I. AUTHORITY OF MAGISTRATE JUDGE AND STANDARD OF REVIEW

Section 636(b)(1)(A) of Title 28 of the United States Code permits district judges to “desig-nate a magistrate judge to hear and determine any pretrial matter pending before the court,” except for specifically listed motions that are not at issue here. The district judge may review and recon-sider any pretrial matter decided by a magistrate judge under the authority of subparagraph (A) when “it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

Rule 72(a) of the Federal Rules of Civil Procedure provides further guidance as to reviewing nondispositive pretrial orders of magistrate judges. It establishes a fourteen-day period for parties to object to such orders. And it mandates that the district judge “consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”

Rule 72(a) and § 636(b)(1)(A) set out a “highly deferential standard [that] requires the court to affirm the decision of the magistrate judge unless ‘on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed.’ ” Baylor Health Care Sys. v. Equitable Plan Servs., Inc., 955 F. Supp. 2d 678, 689 (N.D. Tex. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Over the years, courts have noted the following principles of review:

*2 Id. (quoting Arters v. Univision Radio Broadcasting TX, L.P., No. 3:07–CV–0957–D, 2009 WL 1313285, at *2 (N.D. Tex. May 12, 2009) while omitting citations and internal quotation marks)); accord Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996); Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994). “A party who seeks to overturn a magistrate judge’s order disposing of a discovery matter shoulders a heavy burden.” Hamilton v. First Am. Title Ins. Co., No. 3:07–CV–1442–G, 2010 WL 791421, at *4 (N.D. Tex. Mar. 8, 2010).

Consistent with § 636(b)(1) and Rule 72(a), the Court reviews the order entered by the Magistrate Judge and the objections thereto.

II. OBJECTIONS

High Point seeks to compel STA to produce documents and source code pursuant to a subpoena issued under Fed. R. Civ. P. 45. STA contends that such materials have never been in its possession, custody, or control, and that the items are located in the Korean offices of a distinct corporate entity, Samsung Electronics Co., Ltd. (“Samsung Korea”), if they exist at all. (Obj’ns at 1.) The sole issue in this case is whether STA has control of the items within the meaning of Fed. R. Civ. P. 45(a)(1)(A)(iii). (Id.) After analyzing the applicable law, including five factors relevant to the issue of control, the Magistrate Judge found that High Point had carried its burden to show that STA has sufficient control of the responsive materials possessed by Samsung Korea to warrant compelling STA to produce the materials. (M&O at 6–10.) The Magistrate Judge found “that the relationship between STA and Samsung Korea is such that STA has control of the materials and source code the subject of High Point’s motion to compel.” (Id. at 9.)

STA objects to the finding that it has control over items in the possession of Samsung Korea as “clearly erroneous, contrary to law, and contrary to undisputed facts that [it] presented in response to the Motion to Compel.” (Obj’ns at 2.) More specifically, it objects that the Magistrate Judge applied the wrong legal standard and, even if the standard was correct, the analysis and conclusions are clearly erroneous in light of undisputed facts. (Id. at 2, 4–16.) STA also objects that the Magistrate Judge erred in interpreting and applying case law. (Id. at 17–20.)

No one disputes that the items in question are responsive to High Point’s subpoena and thus within the scope of the prior order to compel. The dispute is whether High Point has sufficiently demonstrated that STA has “control” of the documents within the meaning of Fed. R. Civ. P. 45; thus requiring that it produce them.

Subpoenas issued pursuant to Fed. R. Civ. P. 45(a)(3) may command a person to “produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). Similarly, a party may request another party to produce requested “items in the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). As properly recognized by the Magistrate Judge, these provisions are analyzed similarly when addressing whether material is in the possession, custody, and control of the person responding to the subpoena or request for production. (See Mem. Op. & Order at 4.) In short, “the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules.” Fed. R. Civ. P. 45advisory committee notes (1970 amend.). And, whether one entity has “control” over material in the actual possession of another entity, the meaning of the phrase “possession, custody, or control” is the same whether the issue arises out of a subpoena issued pursuant to Rule 45 or a request for production under Rule 34. See, e.g., Goh v. Baldor Elec. Co., No. 3:98–MC–064–T, 1999 WL 20943, at *2 (N.D. Tex. Jan. 13, 1999)(discussing concept of control utilized in Rule 34 context while recognizing that the documents were sought under Rule 45); Addamax Corp. v. Open Software Found., Inc., 148 F.R.D. 462, 468 (D. Mass. 1993) (specifically finding no reason to define the identical phrases used in the two rules differently); 9A Charles Alan Wright et al., Federal Practice and Procedure § 2456 (3d ed. 2013) (“Cases construing the words ‘possession, custody or control’ in Rule 34 are helpful in applying these principles in the context of Rule 45.”). The Court finds no merit to any objection that the Magistrate Judge erred by approaching the control issue the same under Rule 45 as courts have done in the Rule 34 context.

*3 “The party seeking the production of documents bears the burden of proving that the oppos-ing party has the control required under Rule 34.” Kickapoo Tribe of Indians of Kickapoo Reserva-tion in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, 294 F.R.D. 610, 613–14 (D. Kan. 2013); accord Shell Global Solutions (US) Inc. v. RMS Eng’g, Inc., No. 4:09–CV–3778, 2011 WL 3418396, at *2 (S.D. Tex. Aug. 3, 2011) (citing United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989)). Likewise, in the context of a subpoena issued under Rule 45, “the burden is on the party seeking discovery to make a showing that the other party has control over the materials sought.” SEC v. Credit Bancorp, Ltd., 194 F.R.D. 469, 472 (S.D.N.Y. 2000) (relying on Addamax and cases decided in Rule 34 context); accord Addamax, 148 F.R.D. at 465 (relying on cases decided in Rule 34 context).

The concept of control is “often highly fact-specific.” 8B Charles Alan Wright et al., Federal Practice and Procedure § 2210 (3d ed. 2013) (stated in context of Rule 34, but citing cases addressing the issue under Rules 34and 45). Several courts define control as the legal right, authority, or ability to obtain documents upon demand.” See id. & n.5 (identifying cases). But in some “circum-stances courts interpret the control concept to go beyond whether the litigant has a legal right to obtain materials and focus on practical ability to obtain them.” Id. Particular concerns arise when an entity responding to discovery is related to another entity that actually possesses the responding materials. Id. “Rather than adopting an overarching rule for such situations, the courts have tended to focus on the facts shown in a particular case.” Id. In this case, there is no dispute that there is no binding precedent as to the meaning of control within the context of discovery under either Rule 34 or 45.

The Magistrate Judge committed no clear error when she found that Plaintiff had carried its burden to show that STA has the control required under Rule 45. The Court finds no factual component of the Magistrate Judge’s order clearly erroneous. STA contends that the Magistrate Judge failed to consider two key facts: (1) that Samsung Korea has refused to provide the responsive items despite a request from STA and (2) “it is not unusual in the ordinary course of STA’s business dealings with Samsung Korea for STA to request technical documents and source code from Samsung Korea and to have Samsung Korea refuse to provide them.” (Obj’ns at 2–3.) But the Magistrate Judge appears to have considered those facts in the section of the order in which she considers the exchange of documents between the two entities in the ordinary course of business. (See M&O at 7–8.) The fact that “it is not unusual” for Samsung Korea to refuse requests from STA for technical documents and source code obviously implies that STA makes such requests and that Samsung Korea also grants some requests. And, as recognized by the Magistrate Judge, the fact that Samsung Korea has refused to provide responsive documents does not overshadow that obvious implication. A review of the relevant filings does not leave the Court with any definite or firm conviction that the Magistrate Judge has committed any mistake.

Relatedly, STA also contends that the Magistrate Judge failed to consider the full deposition testimony of its corporate representative that source code information is made available between STA and Samsung Korea only occasionally and that requests for source code are not always granted. (Obj’ns at 13–14.) STA further contends that the Magistrate Judge failed to consider an uncontro-verted declaration that Samsung Korea did not routinely provide STA with confidential source code and technical documents. (Id. at 14–15.) These contentions are essentially more specific versions of the contention addressed in the previous paragraph. The Court finds no legitimate basis for finding that the Magistrate Judge failed to consider all information presented to her. The order itself reflects that she understood that Samsung Korea did not always grant STA’s requests for information. (See M&O at 7–8.) The fact that Samsung Korea does not routinely provide STA with confidential source code and documents indicates that it does provide such documents in some circum-stances. The additional information noted in these contentions provide no reason to find error.

*4 The Court also finds no clear error in the Magistrate Judge’s legal conclusions. The parties in this case agree that there is no binding precedent as to the definition of “control” in the present context. In the absence of such precedent, it is within the discretion of the judge to decide whether non-binding precedent is persuasive based upon his or her interpretation of the law. See Commod–ities Exp. Co. v. Detroit Int’l Bridge Co., 695 F.3d 518, 528 (6th Cir. 2012) (addressing non-binding state decision). The Magistrate Judge did not abuse her discretion when she applied the law that she found persuasive to the facts of this case. In general, the issue of control is fact-intensive by its very nature. The Magistrate Judge considered the issue under the facts presented.

STA essentially argues “clearly erroneous” and “contrary to law” by submitting “examples of decisions made by other judicial officers in other cases” and “urging that the magistrate judge should have taken a similar approach in the present case.” But such arguments mistakenly equate those standards with an abuse of discretion. See RTC v. Sands, 151 F.R.D. 616, 619 (N.D. Tex. 1993) (discussing similar arguments). As stated in Sands:

At most, these arguments posit a basis for finding abuse of discretion, but none has

Id. Those statements are as true today as they were when made more than twenty years ago. STA simply disagrees with the law applied by the Magistrate Judge. But it has shown no abuse of discretion in applying such law.

STA contends that the following language in Goh should be dispositive in this case: “In the instant situation where Ernst & Young’s foreign entities have refused to voluntarily provide the documents in question, it necessarily follows that Ernst & Young LLP in Dallas does not have control over the documents.” (Obj’ns at 4–4, 19–20 (quoting Goh, 1999 WL 20943, at *3).) But Goh is not dispositive of the issue. The parties in Goh presented non-binding authority for two definitions of control—one limited to the legal right to obtain the documents requested upon demand and another that included that legal right in addition to authority or ability to obtain the documents. See1999 WL 20943, at *2. The Court declined to adopt a particular definition because it found no “legal right, authority, or ability to obtain the documents irrespective of the definition applied.” See id. It recognized that it must consider the facts regarding the relationship between the two entities and that such relationship “is the key” to determining the sufficiency of control. Id. In considering the facts, it specifically distinguished proffered authority on grounds that it was not addressing a discovery dispute that involved a parent corporation and a wholly owned subsidiary. See id. at *3.

In the case now before the Court, STA is wholly owned by Samsung America, (see App. at 71 (doc. 9)), which in turn is wholly owned by Samsung Korea, (see Supp. App. at 207 (doc. 13)). As found by the Magistrate Judge, “that Samsung America stands as an ownership intermediary between STA and Samsung Korea is of no moment where High Point has also presented credible evidence that Samsung Korea owns all of Samsung America and Samsung America owns all of STA.”[2] (M&O at 6.) The factual differences between Goh and the instant case provide an adequate reason for making different findings regarding control. That Gohfound no control under the facts before it does not dictate the same result here. Moreover, because Goh is neither binding on the Magistrate Judge in this case nor the Northern District of Texas in general, the case ultimately provides an example of STA preferring a different approach or outcome without showing that the Magistrate Judge abused her discretion in deciding the control issue differently on different facts.

*5 STA also contends that the Magistrate Judge erred by not including an “on demand” component to the definition of “control.” (Obj’ns at 5–6.) Again, STA simply prefers a different approach than the one utilized by the Magistrate Judge in her discretion. Not all definitions of control include an “on demand” component. See Shell Global Solutions (US) Inc. v. RMS Eng’g, Inc., No. 4:09–CV–3778, 2011 WL 3418396, at *2 (S.D. Tex. Aug. 3, 2011) (defining control for discovery purposes as “when that party has the right, authority, or practical ability to obtain the documents from a nonparty to the suit”).

III. CONCLUSION

After reviewing all relevant matters of record in this case, including the order of the Magistrate Judge, objections and relevant filings, and the applicable law, the Court finds nothing in the order either clearly erroneous or contrary to law. And it further finds that the Magistrate Judge did not abuse her discretion. Accordingly, it OVERRULES Samsung Telecommunications America LLC’s Objections to Magistrate Judge’s Memorandum Opinion and Order (doc. 26). Within four-teen days of the date of this order, Samsung Telecommunications America LLC shall comply with the September 23, 2013 order of the Magistrate Judge (doc. 23).

SO ORDERED this 1st day of April, 2014.

In that case, the Court granted an uncontested motion to compel STA to comply with a subpoena issued by High Point in connection with a pending patent infringement case between High Point and Sprint Nextel Corporation in the District of Kansas, No. 2:09–CV–2269–CM–TJJ. The Court ordered STA “to produce all documents in [its] possession, custody, or control that are responsive to the subpoena.”

Notably, at least one other federal court has recognized the close relationship between STA and Samsung Korea. SeeDeSmeth v. Samsung Am., Inc., No. 92 CIV. 3710(LBS)RLE, 1998 WL 74297, at *9–10 (S.D.N.Y. Feb. 20, 1998). Although this case was decided many years ago, the facts presented in the present case continue to support finding a close nexus between STA and Samsung Korea.