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In re Motion to Quash Deposition Subpoena to Wagar

December 13, 2006

IN RE MOTION TO QUASH DEPOSITION SUBPOENA TO LANCE WAGAR
CORPORATE EXPRESS OFFICE PRODUCTS, INC., PLAINTIFF,
v.
JAMES C. GAMACHE, BRIAN OLAS, AND W.B. MASON COMPANY, INC., DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

MEMORANDUM-DECISION and ORDER

A Subpoena, dated September 22, 2006, was served upon Lance Wagar compelling him to attend a deposition, which was scheduled for October 3, 2006, and to produce documents. Dkt. No. 7, Mem. of Law at ¶ 11; Dkt. No. 1, Mot. to Quash, Ex. C. Subpoena. Wagar did not comply with the dictates of the subpoena and, instead, filed a Motion to Quash the Subpoena. Dkt. No. 1, Mot. to Quash, with Exs. (A-D) & Prelim. Statement. In response to this Motion, Defendants Gamache, Olas and W.B. Mason Company, Inc. (hereinafter W.B. Mason),*fn1 filed a Cross-Motion compelling Wagar, a non-party deponent in a case pending before the United States District Court for the District of Maine, to be deposed and produce documents. Dkt. No. 7, Cross-Mot., dated Nov. 10, 2006, with Four Attorney Decls., & Ex. A. On or about November 20, 2006, Wagar filed an Opposing Brief to the Cross-Motion to Compel, along with another Declaration. Dkt. No. 8, Brief & Lance Wagar's Decl., dated Nov. 20, 2006. Shortly thereafter, on November 22, 2006, Defendants filed a Reply Brief with more exhibits. Dkt. No. 9, Defs.' Reply Mem. of Law. Based upon the discussion to follow, Wagar's Motion to Quash is denied and Defendants' Motion to Compel is granted in part and denied in part.

I. BACKGROUND

A. The Maine and New Jersey Litigations

The genesis of our discovery matter begins with an on-going, long standing legal disagreement between Corporate Express Office Products, Inc., (hereinafter CEOP) and W.B. Mason, who are direct and hostile competitors; this disagreement has visited several courts.*fn2 The overarching complaint by CEOP against W.B. Mason is that it is, and has been, interfering with CEOP's business by raiding their employees, employing other dilatory practices, and convincing CEOP's employees that have joined W.B. Mason to ignore the employee's non-competition, non-solicitation and confidentiality agreements with CEOP. Dkt. No. 1, Ex. A, Maine Compl., dated June 12, 2006, at ¶¶ 1-3. By inducing CEOP's sales workforce to defect to W.B. Mason, CEOP alleges that W.B. Mason's motivation for such inducement is to acquire CEOP's proprietary contacts. Id. at ¶ 4. For example, in November 2005, eighteen CEOP employees defected from

CEOP and joined the ranks of W.B. Mason. Id. at ¶ 7. One of those eighteen employees was Lance Wagar, the subject of our Subpoena. Id. As employees of W.B. Mason, CEOP claims that W.B. Mason "tacitly, if not expressly, expected and encouraged [former CEOP employees] to violate their restrictive covenants by sharing [] confidential proprietary information and soliciting [CEOP] customers in order to justify their guaranteed salaries and thereby enrich Mason." Id. at ¶ 12.

Apparently the New Jersey case was commenced first, but both the Maine and New Jersey Litigations arise generally out of the same legal contentions. See supra n. 2; Dkt. No. 7, Stephen W. Rider, Esq., Aff., dated Nov. 10, 2006, at ¶ 5. Ostensibly Wagar, when initially employed by CEOP, signed a non-compete, confidentiality agreement before briefly joining W.B. Mason. Dkt. No. 1, Wagar Decl., at ¶ 2. At some juncture prior to this Motion, Wagar re-united with CEOP and is currently employed by them. Id. at ¶¶ 2, 3 & 5. "Earlier this year [2006]," the New Jersey Litigation was commenced by W.B. Mason challenging the validity of CEOP's non-compete agreements with its former employees, and likewise involved claims by CEOP of tortious interference with a contract by W.B. Mason and breaches of Wagar's and five other former employees' non-compete, confidentiality agreements with CEOP. Id. at ¶ 2; Wagar's Prelim. Statement. at p. 4; Dkt. No. 7, Mem. of Law, at ¶¶ 15 & 16. In the New Jersey case, from March 14, 2006 to July 28, 2006, Attorney Stephen W. Rider and the law firm of McCarter & English represented Wagar while Nixon Peabody represented W.B. Mason. Wagar's Prelim. Statement at p. 4; Dkt. No. 7, Mem. of Law at ¶ 17, Rider's Aff., at ¶ 5.

Wagar asseverates that he shared many confidences with Attorney Rider about the subject matter of the New Jersey Litigation and knew that Attorney Rider worked closely with W.B. Mason's attorneys, Nixon Peabody, in defending the lawsuit. Dkt. No. 1, Wagar's Decl., at ¶ 3.

Seemingly, Wagar and W.B. Mason may have had a joint defense agreement of strategy. Id; Dkt. No. 7, Mem. of Law at p. 9. He also avers that in light of this united defense strategy, Wagar conferred with Gregg Rubenstein and met Deborah L. Thaxter, both of counsel to Nixon and Peabody. Wagar Decl. at ¶¶ 3 and 4. In order to address a motion to dismiss, it appears that Attorney Rubenstein prepared Wagar's certifications,*fn3 and it is Wagar's recollection that he conversed with Rubenstein on at least ten occasions, discussing the motion and the issues of the case. Id. at ¶ 3. Wagar suffers under the belief that Rubenstein, in addition to Stephen Rider, was one of his lawyers. Id. Evidently, Wagar and the other Defendants in the New Jersey Litigation attended a meeting, possibly a legal strategy conference, in which Attorney Thaxter led segments of the discussion. Id. at ¶ 4. Later in the meeting she introduced herself to Wagar and left him with the impression that she and Nixon Peabody were working very closely with his attorney, Rider. Id.

All of the above factual contentions made by Wagar are fervently disputed by Nixon Peabody's counsel and Rider. See Dkt. No. 7, Aff. of Rider, Decls. of Rubenstein, & Deborah L. Thaxter, Esq., dated Nov. 10, 2006.

After Wagar reunited with CEOP, CEOP's claims against him were dismissed, Attorney Rider was discharged as Wagar's counsel, and Wagar began to confer extensively with CEOP's attorney on various legal actions between W.B. Mason and CEOP. Wagar Decl. at ¶ 5; Dkt. No. 7, Mem. of Law, at ¶ 22.

In terms of the Maine Litigation, Defendants Gamache and Olas are employees previously recruited by W.B. Mason from CEOP. Dkt. No. 1, Ex. A. Maine Compl. Their erstwhile employer alleges that both of these Defendants, prior to their departure from CEOP, executed non-competition, non-solicitation and confidentiality agreements, which they have subsequently breached while serving in the employment of W.B. Mason. Id. at ¶¶ 30-70.*fn4 In reference to W.B. Mason, CEOP alleges, inter alia, that its direct competitor induced Gamache and Olas to breach their agreements with CEOP in order to gain access to highly confidential trade secrets and to solicit CEOP's client base. See generally Maine Compl.*fn5

Wagar is not a party to the Maine Litigation which is in the pre-litigation stage and where CEOP intends on seeking a preliminary injunction. Dkt. No. 7, Mem. of Law at ¶¶ 3 & 10. Since the line-up of attorneys is a factor in our discussion, we note that the law firm of Nixon Peabody, along with Stephen Rider, Esq., represent Defendants Gamache, Olas, and W.B. Mason in the Maine Litigation.

II. DISCUSSION

A. The Subpoena

As stated above, on September 27, 2006, Defendants served a subpoena upon Wagar for his testimony, along with a Document Demand which seeks ten categories of documents. Dkt. No. 1, Ex C., Subpoena; Dkt. No. 7, Mem. of Law at ¶ 11. The deposition was initially scheduled for October 3, 2006, and may have been adjourned to October 24, 2006, however this Motion to Quash interceded and precluded the actual deposition. Id. at ¶ 12.

Wagar raises numerous challenges to the Subpoena but he avers that he has limited knowledge of Defendants Gamache and Olas, had limited professional intercourse with either, and may have spoken to Olas on only two occasions. See Dkt. No. Prelim. Statement. He further avows that he has no knowledge of the terms of Gamache's and Olas' non-compete agreement. Id. Because of the paucity of his knowledge on either, he contends that he has no relevant information to share with the Maine litigators. Id. In Wagar's view, the ten categories of documents sought by this Subpoena "pertain only to [his] recruitment by and employment with W.B. Mason and his re-employment by CEOP[,]" and thus are irrelevant. Id. at pp. 5-6. The finer legal points he raises concern Rider's and Nixon Peabody's possible conflict of interest in that should they depose him, a deposition may invade the attorney-client privilege and the work product doctrine, and lastly, that enforcement of the Subpoena would impose an undue burden upon him. See generally Prelim. Statement.

As we mentioned above, and at the heart of Wagar's posture, he avers that he shared many confidences with Attorney Rubenstein and provided him with information so that Rubenstein could prepare certain legal submissions on his behalf and he strongly believes that Rubenstein and Thaxter were "acting as one of [his] lawyers in the New Jersey Action." Dkt. No. 8, Lance Wagar Decl., dated Nov. 20, 2006, at ¶¶ 3 & 4.

Defendants bring to the Court's attention that on August 30, 2006, CEOP noticed Leo Meehan, W.B. Mason's CEO, for deposition, in support of the preliminary injunction. Dkt. No. 7, Mem. of Law, at ¶¶ 3 & 4. Meehan objected to the deposition and eventually a conference was convened, on September 13, 2006, by the United States Magistrate Judge to determine the relevancy of Meehan's deposition. Id. at ¶¶ 5 & 6; Dkt. No. 9, Ex. A, Lt., dated Sept. 12, 2006. During the conference, CEOP's counsel represented that "he had a good faith basis for taking Mr. Meehan's deposition based upon statements made by a former W.B. Mason employee that Mr. Meehan 'has participated in meetings involving a discussion of Mason's strategy in dealing with the plaintiff as a competitor that have included matters relevant to issues in this case.'" Dkt. No. 7, Mem. of Law at ¶¶ 5 & 6. Based upon these representations, Meehan's deposition was permitted. Id. It is

Defendants' strong belief that the source of this information was Wagar, the object of the Subpoena. Id. at ¶¶ 7 & 8.*fn6

Challenging Wagar's averments that Nixon Peabody, Rubenstein and Thaxter were his attorneys at some juncture in the New Jersey Litigation, Defendants submit several Declarations and Affidavit of their own. Attorney Rider admits that his firm represented Wagar in the New Jersey matter from March 14, 2006 until July 28, 2006, but nothing more. Dkt. No. 7, Rider Aff. at ¶ 5. Moreover, Rider states that "at no time . . . did [he] disclose to anyone at Nixon Peabody [or the law firm of Verrill Dana, LLP] any privileged or confidential information, . . ., sought to depose Mr. Wagar in this or any other action. . . [nor] was Mr. Wagar ever represented by any attorney at Nixon Peabody . . . [or Verrill Dana][.]" Dkt. No. 7, Rider Decl., at ¶¶ 4-9. Contrary to Wagar's asseverations, Attorney Rubenstein states that he did not receive any "confidential information from

Wagar," and what was received was set forth "in the certification he submitted[;]" " [he] never told Mr. Wagar that [he] represented him[;] [and] . . . Stephen W. Rider and the firm of McCarter & English, LLP, have not shared or discussed with [him] confidential information they received from Mr. Wagar." Id., Rubenstein Decl., at ¶¶ 3, 4, & 8. Concurring with Rubenstein, Attorney Thaxter represents that her "introduction to Mr. Wagar lasted only a few minutes . . . [she] never received any confidential information from Mr. Wagar [or Rider] . . . [and] Nixon Peabody has never represented Mr. Wagar[.]" Id., Thaxter Decl., at ¶¶ 3-7. Lastly, Alexia Pappas, of counsel to Verrill Dana LLP, emphatically declares that his Maine law firm has "never represented Lance Wagar . . . spoken to [him] . . . [nor] received any confidential information concerning Mr. Wagar [from anyone at Nixon Peabody LLP or Stephen W. Rider, Esq[.]" Id., Alexia Pappas Decl., dated Nov. 10, 2006, at ¶¶ 2 & 3.

Ostensibly then, Defendants gainsay Wagar's claim of conflict of interest or violation of the Attorney Disciplinary Rules and further submit that Wagar does indeed possess information and has personal knowledge relevant to the Maine Litigation. See generally Dkt. Nos. 7, Mem. of Law & 9, Reply Mem. of Law.

In the context of discovery from a non-party, the vehicle for such compelled disclosure is found in FED. R. CIV. P. 45. The party issuing a subpoena "shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena," thus Federal Rules of Civil Procedure 45(c)(1) places a burden upon the serving party to prove that it has complied with this mandate. In re Subpoena Duces Tecum Served on Bell Comm. Research, Inc., 1997 WL 10919, at *2 (S.D.N.Y. Jan. 13, 1997) (citations omitted). Rule 45 also imposes a burden on the recipient to produce and/or permit inspection and copying within fourteen (14) days after service of the subpoena. FED. R. CIV. P. 45(c)(2)(B); In re Subpoena Duces Tecum Served on Bell Comm. Research, Inc., 1997 WL 10919, at *2 n. 2. A party responding to a subpoena is required to produce documents as they are kept in the ordinary course of the party's business. FED. R. CIV. P. 45(d)(1). If there are objections to the subpoena, either party may seek court intervention. See FED. R. CIV. P. 45(c)(2)(B) (Motion to Compel) & (3)(A) (Motion to Quash). In our case, Wagar initiated this proceeding by bringing a Motion to Quash the Subpoena based upon the grounds that said subpoena requires the disclosure of privileged and protected matters, is unduly burdensome, and not relevant. FED R. CIV. P. 45(c)(3)(A) (iii) & (iv). In doing so, Wagar bears a heavy burden of proof. Irons v. Karceski, 74 F.3d 1262, 1264 (D.C. Cir. 1996) (citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984)). We must, therefore, determine if Wagar has met his burden.

B. Relevancy

Because a subpoena is being used as a discovery device, it is well settled that a court seeking resolution of a discovery dispute within the parameter of the subpoena should refer to the Rules set forth in FED. R. CIV. P. 26-37. One such issue presented to this Court is the relevancy of the testimony and documents being sought by Defendants.

The scope of discovery in federal lawsuits is significant and broad. FED. R. CIV. P. 26(b)(1) states in pertinent part that:

[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action . . . . Relevant information need not be admissible at the trial if the ...


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