United States District Court, E.D. Texas, Sherman Division
NORTH AMERICAN DEER REGISTRY, INC.
DNA SOLUTIONS, INC.
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendant DNA Solutions, Inc.'s
Motion to Quash Deposition Notices and for Protective Order
Preventing Further Discovery (Dkt. #13). After reviewing the
relevant pleadings and motion, the Court finds the motion
should be denied.
2007, North American Deer Registry, Inc. (“Deer
Registry”) engaged DNA Solutions, Inc.
(“DNAS”) to process deer genetic information,
perform matching services, and host a database for Deer
Registry's information, which would be accessible online.
The parties entered into revised agreements in 2013 and 2014
(the “Contract”). As part of the Contract, DNAS
agreed to preserve the confidentiality of Deer Registry's
information and to return such information upon termination
of DNAS's services. On January 1, 2017, Deer Registry
ceased using DNAS to host its registry. Deer Registry claims
that DNAS continues to use the confidential information
thereby violating the Contract's terms and
misappropriating Deer Registry's trade secrets.
January 27, 2017, Deer Registry filed a complaint alleging
Lanham Act violations and unfair competition,
misappropriation of trade secrets, constructive trust, unjust
enrichment, and requesting injunctive relief (Dkt. #1). The
same day, Deer Registry filed a motion to expedite discovery
(Dkt. #4). The Court ordered clarification, which Deer
Registry provided on February 3, 2017 (Dkt. #7). On February
9, 2017, before DNAS had been served or appeared, the Court
granted the motion to expedite discovery and allowed
depositions within fourteen calendar days of its Order (the
“Discovery Order”) (Dkt. #8).
February 13, 2017, Deer Registry served DNAS with deposition
notices for (1) Federal Rule of Civil Procedure 30(b)(6)
witness for DNAS; (2) Dr. Brandt Cassidy, Director of
Operations and Laboratory Director for DNAS; and (3) Debra
Lyon, Director of Client Services and Business for DNAS.
These depositions were noticed for Monday, February 20 and
Tuesday, February 21. On Friday, February 17, 2017, DNAS
filed two motions: a motion to dismiss and compel
arbitration, or in the alternative to transfer venue (Dkt.
#12), and the present motion to quash depositions and for
protective order (Dkt. #13). On February 22, 2017, Deer
Registry filed a response to the motion to quash (Dkt. #15).
Rule of Civil Procedure 26(d)(1) provides that “[a]
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f)”
unless the Court orders otherwise. See also Combat Zone
Corp. v. John/Jane Does 1-2, No. 2:12-cv-00509, 2012 WL
6684711, at *1 (E.D. Tex. Dec. 21, 2012). “An
increasing majority of district courts, including several in
the Fifth Circuit, have adopted a ‘good cause'
standard to determine whether to permit such expedited
discovery.” Id. (collecting cases). “In
a ‘good cause' analysis, a court must examine the
discovery request ‘on the entirety of the record to
date and the reasonableness of the request in light of all
the surrounding circumstances.” St. Louis Grp.,
Inc. v. Metals & Additives Corp., 275 F.R.D. 236,
239 (S.D. Tex. 2011) (citation omitted). The burden of
showing good cause rests on the party seeking the expedited
discovery. Id. at 240. “Moreover, the subject
matter related to requests for expedited discovery should be
narrowly tailored in scope.” Id.
district court may, for good cause, “issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed.R.Civ.P.
26(c). “Rule 26(c)'s requirement of a showing of
good cause to support the issuance of a protective order
indicates that ‘[t]he burden is upon the movant to show
the necessity of its issuance, which contemplates a
particular and specific demonstration of fact as
distinguished from stereotyped and conclusory
statements.'” In re Terra Int'l, Inc.,
134 F.3d 302, 306 (5th Cir. 1998) (quoting United States
v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
makes several arguments in its motion. First, DNAS argues
that the Discovery Order is void because it was entered
before the deadline for DNAS to respond. At this point, DNAS
has responded to the motion and stopped the depositions from
taking place. Any harm from the Discovery Order is now moot.
DNAS argues that the deposition notices violate the
geographic limits of Federal Rule of Civil Procedure 45(c).
This argument is without merit. Depositions of parties and
their officers and managing agents do not require subpoenas.
Fed.R.Civ.P. 45, advisory committee note (2013).
DNAS argues the Discovery Order is void because of a binding
arbitration clause. Deer Registry argues that the arbitration
clause does not cover these claims, and alternatively, that
the American Arbitration Association (“AAA”)
Commercial Rules allow for judicial injunctive relief as an
interim measure. Without deciding whether this case falls
within the arbitration clause, the Court finds that the
arbitration clause is not a ground to quash the depositions.
Commercial Rule R-37 allows a party to request interim
measures from a judicial authority regardless of a binding
arbitration clause. Am. Arbitration Ass'n R. R-37(c)
(2013). An interim measure includes injunctive relief.
Id. R-37(a). The parties are deemed to have made
these rules part of their arbitration agreement whenever they
provide for arbitration by the AAA under its commercial
rules. Id. R-1(a). The Contract's arbitration
clause states: “[T]he parties agree that such dispute
shall be submitted to ...