*1 Pending before the Court is non-party Peter Wu's “Motion to Quash and for Protective Order Regarding Defendant Gilead Sciences, Inc.'s Subpoena to Testify at a Deposition and to Produce Documents.” (“Motion” or “MTQ,” Dkt. No. 2). The Motion is supported by the declarations of counsel Steven Goldsobel (“Goldsobel Decl.,” Dkt. No. 2-1), and movant Peter Wu. (“Wu Decl.,” Dkt. No. 2-2). Gilead Sciences, Inc. (“Gilead”) filed an Opposition, (“Opp.,” Dkt. No. 14), supported by the declaration of counsel William Stute. (“Stute Decl.,” Dkt. No. 14-1). Wu responded to the Opposition in a Reply. (“Reply,” Dkt. No. 15).

The Court held a hearing via Zoom on February 22, 2020, immediately before Wu's deposition. For the reasons stated below and on the record at the hearing, the Motion to Quash is GRANTED IN PART and DENIED IN PART.

The instant dispute arises from a Federal False Claims Act (“FCA”) action in the United States District Court for the Eastern District of Pennsylvania. See Ex rel. Chris Purcell and Kimberly Groome v. Gilead Sciences, Inc., E.D. Penn. Case No. CV 17-3523 MAK. Because the government declined to intervene, the action is being prosecuted by relators Chris Purcell and Kimberly Groome (collectively, “Relators”). (Motion at 1).

Gilead is a biopharmaceutical company. (Opp. at 3). Relators allege that Gilead marketed its patented Hepatitis B virus drugs in way that violated the Anti-Kickback Statute, 42 U.S.C. § 1320a-7(b)(2), and consequently, the FCA, 31 U.S.C. § 3729, et seq. (Motion at 1). Kimberly Groome, one of the Relators, is a former Gilead employee who, for approximately five years, managed Gilead's speaker programs and was involved with Gilead advisory boards. (Opp. at 1). Wu worked at Gilead from February 2016 to July 2018 and was under Groome's supervision until Groome's departure from the company in early 2018. (Id.; see also Wu Decl. ¶ 3).

Groome filed her FCA complaint in August 2017 while she was still working at Gilead. (Reply at 1; Opp. at 4). Six months later, Groome began working at Portola Pharmaceuticals, Inc. (“Portola”). (Reply at 1). According to Wu, Portola does not make Hepatitis B drugs, but instead “makes entirely different drugs that treat blood disorders that different healthcare providers prescribe to substantially different patient populations from those healthcare providers and patients who might use Gilead's Hepatitis B drugs.” (Motion at 3) (citing Wu Decl. ¶¶ 6-7). However, according to Gilead, “Groome conducted the same programs at Gilead and Portola,” even though the companies manufactured different products. (Opp. at 2).

Wu continued working at Gilead for approximately six months after Groome began working at Portola. (Reply at 1) (citing Wu Decl. ¶ 3). However, in July 2018, Wu left Gilead for Portola, where he once again reported to Groome and, according to Gilead, worked on the same kinds of programs that are the subject of the FCA action, just as he did at Gilead. (Opp. at 1; Wu Decl. ¶ 5). Wu left Portola in December 2019. (Wu Decl. ¶ 5). He currently resides in the Central District of California. (Id. ¶ 2).

*2 Gilead originally served Wu personally with a subpoena for documents and deposition testimony on December 16, 2020. (Stute Decl. ¶ 11). The subpoena set the deposition for January 19, 2021. (Stute Decl. ¶ 11). Gilead served the instant “updated” subpoena on Wu's counsel on January 21, 2021.[1] (Goldsobel Decl. ¶ 4 & Exh. 3). The updated subpoena set Wu's deposition for February 22, 2021. (Id.). Wu served objections to the subpoena on January 22, 2021, the day after counsel received the updated subpoena. (Id. ¶ 5 & Exh. 4).

The majority of the document requests in the subpoena seek information about Wu's employment at Gilead. Wu states that he has “produced documents relating to [his] employment at Gilead Sciences, communications with Relator Kimberly Groome and about the Gilead Case,” and affirms that he intends to “answer questions [at his deposition] relating to [his] employment at Gilead Sciences and the documents that [he has] produced.” (Wu Decl. ¶ 4).

However, Wu objects to producing documents and providing testimony concerning his employment at Portola and seeks a protective order precluding Gilead from questioning him about Portola at his deposition. The specific document requests to which Wu objects are:

(Motion at 3; Wu Decl., Exh. 1 at 19-20 (continuous pagination)). In the Opposition, Gilead states that it “will agree to withdraw its request for documents and testimony related to Mr. Wu's compensation at Portola.”[2] (Opp. at 15) (emphasis in original).

Gilead also served a subpoena for production of documents on Portola. (Stute Decl. ¶ 7). In response, “Portola produced fifty-eight pages of documents to Gilead. Portola's production included position descriptions for roles held by Kimberly Groome at Portola, a performance evaluation for Kimberly Groome, and Portola's policies on interactions with healthcare professionals, speaker programs, and advisory boards.” (Id. ¶ 10). Wu maintains that, based on information Portola's in-house counsel shared with his counsel, “Portola agreed to produce a handful of documents on the condition that Gilead agree not to seek any additional information from Portola, including testimony.” (Reply at 6-7).

*3 Wu contends that Gilead's subpoena should be quashed to the extent that it seeks documents and testimony about his employment at Portola, including Portola's marketing practices, on the ground that the information sought is irrelevant to the FCA action that Gilead is defending and, therefore, providing it would impose an undue burden on him. (Motion at 2-3). According to Wu, Gilead's purpose in obtaining this evidence is to show that even though Relator Groome engaged in the same practices at Portola and Gilead, her election to sue Gilead but not Portola is relevant to her credibility and motive. (Id. at 4). However, Wu argues that “Gilead cannot carry its burden to show that any information about Portola's Speaker Programs or Advisory Boards ... is relevant to any FCA defense in the Gilead case” because “[n]o allegations about an unrelated entity's intent or practices could bear on Gilead's intent or practices at issue in the Gilead case.” (Id. at 6). Wu further contends that even if Gilead could establish a need for information concerning Portola, such information should be obtained from Groome, who has not yet been deposed. (Id. at 8). Additionally, Wu maintains that because Gilead elected not to depose Portola itself, he should not be burdened by having to testify about his former employer's practices.[3]

Gilead argues that Wu's Motion should be denied on procedural grounds because it was not presented in the form of a Joint Stipulation as required by Local Rule 37-2 and because his written objections to the subpoena were untimely. (Opp. at 16-18). Substantively, Gilead contends that the information it seeks about Portola is relevant and proportional to the needs of the case. (Id. at 8). It is relevant because Wu's testimony about Portola's speaker programs and advisory boards “bears directly on Ms. Groome's credibility.” (Id.). It is proportional to the needs of the case because “the requests and information sought are narrowly tailored” and the questioning is anticipated to take only between one and two hours. (Id. at 9, 15).

Gilead anticipates that Wu's testimony will show that the programs Groome was involved in at Portola were the same or similar to the programs at Gilead. Accordingly, her decision to file an FCA complaint against Gilead but not Portola will “demonstrate that her motivation for bringing this action was not based on any genuine compliance concerns for Gilead's industry-standard programs, but instead was for financial gain.” (Id. at 9). If Wu or Groome believes that the programs at Portola were “more compliant,” Gilead contends that it has the right to have the opportunity to “hear them explain those differences.” (Id. at 10). Gilead also states that a comparison with Portola's practices will shed light “on whether Gilead's practices were excessive or lavish, and finally, on Gilead's intent in implementing these practices.”[4] (Id. at 11). To the extent that Wu argues that information sought is confidential, the parties in the FCA action have entered into a stipulated confidential agreement, and Wu has signed on to the agreement. (Id. at 14-15). Gilead also states that Wu's insistence that it obtain the information requested from Groome herself overlooks that Groome is adverse to Gilead, whereas Wu is a neutral party. (Id. at 15). Finally, Gilead maintains that it is entitled to $101,476.90 in attorney's fees and expenses incurred in opposing the Motion. (Id. at 18-19).

*4 In his Reply, Wu maintains that Gilead has failed to establish the relevance of the information requested about Portola because when Groome filed the FCA action against Gilead, she was still employed there. As such, “the facts and circumstances of Portola's speaker programs could not possibly have impacted Ms. Groome's decision to bring the Gilead Case.” (Reply at 1). Furthermore, Wu remained at Gilead for a year after the FCA complaint was filed. (Id.). To the extent that Gilead seeks Portola-related information to test Groome's credibility, Wu notes that Gilead already possesses information to show her potential bias -- for example, her unhappiness at not receiving promotions she felt she deserved at Gilead -- and Wu has already agreed to testify about Groome's tenure at Gilead. (Id. at 2). Wu further notes that Gilead “never considered” Portola's programs in structuring its own marketing, so whatever Portola did is “irrelevant to Gilead's intent in operating its own programs.” (Id. at 6). Wu further contends that Portola's willingness to produce a handful of documents in an exchange for Gilead's agreement not to seek any further information or testimony from Portola is not an admission that the information is relevant, and argues that Gilead should not be permitted to do an “end run around this agreement by seeking from Mr. Wu what Portola refused to provide Gilead and that Gilead did not seek to compel from Portola.” (Id. at 7). Even if the Portola-related testimony Gilead seeks is not expected to last more than an “hour or two,” Wu argues that requiring a non-party who has to take time off from work to testify about matters irrelevant to the instant litigation is an undue burden. (Id. at 8). Finally, Wu refutes Gilead's procedural arguments, (id. at 8-9), and maintains that Gilead's request for attorney's fees should be denied because no matter how the Court rules, the Motion is substantially justified, and the request for over $100,000 in attorney's fees is unsupported. (Id. at 9-10).

A. Scope of Permissible Discovery

Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:

Fed. R. Civ. P. 26(b)(1).

Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). Nonetheless, “[t]he relevance standard is commonly recognized as one that is necessarily broad in scope in order ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)); see also Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017) (“Even after the 2015 amendments, courts continue to recognize that discovery relevance remains ‘broad’ in scope.”). “Proportionality focuses on the marginal utility of the discovery sought.” In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D. N.Y. 2016) (internal quotation marks and citation omitted).

While the scope of permissible discovery may be broad, because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. The 2015 amendments to Rule 26 “were designed to protect against over-discovery and to emphasize judicial management of the discovery process, especially for those cases in which the parties do not themselves effectively manage discovery.” Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 308 (S.D. Ind. 2016); see also Davita HealthCare Partners, Inc. v. United States, 125 Fed. Cl. 394, 398 (2016) (the 2015 amendments to the Federal Rules “contribute to the overall goal of regulating the time and expense of litigation”). It is well settled that “[d]istrict courts need not condone the use of discovery to engage in fishing expeditions.” Rivera v. NIBCO, 364 F.3d 1057, 1072 (9th Cir. 2004) (internal quotation marks and citations omitted)). However, the larger and more complex the case, the more even relatively voluminous discovery may be considered proportional. The party resisting discovery bears the burden of showing why discovery should not be allowed. Doutherd v. Montesdeoca, 2018 WL 3008867, at *2 (E.D. Cal. June 15, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

B. Rule 45

*5 A party seeking discovery from a third party may obtain a subpoena for the evidence pursuant to Rule 45. The standards in Rule 26(b) regarding the scope of permissible discovery “appl[y] to the discovery that may be sought pursuant to Rule 45.” AF Holdings LLC v. Does 1-1,058, 286 F.R.D. 39, 46 (D. D.C. 2012) (citing Watts v. S.E.C., 482 F.3d 501, 507 (D.C. Cir. 2007)). Accordingly, a court may “quash or modify a subpoena that calls for irrelevant information,” among other grounds. GMA Accessories, Inc. v. Elec. Wonderland, Inc., 2012 WL 1933558, at *5 (S.D. N.Y. May 22, 2012).

A third party wishing to challenge a subpoena may either serve objections to the subpoena, Fed. R. Civ. P. 45(d)(2)(B), or file a motion to quash on the grounds that the subpoena fails to provide a reasonable time to respond, requires compliance beyond the Rule's geographical limitations, requires disclosure of privileged or other protected matter, or subjects the responding party to an undue burden. Fed. R. Civ. P. 45(d)(3)(A); see also In re Subpoena of DJO, LLC, 295 F.R.D. 494, 497 (S.D. Cal. 2014) (quoting Fed. R. Civ. P. 45(d)(3)(A)(iv)). Rule 45(d)(3)(B)(i) also permits the Court to quash or modify the subpoena if it requires disclosing a trade secret or other confidential research, development, or commercial information. In determining whether a subpoena poses an undue burden, courts “ ‘weigh the burden to the subpoenaed party against the value of the information to the serving party.’ ” Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005) (quoting Travelers Indem. Co. v. Metropolitan Life Insur. Co., 228 F.R.D. 111, 113 (D. Conn. 2005)). Whether a subpoena imposes an undue burden on a particular witness is a “case specific inquiry.” Thayer v. Chiczewski, 257 F.R.D. 466, 469 (N.D. Ill. 2009) (internal quotation marks and citations omitted). In addition to the need of the requesting party for the information and the burden on the non-party in complying with the subpoena, other factors a court should consider include the relevance of the requested information and the breadth or specificity of the discovery request. See Moon, 232 F.R.D. at 637.

“[C]oncern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs” in a Rule 45 inquiry. Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)); see also Misc. Docket Matter No. 1 v. Misc. Docket Matter No. 2, 197 F.3d 922, 927 (8th Cir. 1999) (quoting same); Dart Industries Co., Inc. v. Westwood Chemical Co., 649 F.2d 646 (9th Cir. 1980) (“While discovery is a valuable right and should not be unnecessarily restricted, the ‘necessary’ restriction may be broader when a non-party is the target of discovery.”). “Courts are particularly reluctant to require a non-party to provide discovery that can be produced by a party.” Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 410 (C.D. Cal. 2014); see also Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462, 467 (D. S.D. 2011) (“If the party seeking information can easily obtain the same information without burdening the non-party, the court will quash the subpoena.”); Brown v. City of Syracuse, 648 F. Supp. 2d 461, 466 (N.D. N.Y. 2009) (when balancing hardships between a requesting party and a non-party, court should consider whether there are other sources for obtaining the material); Arthrex, Inc. v. Parcus Medical, LLC, 2011 WL 6415540, at *6 (S.D. Ind. Dec. 21, 2011) (“A party's ability to obtain documents from a source with which it is litigating is a good reason to forbid it from burdening a non-party with production of those same requests.”).

A. Gilead's Procedural Contentions Fail

*6 Gilead contends that the Court should deny Wu's Motion on two procedural grounds: first, for violation of Local Rule 37-2's requirement that discovery disputes be presented in the form a joint stipulation, and second, because Wu's objections to the subpoena, served on January 22, 2021, were untimely. The Court declines to deny the Motion on these grounds.

Local Rule 37-1 requires that, prior to the filing of any motion relating to discovery, a moving party must send a letter to opposing counsel requesting to meet and confer. The letter must identify (1) each issue and/or discovery request in dispute, (2) briefly state with respect to each issue or request the moving party's position, (3) provide any legal authority which the moving party believes is dispositive of the dispute, and (4) specify the terms of the discovery order to be sought. See C.D. Cal. L.R. 37-1. The conference must take place within ten days after the moving party sends the letter requesting the conference. Id. If the parties are unable to resolve all of their differences, they must present their dispute to the Court in a Joint Stipulation pursuant to Local Rule 37-2. The moving party must deliver its portion of the Joint Stipulation to counsel for the opposing party, who has seven days return it with its portion of the stipulation. C.D. Cal. L. R. 37-2.2. After the opposing party's material is added, the moving party must then return the finalized stipulation to the opposing party for counsel's signature. Id. The opposing party must then sign and return the executed stipulation to the moving party no later than the end of the next business day. Id.

Here, the original subpoena was personally served on Wu on December 16, 2020. (See Goldsobel Decl. ¶ 6). At some point, Wu obtained counsel, Steven Goldsobel, who evidently communicated with the Gilead attorney then responsible for Wu's deposition, Randy Luskey of Orrick, Herrington and Sutcliffe, because on December 23, 2020, Luskey served Goldsobel with an amended notice of deposition, setting the deposition for January 22, 2021. (Stute Decl. ¶ 13). On January 11, 2021, Luskey and Goldsobel conferred about the deposition, and Goldsobel asked to reschedule the deposition date. (Id. ¶ 14). On January 13, 2021, Wu executed an acknowledgment and agreement to be bound to the Stipulated Confidentiality Agreement in the pending FCA action in the Eastern District of Pennsylvania. (Id. ¶ 16). On January 15, 2021, Goldsobel requested that the deposition be rescheduled for February 22, 2021, (id. ¶ 17), and on January 20, 2021, a different Orrick attorney, Will Stute, spoke with Goldsobel and agreed to the date. (Id. ¶ 18). The next day, January 21, 2021, Stute informed Goldsobel that Luskey was leaving the firm and that he (Stute) would be responsible for Wu's deposition on Gilead's behalf. (Goldsobel Decl. ¶ 7). Goldsobel informed Stute of Wu's objections to the Portola-related requests. (Id.). Stute refuted Wu's objections, and that same day, served an amended notice of deposition on Goldsobel, setting Wu's deposition for February 22, 2021. (Id. ¶ 4 & Exh. 3). According to Goldsobel, he “informed Mr. Stute that Mr. Wu needed sufficient time to have a properly noticed motion for protective order adjudicated by the Court and suggested briefly continuing the deposition to permit sufficient time for a properly noticed motion. In response, Mr. Stute declined.” (Id. ¶ 9). On January 22, 2021, Wu served written objections to the subpoena. (Id. ¶ 5 & Exh. 4). On January 23, 2021, Stute wrote an email to Goldsobel setting forth Gilead's position with respect to its asserted right to question Wu about his employment at Portola and threatening to seek attorney's fees if Wu filed a motion to quash. (Stute Decl., Exh. 8).

*7 The Court expects counsel to confer with each other and resolve disputes among themselves whenever possible. Based on the declarations of counsel in this matter, it appears that counsel largely attempted to do so with respect to Wu's deposition, at least up to the end of January. The Court also expects that counsel will cooperate to find a mutually-agreeable date for a deposition -- particularly the deposition of a non-party -- and indeed, such cooperation is required by the Court's Civility and Professionalism Guidelines, available on the Court's website at http://www.cacd.uscourts.gov/attorneys/ admissions/civility-and-professionalism-guidelines. Here, although Goldsobel proposed that the deposition take place on February 22, 2021, the date was not confirmed until January 20, 2021. It was not until January 21, or perhaps even January 23, in Stute's email to Goldsobel, that it became clear that the parties were at a seemingly insurmountable impasse on the Portola issue. By that point, in light of the February 22, 2021 deposition date and Gilead's refusal to continue the deposition for even a few days, there was not time for Wu to follow the joint stipulation requirements of Local Rule 37-2. It is arguable that Goldsobel should have anticipated the need for motion practice before proposing February 22 as the date for Wu's deposition and should have begun preparing the joint stipulation sooner. However, it is also arguable that Gilead's change of counsel for the deposition and Gilead's refusal to continue the deposition once the impasse became clear contributed significantly to Wu's dilemma in determining how to proceed. In these particular circumstances, the Court exercises its discretion to excuse Wu's non-compliance with Local Rule 37-2 and will hear the Motion on the merits.

For largely the same reasons, the Court rejects Gilead's contention that Wu waived his objections. Wu states that his “narrow objections and document production were served after [he] retained counsel and his counsel was able to get up to speed.” (Reply at 9). The court can excuse late objections “ ‘[i]n unusual circumstances and for good cause.’ ” Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (quoting McCoy v. Southwest Airlines, Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002)). The subpoena at issue here was personally served on Wu (who is not a lawyer or a corporation with legal staff) during a pandemic right before the holidays. While Wu appears to have secured counsel with relative speed, there is no evidence before the court of intentional delay in the service of Wu's objections and absolutely no suggestion that Gilead was prejudiced in any fashion by the timing of the service, particularly because Wu's counsel appears to have informed Gilead of the basis for Wu's objections in conferences of counsel before service of the written objections. Wu has made an adequate showing of good cause. Accordingly, the Court exercises its discretion to excuse any purported delay in the service of the objections and will hear the Motion on the merits.

B. Merits

The Court finds that the requested testimony from Wu is relevant and proportional to the needs of the case. For this reason, the Court DENIES Wu's motion to quash the subpoena to the extent that the subpoena seeks documents and testimony concerning Portola's speaker programs and advisory boards. While Wu's argument that Gilead could secure the requested documents related to the speaker programs or advisory boards from Portola itself or from Groome is somewhat persuasive, the Court must determine if such documents and testimony are relevant to any defense Gilead may raise in this FCA action. Because relevancy is not a high threshold, the Court finds that Gilead's anticipation that Wu's testimony will show that Groome was involved in similar programs while at Gilead and later at Portola but chose to sue only Gilead is sufficient to provide Gilead with the opportunity to pursue evidence potentially relevant to Groome's motivation for initiating this action. The fact that Wu worked under Groome's supervision at both Gilead and Portola, and may have information not only related to Groome but also how the two programs were similar or different at the two companies, renders his testimony relevant.

The Court also finds that the discovery requested is narrowly tailored, proportional to the needs of the case, and not unduly burdensome. Wu has been on notice for some time that Gilead will seek documents and testimony related to his work at Portola as it relates to the speaker programs and advisory boards. As such, it should not be difficult for him to provide the documents and testify on these topics. For all of these reasons, the Court will allow Gilead to question Wu about topic number 20 regarding Portola Pharmaceuticals' Speaker Programs or Advisory Boards, and orders Wu to produce documents responsive to Request for Production No. 20 within fourteen days of the date of this Order. However, the Court GRANTS Wu's motion to the extent that it seeks to quash discovery into his compensation and the “compensation structure” at Portola. Wu is not required to produce documents responsive to Request for Production No. 21 or to respond to questions at his deposition on those topics.

C. Gilead's Fee-Shifting Request Fails

*8 Gilead seeks $101,476.90 for attorney's fees and costs incurred in opposing Wu's “meritless motion.” (Opp. at 18). According to Gilead, Wu cannot show substantial justification for the Motion because “there is no question that Mr. Wu's testimony is relevant to FCA actions generally, but also to Relators' specific claims as a result of his unique knowledge regarding industry practices.” (Id. at 19). The Court disagrees.

“A district court has wide discretion to impose sanctions, including severe sanctions, under Federal Rule of Civil Procedure 37, and its ruling will be reversed only if it constitutes an abuse of discretion.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2nd Cir. 2006). While Rule 45 does not expressly identify failed motions to quash as a basis for sanctions, district courts have imposed reasonable expenses upon moving parties following an unsuccessful motion to quash. O'Neal v. Capital One Auto Finance, Inc., 2011 WL 2649711 at *4 (N.D. W.Va. July 6, 2011); see also Robertson v. Cartinhour, 711 F. Supp. 2d 136, 138 (D.D.C. 2010) (awarding attorneys' fees where plaintiff's “decision ... to move to quash” was “reckless and in bad faith”); Baldus v. Members of the Wisconsin Gov't Accountability Bd., 2012 WL 10610 at *3-4 (E.D. Wis. Jan. 3, 2012) (imposing sanctions against defendants' attorneys for filing “frivolous motions to quash” that were part of a pattern of “disinformation, foot-dragging and obfuscation” by the attorneys); American Seeds, LLC v. Watson, 2010 WL 3843002 at *2 (D. S.D. Sept. 27, 2010) (ordering third party to pay plaintiff's attorneys' fees incurred in responding to a “late frivolous motion to quash”).

Federal Rule of Civil Procedure 37(a)(5)(B) states:

Fed. R. Civ. P. 37(a)(5)(B). The purpose of the rule is to “protect courts and opposing parties from delaying or harassing tactics during the discovery process.” Cunningham v. Hamilton Cnty., 527 U.S. 198, 208 (1999). Consequently, “if a motion to quash is opposed and the moving party loses, the opposing party may seek attorney's fees and expenses unless the court is convinced that the losing party was ‘substantially justified’ or ‘other circumstances’ exist making such an award ‘unjust.’ ” Ceramic Corp. of America v. Inka Maritime Corp., Inc., 163 F.R.D. 584, 589 (C.D. Cal. 1995) (quoting Fed. R. Civ. P. 37(a)(5)(B)).

A request for discovery is substantially justified “if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks and brackets omitted). The trial court has broad discretion to evaluate the justification proffered. Reiner v. Warren Resort Hotels, Inc., 2008 WL 5120682, at *9 (D. Mont. Oct. 1, 2008).

Gilead's request for attorney's fees fails because Wu's Motion to Quash was plainly substantially justified. Reasonable attorneys could disagree as to whether the information sought by Gilead's subpoena is truly relevant to the claims and defenses in this action, and indeed, adjudication of this dispute was a very close call. In a concession to Wu's confidentiality concerns, Gilead even agreed in the Opposition to withdraw its request for documents and testimony related to Wu's compensation at Portola -- one of only two disputed requests put at issue in the Motion -- which further evidences the “substantial justification” for the Motion. (Opp. at 15).

*9 However, even if the Motion were not substantially justified, which it is, the Court would still deny Gilead's request for attorney's fees because the request is unsupported. Gilead's counsel assigned eleven attorneys and two paralegals to the drafting of this straightforward Opposition, which did not involve complicated points of law requiring substantial research or implementation of a novel legal strategy. Gilead seeks over $100,000 for its efforts, but does not even attempt to justify the request by explaining what each of the thirteen people assigned to this task contributed to the Opposition. A fee applicant must submit evidence of the hours worked and the rates claimed, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and bears the burden of showing that the rates charged and hours worked are reasonable. See Intel Corp. v. Terabyte Int'l, 6 F.3d 614, 623 (9th Cir. 1983). Gilead's counsel identifies each of the attorneys and paralegals who worked on the Opposition, as well as their respective rates and the number of hours each person worked. (Stute Decl. ¶ 28). However, the only evidence of the reasonableness of the rates claimed is a self-interested statement by one of the attorneys representing Gilead in this case who asserts that based on his familiarity with the relevant legal community, “the rates charged herein are reasonable, customary and in accord with the market rate for attorneys and legal professionals with our background and experience.” (Id. ¶ 29). The only evidence of the reasonableness of the time spent on the Opposition is another self-interested statement by the same attorney, who summarily asserts that “[t]he time spent and expenses incurred were reasonable and necessary under the circumstances.” (Id. ¶ 31).

Neither of these conclusory assertions constitutes persuasive “evidence” of the reasonableness of an attorney's fees request. Allowing a party's counsel to establish the “reasonableness” of that same attorney's fee request simply by stating that in the counsel's opinion, the rates his firm charges and the hours his staff worked on a particular project were reasonable, without any showing of prevailing rates in the community or of the work each person performed, would make a nullity of the reasonableness requirement as such a blanket statement could be asserted in every single discovery dispute. Accordingly, Gilead's request for attorney's fees is DENIED.

For the reasons stated above, Wu's Motion to Quash is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED with respect to discovery about Portola's speaker programs and advisory boards. Wu shall produce documents responsive to Request for Production No. 20 within fourteen days of the date of this Order and shall respond to questions at his deposition on February 22, 2021 seeking non-privileged information about Portola's speaker programs and advisory boards. However, such questioning shall not exceed one hour, and no post-production follow up deposition will be permitted. The Motion is GRANTED with respect to discovery about Wu's compensation at Portola and the “compensation structure” at Portola. Wu is not required to produce any documents responsive to Request for Production No. 21 or respond to any questions about his compensation in particular or “compensation structures” in general at Portola. Gilead's request for attorney's fees is DENIED.

In the interim between the original and “updated” subpoenas, on December 23, 2020, Gilead provided Wu's counsel with an amended notice of deposition, setting Wu's deposition for January 22, 2021. (Stute Decl. ¶ 13).

Although Gilead's agreement to withdraw its request for information related to Wu's “compensation” at Portola would appear to dispose of Request for Production No. 21 in its entirety, the Opposition is unclear. Immediately after agreeing to forego discovery about Wu's compensation, Gilead states that it is requesting “merely two categories of documents and one to two hours of deposition testimony related to Portola.” (Opp. at 15) (emphasis in original). The Court is unable to determine what, if anything, of Request for Production No. 21 survives in light of the withdrawal of the request for information about Wu's compensation. Accordingly, the Court will presume that Gilead is seeking information from Wu only about Portola's speaker programs and advisory boards, but not about his compensation or “compensation structure” at Portola.

Wu also raised numerous arguments directed at Gilead's requests for information about his compensation at Portola. (Motion at 8). However, as noted above, because Gilead has stated that it will not pursue discovery about Wu's compensation, the Court will not address Wu's arguments on that subject.

Gilead confusingly argues that it “did not and does not represent that the documents and testimony sought concerning Portola's practices are relevant to an “industry practice” defense. Instead, as explained above, Gilead intends to use this testimony for conduct where no particular legal standard applies. In that case, if Gilead's conduct was consistent with prevailing industry standards, then Relators need to show why that conduct was improper.” (Opp. at 12) (emphasis added). The distinction between “industry practice” and “industry standards” in this context is unclear. Wu counters that “no FCA case has ever endorsed” an industry-practice defense. (Reply at 1).