United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
Plaintiff Tank Connection, LLC alleges that its former employee, Defendant Haight, misappropriated confidential and trade secret information before going to work for a competitor, former "relief defendant" USA Tank Sales & Erection Company, Inc. ("USA Tank"). This matter is before the Court on Plaintiff's Motion to Compel Compliance Production Subpoena to a Non-Party (ECF No. 117). Plaintiff requests an order under Fed.R.Civ.P. 45(d)(2)(B)(i) compelling non-party USA Tank to produce documents requested in the Subpoena to Produce Documents served on December 26, 2014. For the reasons set forth below, the motion is granted in part and denied in part.
I. Relevant Procedural History
On December 26, 2014, Plaintiff served a Subpoena to Produce Documents, Information, or Objects ("Subpoena"), commanding USA Tank to produce the ten categories of documents described in Attachment A. The date specified in the Subpoena for compliance was January 13, 2015. USA Tank served its responses and objections to the Subpoena on January 13, 2015. On January 22, 2015, Plaintiff's counsel attempted to contact USA Tank's counsel to discuss the objections by calling and then sending the following email:
This follows my voice mail earlier this morning. The purpose of the call was to discuss the objections of [USA Tank] and see if there is a way to get the documents sought, or most of them, without motion practice. Call at your convenience, but this week if possible. Neither Holly nor I will be in the office Monday, and a motion to compel must be filed by Monday to meet the discovery deadline.
On January 23, 2015, Plaintiff filed the instant motion.
On February 18, 2015, the Court held a telephone Status Conference and Motion Hearing on the pending motion. The Court ordered Plaintiff and subpoenaed party USA Tank to confer regarding the issues raised in Plaintiff's motion. At the conference, the Court provided general observations and comments regarding the ten document requests contained in the subpoena to aid the conferring process. Plaintiff was to advise the Court in its reply regarding the specific document requests and objections remaining in dispute after conferring with USA Tank.
On February 23, 2015, Plaintiff filed its Reply (ECF No. 127) in which it advised that counsel had conferred and were able to reach a tentative agreement on all issues, subject to approval by USA Tank. Plaintiff further advised that in the event that counsel's tentative agreements were rejected or altered by USA Tank, the Court's ruling would be necessary on the documents identified in Subpoena Request Nos. 1, 2, 3, 5, 6, and 7; no ruling would be necessary as to Subpoena Request Nos. 4, 8, 9, and 10 because Plaintiff agreed to exclude them from the subpoena. The Court thereafter ordered Plaintiff to advise on or before March 16, 2015, whether a ruling on its Motion to Compel Compliance with Production Subpoena to a Non-Party would be necessary.
On March 13, 2015, Plaintiff advised the Court that Plaintiff and USA Tank agreed on the documents to be produced by USA Tank. He also advised the Court of an order entered by the Northern District of Illinois staying until May 19, 2015, all pending litigation in which former relief defendant, USA Tank was involved, specifically identifying this case. Given this development, the Court indicated to the parties it would hold Plaintiff's motion in abeyance until after the May 19, 2015 stay expiration date.
At the June 4, 2015 telephone Status Conference, the parties advised the Court that the Northern District of Illinois litigation, which had stayed litigation involving USA Tank, had concluded. The parties have also advised that a ruling is necessary on Plaintiff's Motion to Compel Compliance with Production Subpoena. Accordingly, the Court is now ready to rule on the motion.
II. Duty to Confer
USA Tank originally objected to Plaintiff's motion on the grounds that Plaintiff had failed to confer prior to filing the motion, as required by Fed.R.Civ.P. 37(a)(1) and D. Kan. 37.2. At the February 18, 2015 telephone Status Conference, the Court ordered Plaintiff and subpoenaed entity USA Tank to confer regarding the issues raised in Plaintiff's Motion. Plaintiff has subsequently satisfied the Court that it has met its duty to confer requirement. The Court will not deny Plaintiff's motion on this basis.
III. Timeliness of USA Tank's Objections
Plaintiff argues that USA Tank's objections are untimely under Fed.R.Civ.P. 45 because they were not filed within the earlier of 14 days after service of the subpoena or the time specified for compliance. USA Tank concedes that its objections to the subpoena were not filed within 14 days after service (including the three additional days allowed under Rule 6(d)), but were one day late. It points out that it filed its objections on the date specified in ...