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Magna Mirrors of America, Inc v. Pittsburgh Glass Works LLC

October 15, 2012

MAGNA MIRRORS OF AMERICA, INC.,
PETITIONER,
v.
PITTSBURGH GLASS WORKS LLC,
RESPONDENT, 3M COMPANY,
PARTY IN INTEREST,



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED RELATED TO MEMORANDUM ORDER RE: MOTION TO COMPEL (DOC. NO. 1)

I. Introduction

Currently before the Court is Magna Mirrors of America, Inc.'s ("Magna's") Motion to Compel (with supporting Brief) Pittsburgh Glass Works, LLC ("PGW") to Produce Documents. Doc. Nos. 1 and 2. On July 24, 2012, Petitioner Magna issued a subpoena to Respondent PGW seeking the production of various documents. Doc. No. 2-2. The subpoena issued by Magna relates to a pending patent infringement case in the Eastern District of Michigan, to which PGW is not a party. After careful consideration of the Motion to Compel and Brief in support thereof (Doc. Nos. 1 and 2), PGW's Brief in Opposition (Doc. No. 4), and all of the relevant documents in the underlying case, Magna's Motion to Compel (Doc. No. 1) will be GRANTED in PART and DENIED in PART.

II. Standard of Review

Rule 45 of the Federal Rules of Civil Procedure provides, in pertinent part, that "[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena."

Fed.R.Civ.P. 45(c)(1). Rule 45 also provides that the Court "shall quash or modify the subpoena if it . . . subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iv).

In general, a party may obtain discovery of any non-privileged matter that is relevant to a claim or defense of any party. Fed.R.Civ.P. 26(b)(1). The Court may limit discovery when justice requires "to protect a party or person from . . . undue burden or expense." Fed.R.Civ.P. 26(c).

III. Discussion

A. There is No Requirement for a Meet and Confer

PGW first argues that the Motion to Compel (Doc. No. 1) fails to comply with Fed.R.Civ.P. 37(a)(1) because there is no written certification that Magna conferred, or attempted to confer, in good faith, with PGW in an attempt to obtain the documents without Court action. PGW avers that no meet and confer has occurred to date. Thus, as a threshold matter, the Court must decide whether a subpoena issued to a third party under Fed.R.Civ.P. 45 requires that a meet and confer occur pursuant to Fed.R.Civ.P. 37(a)(1). Although there is a split on the issue, District Courts within the Third Judicial Circuit have held that subpoenas issued pursuant to Rule 45 do not have to comply with the provisions of Rule 37. See McAleese v. Owens, 1991 WL 329930, *4 (M.D. Pa. Dec. 5, 1991)*fn1 (McClure, J.) (citations omitted); see also Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975); but see In Re Subpoenas to Prof. Sales & Mktg Group, Inc., 2010 WL 1489912 (N.D. Ill. Apr. 9, 2010).

The wording of Fed.R.Civ.P. 37(a)(3) supports this holding. Rule 37(a)(3) states that: A party seeking discovery may [move to compel] if:

(i) a deponent fails to answer a question asked under Rule 30 or 31;

(ii) a corporation or other entity fails to make a designation under Rule ...


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