German Federal Cartel Office, but not including drafts or the final versions of documents constituting agreements between Klesch and/or Liberty Medial and Telekom, submissions to the German Federal Cartel Office and documents created by, provided by, or presented to Klesch and/or Jefferies.
See Notice of Subpoena and Subpoena Duces Tecum attached as Exhibit F to Klesch & Company’s Motion to Compel.
The parties apparently concede that in 1999, Deutsche Telekom hired Rothschild en
Rule 45(a)(1)(C) of the Federal Rules of Civil Procedure generally provides that a subpoena may be issued directing a non-party “to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person.” This provision should be read in conjunction with Fed. R.Civ.P. 26 and 34. See McLean v. Prudential S.S. Co.,
For purposes of Fed.R.Civ. 34, documents are deemed to be in a party’s possession, custody or control if that party has actual possession, custody or control of the materials “or has the legal right to obtain the documents on demand.” Resolution Trust Corp. v. Deloitte & Touche,
Klesch argues that Rothschild (Denver) is subject to personal jurisdiction in this forum and has “control” over the requested documents by virtue of its affiliation with N.M. Rothschild & Sons Limited (United Kingdom) and Rothschild GmbH (Germany). Plaintiff cites N.M. Rothschild & Sons Limited’s Annual Report and website which touts Rothschild’s “world presence” as evidenced by “over 40 offices in more than 30 countries and ... more than 2,000 people around the world.” See N.M. Rothschild & Sons Limited Annual Report 2002, attached as Exhibit E to Klesch & Company’s Motion to Compel. As further support for its motion, Klesch relies upon the unpublished decision in Dietrich v. Bauer,
The record before the court dispels any notion that Rothschild (Denver) has the requisite control over its affiliated companies or the subject documents. Rothschild (Denver)’s business involves natural resource companies based in North and South America. If N.M. Rothschild & Sons Limited (United Kingdom) places a loan based upon a referral from Rothschild (Denver), the Denver company receives a commission. However, Rothschild (Denver) has no authority to enter into a loan agreement on behalf of N.M. Rothschild & Sons Limited (United Kingdom) nor the authority to create any obligation binding on the London company. The Denver entity has no ownership interest in its sister companies. Cf. In re Citric Acid Litigation,
Separate declarations submitted by managing directors of Rothschild GmbH (Germany) and N.M. Rothschild & Sons Limited (United Kingdom) also disclaim Rothschild (Denver)’s control over documents in the possession of its sister companies. Both companies insist that Rothschild (Denver) had no connection or involvement with the Deutsche Telekom engagement, or with services provided to Deutsche Telekom. Cf. Gerling In’t Ins. Co. v. Commissioner,
I conclude that Klesch has not sustained its burden of showing that Rothschild (Den
II. Defendant’s Motion to Issue Subpoena
Defendant Liberty Media’s motion asks this court to issue a subpoena pursuant to 28 U.S.C. § 1783, requiring a non-party, Warren Mobley, to appear at a deposition. The parties do not dispute that Mr. Mobley is a United States citizen currently residing in Frankfurt, Germany. Liberty Media contends that Mobley has first-hand knowledge of facts relevant to the parties’ claims and/or defenses arising out of the alleged partnership and attempted acquisition of German regional cable networks. The Complaint alleges, in part, that in 1999, Klesch had acquired through a bidding process one of Deutsche Telekom’s regional cable networks, as well the exclusive right to negotiate for the purchase of two other regional networks. See Complaint at ¶2. According to Klesch,
After months of reviewing and analyzing voluminous materials, visiting various sites throughout Germany and meeting with numerous Telekom executives and government regulators to evaluate the networks, Telekom granted Klesch the exclusive negotiation rights to acquire the network for the Hessen region, comprised of approximately 1.3 million cable subscribers (the “Hessen network”). Thereafter, Klesch successfully developed a syndicate of investors to fund the acquisition of the Hessen network and a post-acquisition business strategy, and on or about March 31, 2000, Klesch and Telekom agreed that Klesch could acquire 65% of the Hessen network, with Telekom retaining a 35% residual stake. Klesch’s successful acquisition of the Hessen network placed it in a highly favorable position to acquire more the available networks.
See Plaintiff Klesch’s Statement of Claims in Amended Scheduling Order, at 2-3. Klesch also has stated that its “successful negotiation of the Hessen Acquisition process resulted in, among other things, an unprecedented working relationship with the involved Tele-kom executives and regulators and substantially enhanced its ability to pursue the acquisition of additional regional networks.” See Defendant’s Motion to Issue a Subpoena, at 2 (quoting Klesch’s Corrected Supplemental Response to Interrogatories at 8).
Liberty Media claims that beginning in early 2000, Warren Mobley provided consulting services to Klesch in connection with efforts to raise funds to acquire regional cable assets from Deutsche Telekom. Mob-ley later became the Chief Executive Officer of eKabel, the company ultimately formed to operate the Hessen regional cable network. Gary Klesch served as Chairman of the Board of eKabel. Liberty Media maintains that Mobley has personal knowledge of information relevant to
Klesch’s allegations concerning (1) the purported success of its business model for eKabel; (2) the economic performance of eKabel; (3) Gary Klesch’s performance as Chairman of the Board; (4) Gary Klesch’s working relationship and alleged influence over Deutsche Telekom executives; (5) Klesch’s knowledge of an understanding of the German broadband cable industry; (6) Klesch’s efforts to use its eKabel ownership position as a means of attracting equity investors for other cable regions; and (7) the capital markets generally in early 2001 and the resulting effect on eKabel.
See Defendant’s Motion to Issue a Subpoena, at 4-5. During the hearing on June 5, 2002, defense counsel advised this court that Mr. Mobley was willing to participate in a deposition, but only if his presence was compelled by subpoena. The court also notes that Mr. Mobley has not filed any opposition to Liberty Media’s pending motion.
Plaintiff argues in opposition that Mobley has no first-hand knowledge of the negotiations or partnership between Klesch and Lib
Defendant Liberty Media seeks relief pursuant to the Walsh Act of 1964, 28 U.S.C. § 1783(a), which provides, in pertinent part, that
[a] court of the United States may order the issuance of a subpoena requiring the appearance of a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country ... if the court finds that particular testimony ... is necessary in the interest of justice, and ... if the court finds, in addition, that it is not possible to obtain his testimony in admissible form, without his personal appearance
The decision to issue a subpoena under this statute is left to the sound discretion of the court. In re Thompson,
It is undisputed that Mobley is a United States national. Plaintiff Klesch has presented no evidence that would refute Defendant’s representation that it is not possible to obtain the deponent’s testimony without a subpoena issued by this court. Thus, the pivotal issue is whether Mobley’s testimony “is necessary in the interest of justice.”
I conclude that the “interest of justice” element must be considered in light of the circumstances of the particular case and, more importantly, the posture of the case when the issue arises. Here, the parties are embroiled in protracted discovery. The court has well-established authority to regulate discovery procedures to promote the interests of justice. For example, Fed. R.Civ.P. 26(d) states that a court may regulate the sequence and timing of discovery “in the interests of justice.” Similarly, Fed. R.Civ.P. 26(c) authorizes the court to issue any protective “which justice requires.” Such a protective order may be necessary to protect a person or party from annoyance, embarrassment, oppression or undue burden. Here, Plaintiff offers nothing more than a bald assertion that the requested subpoena will “harass” Mr. Klesch. Cf. Grinnell Corp. v. Hackett,
Moreover, this court is mindful that the discovery procedures in the Federal Rules of Civil Procedures seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information. United States ex rel. Schwartz v. TRW, Inc.,
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed. R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.
Horizon Holdings, L.L.C. v. Genmar Holdings, Inc.,
Plaintiffs objections would be no more persuasive if submitted in the form of a motion for protective order. A court may issue a protective order, pursuant to Fed. R.Civ.P. 26(c), upon a showing of “good cause.” However, that standard is not satisfied by conclusory statements. Rather, the party seeking a protective order must show that disclosure will result in a clearly defined and serious injury to that moving party. Exum v. United States Olympic Committee,
Finally, I note that if Defendant Liberty Media had the ability to serve a deposition subpoena on Warren Mobley pursuant to Fed.R.Civ.P. 45, Kleseh would have no standing to object to or challenge that subpoena in the absence of a personal right or privilege. See Smith v. Midland Brake, Inc.,
Accordingly, for the foregoing reasons, I find that Defendant Liberty Media has demonstrated that Mobley’s deposition is necessary in the interest of justice and that it is not possible to obtain his testimony in admissible form, without Mobley’s personal appearance. The court will grant Defendant’s motion and issue an order authorizing the issuance of a subpoena directing that Mob-ley’s deposition proceed at a time and place convenient for counsel for the parties and the deponent. Defendant Liberty Media shall tender with the subpoena the sum of $12,000, which is an estimated amount sufficient to cover the deponents estimated necessary travel and attendance expenses. See 28 U.S.C. § 1783(b).
Notes
. The district court in Dietrich emphasized that it had personal jurisdiction over the parent corporation that had control over the relevant documents. Dietrich v. Bauer, 2000 WL 1171132, *4 (S.D.N.Y.2000). While not necessary to the court’s decision, I find little, if any evidence, in the record that would suggest N.M. Rothschild & Sons Limited (United Kingdom) or Rothschild GmbH (Germany) is "doing business” in Colorado sufficient to satisfy the minimum due process requirements for personal jurisdiction. Cf. Hydraulics Unlimited Mfg. Co. v. B/J Mfg. Co.,