Under Rule 45 of the Federal Rules of Civil Procedure, a person or company with no direct involvement or financial stake in a litigation can suddenly become entrenched in management of discovery obligations. Compliance with Rule 45 subpoenas can subject non-parties to significant burden and expense, especially when—as is often the case—materials requested include electronically stored information. Limited case law and secondary sources on this topic leave non-parties with little guidance on the best way to mount effective challenges to non-party subpoenas, such as moving to quash due to undue burden or to shift costs onto the requesting party. But a recent decision from the Northern District of California and new commentary from The Sedona Conference may help change that.
In Genus Lifesciences v. Lannett Co., 2019 WL 7313047 (N.D. Cal. Dec. 30, 2019), the district court judge quashed a non-party subpoena as unduly burdensome where the plaintiff had not first requested the materials from the defendant. In this matter, Genus Lifesciences sued its competitor, Lannett Company, alleging, inter alia, false advertising and unfair competition in the cocaine hydrochloride nasal spray market.
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