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Frank Brunckhorst Co v. Michael R. Ihm and

October 23, 2012


The opinion of the court was delivered by: O'neill, J.


Presently before me is nonparty Dietz and Watson's ("D&W") Motion To Quash Or Modify The Subpoenas Issued To Dietz and Watson and Louis J. Eni, Jr. and For a Protective Order, an opposition filed by plaintiff Frank Brunckhorst and a response in support of the motion to quash filed by D&W. For the following reasons I will deny the motion to quash and enter a protective order.


The Motion to Quash was brought in connection with litigation currently pending in the United States District Court for the Southern District of California.*fn1 Plaintiff Frank Brunckhorst Co. is the national distributor for Boars Head Provisions, Co., Inc., which produces delicatessen products. D&W also produces delicatessen products. In the California action, Brunckhorst alleges that the defendants-during their relationship with Brunckhorst-began dealings with, and ultimately entered into a distributorship with, Brunckhorst's competitor D&W. D&W is not a party to the California litigation. On August 19, 2011, Brunckhorst filed a complaint in the United States District Court for the Southern District of California. On September 12, 2011 defendants filed an answer. On December 16, 2011 that Court issued a Scheduling Order governing pretrial deadlines and set a fact discovery deadline of April 16, 2012. On March 2, 2012, that Court issued an order concerning the proposed protective order governing the parties' exchange of confidential information, and addressing the defendants' concerns about giving Brunckhorst access to sensitive information related to defendants relationship with D&W, Brunckhorst's competitor. See No. 11-1883 (S.D. Cal.), Dkt. No. 24. On March 8, that Court issued an Order granting the proposed protective order submitted by the parties. No. 11-1883 (S.D. Cal.), Dkt. No. 27.

The Court in the California litigation has issued numerous rulings regarding discovery disputes and deadlines. On March 9, 2012 that Court issued an Order granting a joint motion for extension of time to file a discovery motion as to all previously issued discovery requests. See No. 11-1883 (S.D. Cal.), Dkt. No. 29. On April 13, 2012 the parties filed another joint motion to extend all pretrial deadlines by five months, asserting that they had good cause for such an extension because "the parties had a dispute over the terms of a protective order governing confidential information, filed a discovery motion on April 9, 2012 and 'have other discovery issues or disputes.'" See No. 11-1883 (S.D. Cal.), Dkt. No. 32. While noting that "discovery disputes are common in modern litigation and do not constitute good cause for the lengthy extension of all pretrial dates," that Court ordered that all fact discovery be completed by July 16, 2012, stating that

"Completed" means that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date. . . . Absent an order of the court, no stipulation continuing or altering this requirement will be recognized by the court.

Id. at 2 (emphasis in original). On April 18, 2012 that Court issued an order denying plaintiff's motion to compel further responses to discovery seeking, inter alia, documents relating to the termination of the business relationship between the parties or "the development of [defendants'] arrangement with D&W" without prejudice because the parties failed to comply with local rules in not conducting an adequate meet and confer. See No. 11-1883 (S.D. Cal.), Dkt. No. 33, ECF p. 1-2 (also noting that defendants' initial disclosures did not comply with Rule 26). On May 10, 2012 that Court issued an order granting the parties additional time to file motions to resolve any remaining discovery matters as the defendants had failed to provide additional documents and information as agreed to at the parties' meet and confer held on April 27, 2012, and thus the parties were unable to determine whether another joint motion regarding discovery was necessary. See No. 11-1883 (S.D. Cal.), Dkt. No. 37, ECF p. 1-2.

On September 10, 2012 Brunckhorst filed an amended complaint adding South Shore Deli Provisions, Inc. as a defendant as to all claims on a theory of successor liability. In the interim, between the Court's May 12 Order and the Order permitting Brunckhorst to file an amended complaint, the parties filed three more motions requesting that the California Court resolve discovery disputes and extend deadlines. See No. 11-1883 (S.D. Cal.), Dkt. Nos. 38-40. On September 26, 2012 the Court in the California action issued an order addressing the two Joint Motions for Determination of Discovery Disputes and directed defendants to produce documents in response to requests that are identical or substantially similar to those requested from D&W in the instant subpoena by October 12, 2012. See No. 11-1883 (S.D. Cal.), Dkt. No. 46. The September 26, 2012 Order also discussed issues of relevance, confidential and sensitive commercial information, defendants' degrees of compliance with discovery requests, and the underlying causes of action. Id. at ECF p. 5-22. On that same day, the California Court issued a second Order regarding discovery. The Court stated that a discovery "schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The "good cause" requirement of Rule 16 primarily considers the diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Id. (internal citation and quotation marks omitted). If the party seeking the modification "was not diligent, the inquiry should end" and the motion to modify should not be granted. Id.

See No. 11-1883 (S.D. Cal.), Dkt. No. 47, ECF p. 2. The Court found that "the parties have not established good cause for another lengthy extension of all case management dates." Id. However, in light of its other Order issued the same day regarding pending discovery production, the Court extended the fact discovery deadline until November 13, 2012 "but only for the purpose of completing depositions. The parties have had plenty of time to complete written discovery. Accordingly, no more written discovery requests may be served in this case without leave of Court." See No. 11-1883 (S.D. Cal.), Dkt. No. 47.

On or after August 14, 2012, Brunckhorst served subpoenas seeking the 30(b)(6) deposition of D&W and the deposition of D&W's President Louis J. Eni, Jr. The subpoena to D&W was accompanied by requests that various documents be produced in connection with the depositions. See No. 12-0217, Dkt. No. 6, Hyman Decl. Ex 2. D&W filed its Motion to Quash on August 28, 2012. No. 12-0217 (E.D. Pa.), Dkt. No. 1.*fn2

D&W objects to the subpoenas as an attempt by Brunckhorst to discover the trade secrets and confidential commercial information of a competitor. D&W also argues that the documents are irrelevant to the claims and defenses in the California litigation. Finally, D&W objects to the subpoenas on the ground that the fact discovery deadline expired before Brunckhorst's service of the subpoenas.

Brunckhorst argues that D&W and Eni are crucial witnesses in the pending action and information concerning defendants' relationship and financial arrangements with D&W is necessary to show whether and to what extent defendants received instructions, directives, incentives or support from D&W to implement the alleged scheme. Brunckhorst asserts that the document requests and deposition topics in the subpoenas were carefully tailored to elicit information concerning D&W's knowledge and support of and participation in defendants' allegedly unlawful conduct and that it does not seek information about D&W's products, financials or generally-applicable policies. Moreover, Brunckhorst asserts that the operation of a protective order in the California case which limits access to confidential D&W information to for use solely for the litigation is sufficient to protect any confidential information or trade secrets that D&W fears will be disclosed. See No. 12-0217 (E.D. Pa.), Dkt. No. 6, ECF p. 14. Brunckhorst further argues that because the new discovery deadline is November 13, 2012, D&W's objection to the subpoeanas based on the expiration of the fact discovery deadline has been rendered moot.


The Federal Rules of Civil Procedure allow the examination of a deponent concerning "any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b). While "the scope of discovery under the Federal Rules is . . . broad, this right is not unlimited and may be circumscribed." Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). Under Fed. R. Civ. P. 26(b)(1), "discovery need not be confined to matters of admissible evidence but may encompass that which 'appears reasonably calculated to lead to the discovery of admissible evidence.'" ...

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