Opposition To Subpoena Filed by Hume

Case 2:17-cv-01104-RSL Document 17 Filed 08/04/17 Page 1 of 15
1 The Honorable Robert Lasnik
7
UNITED STATES DISTRICT COURT
8 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
9
10 Cung Le, Nathan Quarry, Jon Fitch,

Brandon Vera, Luis Javier Vazquez, No. 2:17-cv-01104-RSL
11 and Kyle Kingsbury on behalf of themselves
and all others similarly situated, NONPARTIES MATT HUME AND
12 GROUP ONE HOLDINGS PTE LTD.S
Plaintiffs, OPPOSITION TO MOTION TO
13 COMPEL
v.
14
Zuffa, LLC, d/b/a Ultimate Fighting
15 Championship and UFC,
Noting Date: August 4, 2017
16 Defendant,
17
Matt Hume and Group One Holdings Pte Ltd. Issuing Court: District of Nevada
18 d/b/a/ One Championship,
Underlying Action: Le et al. v. Zuffa,
19 Nonparty Movants. LLC, Civ. Act. No. 2:15-cv-01045-RFB-
PAL
20
21
22
23
24
25
26
27
OPPOSITION TO MOTION TO COMPEL Davis Wright Tremaine LLP
(2:17-cv-01104-RSL) L AW O F FI CE S
4846-7706-8108v.5 0107701-000001 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
206.622.3150 main 206.757.7700 fax
1 I. INTRODUCTION
2 Matt Hume and Group One Holdings Pte Ltd.1 (Group One) oppose Plaintiffs motion
3 to compel the production of Group Ones documents from its employee, Matt Hume, and to
4 compel Mr. Humes attendance at a deposition at which Plaintiffs seek to ask Mr. Hume about
5 these same documents and related information.
6 Plaintiffs cannot obtain Group Ones documents from its employee, Mr. Hume. Group
7 One is a Singaporean company, not subject to jurisdiction in the United States, and to obtain
8 documents from Group One they must follow the procedures adopted by the Hague Convention
9 (a process already underway). In an effort to circumvent that process (and perhaps to obtain
10 discovery from Group One that would not be allowed in Singapore), Plaintiffs are trying to get
11 from Mr. Hume documents and information that they cannot obtain from Group One itself. But
12 Mr. Humes access to Group Ones documents due to his employment does not constitute
13 possession, custody or control under Rule 45. Plaintiffs effort to obtain documents from a
14 foreign nonparty not subject to jurisdiction in the United States is an abuse of the discovery
15 process and harms international comity.
16 For largely the same reasons, Plaintiffs cannot use Mr. Humes deposition to obtain
17 Group Ones confidential information. Mr. Hume has been served with a deposition subpoena
18 in his individual capacity, not as Group Ones corporate designee, and Plaintiffs should not be
19 permitted to use that deposition to launch a fishing expedition into Group Ones internal affairs.
20 And given Mr. Humes exceedingly minor connection to the underlying action, allowing a
21 deposition without any limitation to protect Group Ones interests would impose a substantial
22 burden on both Mr. Hume and Group One. Therefore, even if the Court concludes that
23
1
The subpoenas at issue were directed to Matt Hume, but requested Group Ones confidential and proprietary
24 business information. Although typically only the recipient of a subpoena has standing to assert objections, a
party has standing to challenge a subpoena issued to third parties where its own interests may be implicated.
25 Cabell v. Zorro Prods., Inc., 294 F.R.D. 604, 607 (W.D. Wash. 2013) (quoting Johnson v. Bancorp, No. C11-
02010, 2012 WL 6726523, at *2 (W.D. Wash. Dec. 27, 2012); see also In re C.R. Bard, Inc. Pelvic Repair Sys.
26 Prods. Liab. Litig., 287 F.R.D. 377, 383 (S.D. W.Va. 2012) (defendant had standing to challenge the subpoena
because the third-partys production would result in the disclosure of confidential and proprietary documents).
27 Group One appears through counsel specifically for the purpose of protecting its interest in the information sought
by these subpoenas and does not consent to jurisdiction in this district nor in the United States for any purpose.
(2:17-cv-01104-RSL) - 1 L AW O F FI CE S
206.622.3150 main 206.757.7700 fax
1 Plaintiffs may depose Mr. Hume, the Court should prohibit inquiry into Group Ones
2 competitively-sensitive business information (information they must obtain directly from
3 Group One, using the Hague Convention protocol).
4 The Court should deny Plaintiffs motion to compel.
5 II. BACKGROUND
6 Mr. Hume and Group Ones Motion to Quash contains most of the facts pertinent to this
7 dispute. See Dkt. No. 2 at 3-6. This Opposition sets out only those additional facts necessary
8 to respond to the allegations in Plaintiffs Motion to Compel.
9 Fact discovery in the underlying Nevada litigation was scheduled to conclude on May 1,
10 2017. Dkt. No. 311 in 2:15-cv-1045. Plaintiffs sought an extension to allow them to complete
11 outstanding nonparty discovery and serve new subpoenas on other nonparties. Dkt. No. 363 in
12 id.
13 On June 1, Magistrate Judge Leen held a hearing on Plaintiffs motion (neither Group
14 One nor Mr. Hume had a chance to be heard on the issues at the June 1 hearing). Regarding
15 Plaintiffs desire to conduct discovery from Group One, Magistrate Judge Leen stated:
16 With respect to the list of 17 custodian custodians or document

depositions for subpoena duces tecum that have been served, but
17 not yet responded to, pick five and youll get five of those. So
there will be a limitation, except both sides agree on one
18 [Championship] so they wont count on your five.

19 And with respect to the new discovery, again, Im not -- Im not
going to allow that and except for the one championship
20 discovery of Matt Hume or whatever designee they pick.
21 Dkt. No. 438 in id. at 112:24-113:3; 114:1-4 (emphasis added). The following Minute Order
22 appeared on the docket the day of the hearing:
23 IT IS ORDERED: Plaintiffs Request for an Extension of Time...

414 is GRANTED With respect to the ten third party
24 depositions Counsel will be limited to their choice of four
depositions out of the remaining parties on the list. With respect
25 to the 17 third parties listed as being served with subpoenas duces
tecum, Counsel will be limited to One Championship and their
26 choice of an additional five parties.
27
206.622.3150 main 206.757.7700 fax
1 Dkt. No. 422 in id. (emphasis added). The list was a list of ten third parties in a Joint Agenda
2 for the hearing, which did not include Group One or Mr. Hume. See Dkt. No. 418 at 4-5 in id.
3 On June 7, 2017, Plaintiffs counselKevin Rayhillasked Mr. Hume and Group
4 Ones counselChris Morleyto accept service of deposition and document subpoenas to Mr.
5 Hume and a document subpoena to Group One. Morley Decl. 2. Mr. Morley noted that the
6 Minute Order did not permit subpoenas to Mr. Hume.2 Id. Mr. Morley also stated that
7 although Judge Leen had permitted Plaintiffs to seek discovery from Group One, as a nonparty
8 foreign corporation it could only be served with discovery requests pursuant to the Hague
9 Convention on the Taking of Evidence Abroad. Id.
10 On June 13, Mr. Rayhill sent Mr. Morley those subpoenas by email and again asked if
11 he would accept service. Dkt. 3, Ex. 8. Mr. Rayhill claimed that [t]he transcript from the
12 June 1 hearing clearly shows that the court approved serving deposition and document
13 subpoenas on One Championship and Matt Hume and included the portions of the hearing
14 transcript cited above. Id. Because the transcript referred to a document subpoena to Group
15 One and appeared to discuss a Rule 30(b)(6) deposition of a Group One designee, and
16 because the courts Minute Order unambiguously permitted a document subpoena only to
17 Group One without mentioning any form of discovery from Mr. Hume, Mr. Morley responded
18 that the court had not permitted discovery from Mr. Hume and requested that Plaintiffs seek
19 clarification or reconsideration of the Minute Order before serving Mr. Hume with discovery.
20 Dkt. 3, Ex. 11.
21 Mr. Rayhill and Mr. Morley subsequently agreed that Mr. Rayhills June 13 email
22 would constitute service of the subpoenas to Mr. Hume, that Mr. Hume did not waive his
23 objections to the subpoenas, including that the court had not permitted nonparty discovery from
24 Mr. Hume, and that Mr. Humes objections would be timely if received by June 30. Morley
25 Decl. 4, Ex. A.
26
2
27 Mr. Rayhill declares that Mr. Morley stated that the Court did authorize a document subpoena to Mr.
Hume. Dkt. 3 at 10. That is false. Morley Decl. 2.
206.622.3150 main 206.757.7700 fax
1 On June 20, Plaintiffs moved for clarification of the June 1 Minute Order. Dkt. No. 436
2 in 2:15-cv-1045. Plaintiffs did not serve counsel for Mr. Hume and Group One with their
3 motion, nor was Mr. Hume or Group One given an opportunity to be heard on the motion.
4 Morley Decl. 5. Plaintiffs request for clarification did not attach copies of the subpoenas or
5 discuss the specific documents or information sought from Mr. Hume. See Dkt. No. 436 in
6 2:15-cv-1045.
7 That same day, consistent with Hague Convention procedures for obtaining discovery
8 from foreign nonparties, Plaintiffs moved for a letter of request from the District Court in
9 Nevada to the Supreme Court of Singapore, seeking its cooperation in obtaining Group Ones
10 quarterly financial statement. Dkt. No. 433 in id.
11 On June 29, Magistrate Judge Leen issued an order clarifying that the court authorized
12 service of a [deposition] subpoena and subpoena duces tecum on Matt Hume. Dkt. No. 442 at
13 1, in id. Judge Leen did not evaluate the substance or scope of the subpoenas or pass on any
14 other potential objections Mr. Hume may have, nor did she grant Plaintiffs request for costs
15 and fees. Id.
16 III. ARGUMENT
17 Plaintiffs in the Nevada action do not dispute that Group One is a nonparty foreign
18 corporation not subject to jurisdiction in the United States. They admit their subpoenas to Mr.
19 Hume seek Group Ones documents and information. Their Motion to Compel ignores that a
20 corporations documents may not be obtained by subpoena to an employee who enjoys access
21 to the documents only within the scope of his employment. Plaintiffs efforts to obtain a
22 nonparty foreign corporations documents from its sole U.S. employee would burden the
23 corporation, its employee, the foreign countrys interest in controlling discovery within its
24 borders, and the United States interest in maintaining amicable relationships with foreign
25 countries.
26
27
206.622.3150 main 206.757.7700 fax
A. Plaintiffs Must Seek Group Ones Documents and Information from

1 Group One.
2 Plaintiffs subpoenas are only nominally directed to Mr. Hume. Plaintiffs admit the real
3 target of their discovery efforts is Group Ones confidential and trade secret documents. The
4 subpoena specifically seeks documents relating to Group Ones corporate structure, ownership,
5 broadcast and merchandising agreements, and other categories of documents relating to Group
6 Ones business activities. Dkt. No. 2-1, Ex. D, Requests 1, 2, 6, 7. And Plaintiffs expressly
7 state in their motion that they are seeking Group Ones documents and information. Dkt. No. 1
8 at 6 (The subpoena seeks documents including One Championships financial data . . . .);
9 at 11 (One Championships revenues, the purse amounts it pays its fighters, and the quality of
10 the fighters it signs are all relevant.). Plaintiffs even concede that their subpoena requires
11 compliance from Group One. Id. at 15 ([T]he burden to One Championship of procuring and
12 producing [the subpoenaed documents] will be minimal.).
13 They nevertheless now argue it is untrue that they are trying to obtain discovery from
14 Group One and contend they are only seeking information in Mr. Humes possession, custody,
15 or control. Dkt. No. 1 at 12. But the law does not allow Plaintiffs to subpoena from Mr.
16 Hume what they cannot obtain by subpoena to his employer.
17 Rule 45 allows a party to command a person by subpoena to produce documents in
18 that persons possession, custody, or control. Fed. R. Civ. P. 45(a)(1)(A)(iii). A party has
19 control over documents in the custody of another only if it has the legal right to obtain
20 documents upon demand. In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999)
21 (quoting United States v. Intl Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th
22 Cir. 1989)). That a party has physical access to documents or the practical ability to obtain the
23 requested documents is irrelevant. Citric Acid, 191 F.3d at 1107 (citing Intl Union, 870 F.2d
24 at 1453-54).
25 Mr. Hume does not have possession, custody or control of any Group One
26 documents. He does not have any Group One documents downloaded on his personal hard
27 drive, nor does he have hard copies of Group Ones documents. Hume Decl. at 2-3. Rather,
206.622.3150 main 206.757.7700 fax
1 he has access to certain confidential Group One documents contained in a work email account
2 that Group One owns. Id. at 3. His access to that email account is at Group Ones discretion
3 and for its benefit. Id. Group One could revoke Mr. Humes access to the account at any time
4 and Mr. Hume would have no legal recourse. Id. Group One has the legal right to obtain these
5 documents on demand and to direct Mr. Hume regarding their use or disposition, but Mr. Hume
6 has no corresponding right. Id.
7 Courts confronted with similar situations decline to order production by an employee of
8 his employers documents. See, e.g., In re Grand Jury Subpoena, 646 F.2d 963, 969 (5th Cir.
9 1981) (an employees mere access to his employers documents is not possession, custody
10 or control); Lopez v. Chertoff, Case No. CV 07-1566-LEW, 2009 WL 1575209, at *3 (E.D.
11 Cal. June 2, 2009) (Individual federal employees do not have custody or control over
12 government documents.); Lowe v. District of Columbia, 250 F.R.D. 36, 39 (D.D.C. 2008)
13 (government employee cannot on [her] own initiative remove government files and provide
14 them to a third party); Solis v. Bruister, Case No. 4:10-CV-77-DPJ-FKB, 2012 WL 12829683,
15 at *9 (S.D. Miss. Dec. 26, 2012) (request for government documents must be made by a
16 properly propounded discovery request to [the government agency], not [its employee]
17 personally); Joiner v. Choicepoint Servs., Inc., Case No. CIV 105CV321, 2006 WL 2669370,
18 at *4 (W.D.N.C. Sept. 15, 2006) (quashing a subpoena served on corporate employees
19 requesting Defendant corporations documents).
20 The decision in In re Kuntz, 124 S.W.3d 179 (Tex. 2003), is particularly instructive.3 In
21 that case, the respondent was a general manager and minority owner of a third-party company.
22 Id. at 182. The respondent was served with discovery seeking certain documents the company
23 maintained in the course of its business. Id. It was undisputed that the respondent had
24 unrestricted access to the documents by virtue of his employment, but was prohibited from
25 disclosing the documents to third parties. Id. The court concluded that [the respondents]
26
3
27 The court in Kuntz was construing a state rule that, like its federal counterpart, required parties to produced
materials in their possession, custody or control. Tex. R. Civ. P. 192.3(b).
206.622.3150 main 206.757.7700 fax
1 mere access to the relevant letters of recommendation does not constitute physical possession
2 of the documents under the definition of possession, custody, or control. Id. at 184.
3 Plaintiffs base their argument on broad recitals of the general standard that a party may
4 be compelled to produce documents in his possession or those he has a legal right to obtain on
5 demand. Dkt. No. 1 at 13. But general propositions do not decide concrete cases. Lochner
6 v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). The cases on which Plaintiffs
7 relyMeeks v. Parsons, No. 1:03-CV-6700-LJO-GSA, 2009 WL 3003718 (E.D. Cal. Sept. 18,
8 2009) and Herring v. Clark, No. 1:05-CV-00079-LJO, 2011 WL 2433672 (E.D. Cal. June 14,
9 2011)contain no meaningful analysis relevant to this case. In Meeks, the court did not
10 discuss the issue of possession, custody, or control beyond the general language quoted by
11 Plaintiffs. In Herring, the court concluded that the warden of a state prison was the prisons
12 head authority and had control over certain documents, because [a] warden of a state prison
13 within [California Department of Corrections and Rehabilitation] certainly has the right to
14 demand any records on an inmate within the facility that he oversees. Herring, 2011 WL
15 2433672, at *5. Neither case is relevant to a subpoena to a non-executive employee of a
16 private corporation who has conditional, temporary access to confidential corporate documents.
17 The consequences of Plaintiffs vast interpretation of possession, custody, or control
18 would be disastrous. Kronenberg v. Baker & McKenzie LLP, 747 F. Supp. 2d 983, 990 (N.D.
19 Ill. 2010) (The soundness of a conclusion may not infrequently be tested by its
20 consequences.). Taken to its logical conclusions, a party could issue a subpoena to any
21 employeea teller at a bank or a secretary at a law firmand obtain all documents that
22 employee can access through his or her employment. Even worse, the employer would not
23 even be entitled to notice and would have no opportunity to protect its interests unless the
24 employee thought to inform it. Rule 45 does not command this absurd result, but instead
25 supports the common sense conclusion that a nonparty corporations documents cannot be
26 obtained through a subpoena to its employee.
27
206.622.3150 main 206.757.7700 fax
B. Plaintiffs Subpoenas Circumvent the Established Method for Obtaining a

1 Foreign Nonpartys Documents
2 Plaintiffs subpoenas attempt to sidestep the established process for obtaining
3 documents from nonparties not subject to jurisdiction in the United States. Group One is not
4 subject to personal jurisdiction in the United States for any matter relating to the Le v. Zuffa
5 lawsuit. See Dkt. No. 2-3, 2. (describing Group Ones lack of contacts with the United
6 States); see also Daimler AG v. Bauman, 134 S. Ct. 746, 76162 (2014). Plaintiffs do not
7 contend otherwise and represent in their motion that they cannot obtain One Championships
8 documents from any other source. Dkt. No. 1 at 15:20-22. Plaintiffs are correct to the extent
9 that they cannot command production from Group One with a Rule 45 subpoena.4 But they
10 can pursue discovery from Group One using the procedures of the Hague Convention on the
11 Taking of Evidence Abroad (the Hague Convention), the purpose of which was to establish
12 a system for obtaining evidence located abroad that would be tolerable to the state executing
13 the request and would produce evidence utilizable in the requesting state. Socit Nationale
14 Industrielle Arospatiale v. United States District Court, 482 U.S. 522, 530 (1987); 23 U.S.T.
15 2555 (the Hague Convention).
16 Plaintiffs are in the process of pursuing that process, yet nevertheless persist in this
17 effort to make an end-run around it. In doing so, Plaintiffs are attempting to avoid Singapores
18 restrictions on the scope of pretrial discovery and dramatically expand the scope of documents
19 they could otherwise seek from Group One. The Hague Convention permits participating states
20 to declare that it will not execute Letters of Request issued for the purpose of obtaining pre-
21 trial discovery of documents as known in Common Law countries. Hague Convention,
22 Article 23. Singapore has made such a declaration and has limited pretrial discovery solely to
23 particular documents specified in the letter of request. See Morley Decl. 6, Ex. B.
24 Plaintiffs are well aware of this limitation: in their motion for a letter of request in the Nevada
25 court, they acknowledged that [t]he Republic of Singapore does not allow open-ended
26 4
A district court . . . must have personal jurisdiction over a nonparty to compel it to comply with a valid
27 discovery request under Federal Rule of Civil Procedure 45. See Gucci Am., Inc. v. Weixing Li, 768 F.3d 122,
141 (2d Cir. 2014).
206.622.3150 main 206.757.7700 fax
1 requests for pretrial discovery. Dkt. No. 433 at 3:14-16 in 2:15-cv-1045. Allowing Plaintiffs
2 to use Rule 45 to seek broad categories of documents from Group One directly undermines
3 Singapores interest in limiting pretrial discovery for foreign proceedings and is an attempt by
4 Plaintiffs to abuse the liberal discovery rules in the U.S. to obtain documents they could not
5 otherwise obtain through the appropriate channels.
6 Plaintiffs circumvention of the Hague Convention procedures also threatens Group
7 Ones legal rights under Singapore law. Group One is a Singaporean company that possesses
8 confidential documents and information that are subject to protections under Singapore law.
9 Because Group One is beyond the jurisdiction of the United States, Plaintiffs request for
10 documents should be resolved first by the Republic of Singapore rather than a United States
11 court. Allowing Plaintiffs to obtain Group Ones documents and information through its sole
12 U.S. employee deprives Group One of an opportunity to protect its rights in the information
13 sought, as contemplated by the Hague Convention. Moreover, the subpoenas would impose an
14 unfair burden on Group One by requiring it to respond to the type of categorical document
15 requests that Singapores laws prohibit.
16 C. Plaintiffs Cannot Use a Deposition of Mr. Hume to Obtain Group Ones

Confidential Information.
17
Plaintiffs cannot use the subpoena duces tecum to Mr. Hume to obtain his employers
18
documents. Likewise, Plaintiffs should not be permitted to use its deposition subpoena to Mr.
19
Hume in his individual capacity to obtain Group Ones confidential information. Just as
20
Plaintiffs cannot obtain Group Ones confidential documents through Mr. Hume, they should
21
not be allowed to obtain the same information by way of a deposition. Plaintiffs refusal to
22
agree to any reasonable limitation on the scope of Mr. Humes deposition makes clear that the
23
purpose of deposing Mr. Hume is not to merely test the statements made in his declaration, but
24
to treat him as Group Ones de facto corporate designee. Indeed, Plaintiffs repeatedly (and
25
incorrectly) mischaracterize Mr. Humes declaration as having been offered on Group Ones
26
27
206.622.3150 main 206.757.7700 fax
1 behalf5 in an apparent attempt to justify deposing Mr. Hume on matters pertaining to Group
2 One. Dkt. No. 1 at 5:22-24, 6:13-15, 11:3-5. But Group One is beyond the jurisdiction of this
3 Court and has not been served with a subpoena for a deposition of its corporate designee.
4 Plaintiffs should not be permitted to shoehorn a Rule 30(b)(6) deposition of a foreign
5 corporation into a deposition of its employee in his individual capacity.
6 D. At a Minimum, the Court Should Prohibit Plaintiffs from Inquiring About

Group Ones Confidential Information In Mr. Humes Deposition.
7
If the Court allows Mr. Humes deposition to proceed, Plaintiffs should be prohibited
8
from inquiring about Group Ones confidential information. Discovery is limited to what is
9
proportional to the needs of the case, Fed. R. Civ. P. 26(b)(1),6 and must not subject[] a
10
person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). To the extent Plaintiffs can obtain
11
any discovery from Mr. Hume, it should be proportional to his limited involvement and should
12
not be used as a fishing expedition into Group Ones confidential business information.
13
Plaintiffs supposed need to depose Mr. Hume is based entirely on the following
14
statement in Mr. Humes declaration:
15
Group One Holdings competes with Zuffa to sign professional
16 MMA fighters. One Championship is not a minor league or
feeder league for the UFC.
17
Dkt. No. 2-1, Ex A at 4; see also Dkt. No. 418 at 7 in 2:15-cv-1045 (Plaintiffs request for an
18
extension of the fact discovery deadline to depose Mr. Hume regarding statements made in his
19
declaration); Dkt. No. 1 at 13:21-24 (justifying discovery based on its assertion that [t]hrough
20
his declaration, Hume has inserted himself as a witness in the Underlying Litigation).
21
Contrary to Plaintiffs boilerplate claim that they will be prejudiced if the scope of Mr.
22
Humes deposition is limited in any way, Dkt. No. 1 at 11:20-12:3, Plaintiffs can adequately
23
explore the basis for Mr. Humes statements in his declaration without delving into Group
24
25 5
Although Mr. Hume recites in his declaration that he works for Group One, the declaration was signed in his
26 individual capacity. See Dkt. No. 2-1, Ex. A.
6
The limitations on discovery under Rule 26 apply with equal force to subpoenas to third parties. Simplex Mfg.
27 Co. v. Chien, No. C12-835RAJ, 2012 WL 3779629, at *1 (W.D. Wash. Aug. 31, 2012).

206.622.3150 main 206.757.7700 fax
1 Ones confidential business and financial information. Mr. Humes declaration is brief and
2 facially non-controversial (Plaintiffs have pointed to no evidence that One Championship is a
3 minor league or feeder league for the UFC). Moreover, the declaration does not involve Group
4 Ones confidential business information and the statements therein are solely Mr. Humes
5 opinions.7 In contrast, the harm to Mr. Hume and Group One that would result from allowing
6 Plaintiffs to inquire into Group Ones confidential and proprietary information is substantial
7 and far exceeds Plaintiffs purported need for that information. Dkt. No. 2-3 at 6.
8 Accordingly, if the Court orders Mr. Hume to appear for a deposition, Plaintiffs should
9 be prohibited from seeking Group Ones confidential information from Mr. Hume.
10 E. The Court Should Deny Plaintiffs Request for Sanctions.

11 1. Rule 37 Does Not Provide for Sanctions Against Nonparties.
12 Plaintiffs contend they should be awarded their reasonable expenses in bringing this
13 motion under Rule 37. But Rule 37 is inapposite here as it is limited by its terms to parties to
14 the action and provides a mechanism for effecting the disclosure mechanisms in Rules 26 to
15 36. Chandola v. Seattle Hous. Auth., No. C13-557 RSM, 2014 WL 4685351, at *7 (W.D.
16 Wash. Sept. 19, 2014) (quoting Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th
17 Cir. 1975)); see Fed. R. Civ. P. 37(a)(3)(B)(i-iv). Accordingly, Plaintiffs may not recover fees
18 under Rule 37(a)(5)(A) against a nonparty for noncompliance with a subpoena. Moreover,
19 even if Rule 37 did apply, Mr. Humes refusal to appear for the deposition as noted in
20 Plaintiffs subpoena was substantially justified for all the reasons stated herein and in the
21 motion to quash. Fed. R. Civ. P. 37(a)(5)(A)(ii) (court must not award fees where the
22 opposing partys nondisclosure, response, or objection was substantially justified).
23 2. Plaintiffs Misrepresent Judge Leens Ruling to Make a Frivolous

and Unjustifiable Motion for Sanctions.
24
Plaintiffs request for sanctions is based on a misrepresentation of Judge Leens order
25
and the absurd premise that Mr. Hume lost his rights to object to discovery during proceedings
26
7
27 Plaintiffs decision to wait until the eve of fact discovery to seek to depose Mr. Hume further belies its claim that
the information it is seeking is necessary for Plaintiffs to pursue their claims. Dkt. No. 1 at 8:2-5 & 10:5-6
206.622.3150 main 206.757.7700 fax
1 he was not aware of, was not present at, and had no right to participate in. After Mr. Hume
2 correctly noted that the Minute Order did not authorize those subpoenas, Plaintiffs sought
3 clarification from Judge Leen. Dkt. 436 in 2:15-cv-1045. Plaintiffs did not serve Mr. Hume
4 with a copy of their motion, and Mr. Hume had no opportunity to present his various objections
5 to the subpoenas. Morley Decl. 5. Plaintiffs did not attach their subpoenas as exhibits to
6 their motion for clarification, nor did they describe the discovery they were attempting to
7 obtain from Mr. Hume. See Dkt. No. 436 in 2:15-cv-1045. As such, Plaintiffs suggestion that
8 Judge Leen approved the subpoenas and preemptively foreclosed any and all objections
9 thereto is false. Rather, Judge Leens order did no more than authorize[] service of a
10 subpoena and subpoena duces tecum on Matt Hume. Dkt. 442 at 1 in id. (emphasis added).
11 Moreover, sanctions against a nonparty for noncompliance with a subpoena are
12 warranted only when a court has first issued an order compelling compliance. Fed. R. Civ. P.
13 45, advisory committee notes to 2013 Amendment (In civil litigation, it would be rare for a
14 court to use contempt sanctions without first ordering compliance with a subpoena . . . .); In re
15 Plise, 506 B.R. 870, 879 (B.A.P. 9th Cir. 2014) ([I]n cases of nonparty subpoenas under Civil
16 Rule 45, the court must first issue an order compelling the nonpartys compliance with the
17 subpoena, and the nonparty must fail to comply with the order before any contempt sanctions
18 can be awarded.); In re Denture Cream Prod. Liab. Litig., 292 F.R.D. 120, 128 (D.D.C. 2013)
19 ([M]any courts have noted that before sanctions can be imposed under the Rule, there must be
20 a court order compelling discovery.) (quotation marks and alterations omitted). Judge Leens
21 order only authorized Plaintiffs to serve discovery on Mr. Hume. Their failure to serve valid
22 and enforceable discovery requests is no reason to sanction Mr. Hume.
23 IV. CONCLUSION
24 For the foregoing reasons, Mr. Hume and Group One respectfully request that the Court
25 deny Plaintiffs motion.
26
27
206.622.3150 main 206.757.7700 fax
1 DATED this 4th day of August, 2017.
2 Davis Wright Tremaine LLP

Attorneys for Matt Hume and Group One
3 Holdings Pte Ltd.
4
By s/ Chris Morley
5 HARRY KORRELL, WSBA #23173
CHRIS C. MORLEY, WSBA #51918
6 JOE WONDERLY, WSBA #51925
1201 Third Avenue, Suite 2200
7 Seattle, WA 98101-3045
Telephone: (206) 622-3150
8 Fax: (206) 757-7700
Email: harrykorrell@dwt.com
9 chrismorley@dwt.com
joewonderly@dwt.com
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
206.622.3150 main 206.757.7700 fax
1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 4, 2017, I electronically filed the foregoing with the
3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the
4 following attorneys of record registered on the CM/ECF system:
5
Dan Drachler Joseph Saveri
6 ZWERLING SCHACHTER & ZWERLING Kevin Rayhill
1904 Third Avenue, Ste. 1030 Joshua P. Davis
7
Seattle, WA 98101 JOSEPH SAVERI LAW FIRM
8 ddrachler@zsz.com 555 Montgomery Street, Suite 1210
San Francisco, CA 94111
9 jsaveri@saverilawfirm.com
krayhill@saverilawfirm.com
10 jdavis@saverilawfirm.com
11
12
All other parties (if any) shall be served in accordance with the Federal Rules of Civil
13
Procedure.
14
DATED this 4th day of August, 2017.
15
16
17
s/ Chris Morley
18 Chris Morley
19
20
21
22
23
24
25
26
27
206.622.3150 main 206.757.7700 fax

Opposition To Subpoena Filed by Hume

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Opposition To Subpoena Filed by Hume

Uploaded by

Copyright:

Available Formats

Case 2:17-cv-01104-RSL Document 17 Filed 08/04/17 Page 1 of 15

1 The Honorable Robert Lasnik

10 Cung Le, Nathan Quarry, Jon Fitch,

5 these same documents and related information.

15 process and harms international comity.

2 competitively-sensitive business information (information they must obtain directly from

3 Group One, using the Hague Convention protocol).

4 The Court should deny Plaintiffs motion to compel.

8 to respond to the allegations in Plaintiffs Motion to Compel.

16 With respect to the list of 17 custodian custodians or document

22 appeared on the docket the day of the hearing:

23 IT IS ORDERED: Plaintiffs Request for an Extension of Time...

3 On June 7, 2017, Plaintiffs counselKevin Rayhillasked Mr. Hume and Group

9 Convention on the Taking of Evidence Abroad. Id.

20 Dkt. 3, Ex. 11.

10 quarterly financial statement. Dkt. No. 433 in id.

15 and fees. Id.

A. Plaintiffs Must Seek Group Ones Documents and Information from

12 producing [the subpoenaed documents] will be minimal.).

16 Hume what they cannot obtain by subpoena to his employer.

17 Rule 45 allows a party to command a person by subpoena to produce documents in

6 has no corresponding right. Id.

7 Courts confronted with similar situations decline to order production by an employee of

10 or control); Lopez v. Chertoff, Case No. CV 07-1566-LEW, 2009 WL 1575209, at *3 (E.D.

18 at *4 (W.D.N.C. Sept. 15, 2006) (quashing a subpoena served on corporate employees

19 requesting Defendant corporations documents).

15 2433672, at *5. Neither case is relevant to a subpoena to a non-executive employee of a

17 The consequences of Plaintiffs vast interpretation of possession, custody, or control

26 obtained through a subpoena to its employee.

B. Plaintiffs Subpoenas Circumvent the Established Method for Obtaining a

15 2555 (the Hague Convention).

21 trial discovery of documents as known in Common Law countries. Hague Convention,

5 otherwise obtain through the appropriate channels.

6 Plaintiffs circumvention of the Hague Convention procedures also threatens Group

15 requests that Singapores laws prohibit.

16 C. Plaintiffs Cannot Use a Deposition of Mr. Hume to Obtain Group Ones

4 Plaintiffs should not be permitted to shoehorn a Rule 30(b)(6) deposition of a foreign

5 corporation into a deposition of its employee in his individual capacity.

6 D. At a Minimum, the Court Should Prohibit Plaintiffs from Inquiring About

OPPOSITION TO MOTION TO COMPEL Davis Wright Tremaine LLP

2 facially non-controversial (Plaintiffs have pointed to no evidence that One Championship is a

10 E. The Court Should Deny Plaintiffs Request for Sanctions.

22 opposing partys nondisclosure, response, or objection was substantially justified).

23 2. Plaintiffs Misrepresent Judge Leens Ruling to Make a Frivolous

11 Moreover, sanctions against a nonparty for noncompliance with a subpoena are

22 and enforceable discovery requests is no reason to sanction Mr. Hume.

25 deny Plaintiffs motion.

1 DATED this 4th day of August, 2017.

2 Davis Wright Tremaine LLP

4 following attorneys of record registered on the CM/ECF system:

You might also like