*1 Before the Court are two related discovery motions:

Plaintiff filed an Opposition to Defendant's Protective Order Cross-Motion on March 3, 2022. (Dkt. No. 97.) On March 9, 2022, Plaintiff filed a Supplemental Memorandum in support of the Motion to Compel (“Supp. Mem.”). (Dkt. No. 99.) Also on March 9, 2022, defendants BabyBjörn AB (“BabyBjörn”) and BabySwede LLC (“BabySwede”) (collectively, “Defendants”) together filed an Opposition to Plaintiff's Motion to Compel and Further Support for Amended Cross-Motion for a Protective Order. (Dkt. No. 100.)[1] On March 21, 2022, the Court took the parties' motions under submission without oral argument. (Dkt. No. 101.)

For the reasons discussed below, Plaintiff's Motion to Compel is GRANTED in its entirety. Defendant's Protective Order Cross-Motion is DENIED in its entirety.

I. RELEVANT BACKGROUND

a. Plaintiff's Allegations

Plaintiff O.T. (“Plaintiff”) through her guardian ad litem, Natalie Del Real-Trujillo (“Guardian Natalie”), commenced this products liability action on May 19, 2020, seeking damages for injuries that Plaintiff allegedly suffered as a result of being carried as an infant in a baby carrier designed, manufactured, and/or sold by Defendants. (See Dkt. No. 1.) The operative Second Amended Complaint, filed on September 22, 2021 (the “SAC”) (dkt. no. 43) against Defendants, alleges that in 2012, Guardian Natalie “used a dangerously defective BabyBjörn Original Baby Carrier (the ‘Baby Carrier’) to carry her daughter O.T.[,] which caused or contributed to severe hip dysplasia in the infant.” (SAC ¶ 1.) The SAC alleges that as a result of these injuries, Plaintiff has had three surgical procedures and spent months in full casts. (Id.)

*2 In January 2012, Guardian Natalie and her husband, in anticipation of O.T.'s birth signed up for a gift registry at Babies “R” Us in Torrance, California and “selected a BabyBjörn Baby Carrier—which was available for purchase at the store—as one of the items her friends and family could purchase.” (Id. at ¶ 20.) A friend or family member purchased the Baby Carrier for Guardian Natalie and her husband to use with Plaintiff. (Id. at ¶ 21.)

The carrier is designed to be worn on the parent's front, with straps over the parent's shoulders and around their waist. (Id. at ¶ 2.) It “is intended for parents to carry their infants for extended periods of time” and the child can be carried facing toward or away from the parent. (Id.) Plaintiff alleges that facing either direction, the infant's legs hang unsupported, “in an unsafe position of extension and abduction.” (Id.) Properly designed baby carriers have wider, more structured bottoms that give more support to the infant's legs. (Id.) The Baby Carrier at issue in this lawsuit is defectively designed because it “has a narrow bottom that provides insufficient support of the infant's hips.” (Id.) Plaintiff alleges that the manufacturers, at least from 2002, “were aware or should have been aware, that the Baby Carrier's design carried with it a dangerous propensity to cause hip dysplasia in children.” (Id. at ¶ 3.) According to Plaintiff, “Defendants ceased selling the defective Baby Carriers in 2020.” (Id.)

BabyBjörn is a private Swedish company. (Id. at ¶ 5.) BabySwede is a private corporation based in Ohio. (Id. at ¶ 6.) Plaintiff alleges a unity of interests between the named defendants and the SAC refers to Defendants collectively as “BabyBjörn.” (Id. at ¶¶ 8-13.) Plaintiff further alleges that at all relevant times, Defendants were “engaged in the business of and/or was a successor in interest to and/or affiliated with/associated with/indistinguishable from entities engaged in the business of researching, designing, formulating, testing, manufacturing, producing, assembling, inspecting, distributing, marketing, labeling, promoting packaging, advertising for sale, and/or selling the Baby Carrier for use by Plaintiff.” (Id. at ¶ 13.) As a result, Plaintiff avers that Defendants are jointly and severally liable for Plaintiff's damages. (Id.)

Defendants filed an Answer to the SAC on October 20, 2021. (Dkt. No. 51.)

b. The Discovery Requests At Issue

Plaintiff served BabyBjörn with a First Set of Requests for Production of Documents (the “RFPs”) on November 12, 2021. (Joint Stip. at 1; Andrus Decl., Ex. 5.) The RFPs include forty-six (46) specific requests for documents. (Andrus Decl., Ex. 5.) Because Plaintiff contends that BabyBjörn's wholesale refusal to respond or timely object to the RFPs is the reason for Plaintiff's Motion, the Court will not recite every individual request in this Order.[2] Nevertheless, the Court has reviewed each of the subject RFPs individually in assessing the relevance and proportionality of the information that Plaintiff seeks in the RFPs.

On September 22, 2021, Plaintiff served three Rule 45 Subpoenas upon two entities and an individual in Orlando, Florida: a document subpoena to International Hip Dysplasia Institute (Andrus Decl., ¶ 7, Ex. 6); a document subpoena to Orlando Health Foundation (id., Ex. 7); and a deposition subpoena to Dr. Charles Price (id., Ex. 8).

II. LEGAL STANDARD

*3 Under Federal Rule of Civil Procedure 26, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Relevant information need not be admissible to be discoverable. Id.

Rule 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” FED. R. CIV. P. 37(a)(3). The party seeking to compel production of documents under Rule 34 has the “burden of informing the court why the opposing party's objections are not justified or why the opposing party's responses are deficient.” Best Lockers, LLC v. Am. Locker Grp., Inc., No. SACV 12-403-CJC (ANx), 2013 WL 12131586, at *4 (C.D. Cal. Mar. 27, 2013).

District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751). In resolving discovery disputes, the court may exercise its discretion in “determining the relevance of discovery requests, assessing oppressiveness, and weighing ... factors in deciding whether discovery should be compelled.” Unilin Beheer B.V. v. NSL Trading Corp, No. CV 14-2210-BRO (SSx), 2015 WL 12698382, at *4 (C.D. Cal. Feb. 27, 2015) (quoting Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006)).

The Court applies these principles here to analyze the parties' disputes concerning the Motion to Compel and the Protective Order Cross-Motion. The Court addresses each motion in turn below.

III. PLAINTIFF'S MOTION TO COMPEL

a. Plaintiff's Arguments

Plaintiff served BabyBjörn a first set of RFPs on November 12, 2021. (Joint Stip. at 1.) In early December 2021, at the request of Defendants' counsel, Plaintiff agreed to extend the original response deadline from December 16, 2021 to January 7, 2022. (Id.) The parties had a meet and confer call on December 20, 2021, and, in confirming correspondence on December 22, 2021, Plaintiff agreed to narrow some of the RFPs in response to BabyBjörn's concerns and asked that BabyBjörn provide further information for Plaintiff to assess BabyBjörn's burden objections. (Id., Andrus Decl., Ex. 2.) During the week of December 27, 2021, the parties exchanged drafts of a protective order and Rule 16/26 Joint Statements, but BabyBjörn did not respond to the December 22nd letter from Plaintiff or “seek any further meet and confer discussion until after BabyBjörn's deadline to respond had passed.” (Id.) Plaintiff asserts that during that time, BabyBjörn's counsel never advised Plaintiff's counsel of her belief that the meet and confer discussion on December 20, 2021 relieved BabyBjörn's counsel of “her obligation to respond timely” to the RFPs. (Id.)

Plaintiff also rejects BabyBjörn's assertion that “Plaintiff must first provide documentary proof that she owned the subject baby carrier before any discovery can be directed at BabyBjörn.” (Id. at 2.) Plaintiff emphasizes that at a January 3, 2022 Scheduling Conference, presiding district judge, the Honorable Mark Scarsi, warned Defendants that even without the subject baby carrier, “you don't want to risk putting yourself in the same situation by not being responsive to discovery.” (Id.; Andrus Decl., ¶ 4, Ex. 3 at 13:7-8.)

*4 In the Motion, Plaintiff presents two primary arguments: (1) there is no basis for Defendant to refuse to respond to discovery until Plaintiff provides “documentary proof of product ownership;” and (2) by failing to timely respond or serve objections to the RFPs, Defendant has waived all objections. (Joint Stip. at 3-5.) Plaintiff represents that the information sought in the RFPs is relevant and proportionate to the needs of the case in light of the allegations in the SAC. (Id. at 6-7.) In addition, Plaintiff argues that it does not need to seek discovery from BabyBjörn before seeking discovery from third parties. (Id. at 9-10.)

Plaintiff emphasizes that with just six months remaining before the close of fact discovery on July 25, 2022, Defendant has neither provided written responses nor produced any documents in response to the RFPs. Accordingly, Plaintiff seeks an Order finding that BabyBjörn's objections to Plaintiff's RFPs are waived and that BabyBjörn must produce all responsive documents within 21 days. (Id. at 11.)

b. BabyBjörn's Arguments

BabyBjörn argues that it need not and cannot provide meaningful discovery responses because “Plaintiff has failed to present any objective evidence of product identification to support her claims.” (Joint Stip. at 12.) BabyBjörn also contends that Plaintiff cannot seek discovery from third parties by way of subpoena unless and until Plaintiff first obtains discovery from BabyBjörn. (Id. at 16-17.)[3] According to BabyBjörn, absent objective evidence that Plaintiff owned the subject baby carrier, “the scope and relevance of the requested documents in both Plaintiff's discovery demands and the subpoenas [are] in controversy.” (Id.)

BabyBjörn maintains that Plaintiff wrongly asserts that BabyBjörn has “waived its objections to [Plaintiff's] first set of discovery requests, despite the fact that BabyBjörn spent over an hour meeting and conferring with Plaintiff's counsel regarding its objections to the forty-six requests in general and also specific to 12 of the demands.” (Id. at 12-13.) In addition, BabyBjörn asserts that its “objections were memorialized by Plaintiff's counsel herself” in correspondence dated December 22, 2021. (Id. at 13.)

BabyBjörn contends that product identification is critical in this case, and despite nearly two years of litigation, Plaintiff “has yet to present any objective evidence to support that (1) the alleged baby carrier at issue was manufactured by BabyBjörn, (2) that there was [a] defect in the product ; and (2) [sic] that the minor O.T.'s alleged injuries were caused or contributed by her use of the alleged baby carrier for any period of time.” (Id.) BabyBjörn insists that what may be relevant in responding to the RFPs “remains unknown” without objective product identification. (Id. at 21.)[4] BabyBjörn represents that BabyBjörn and BabySwede each responded to Plaintiff's corrected Set Two of Requests for Production of Documents indicating that “there are no responsive documents to Plaintiff's requests.” (Id. at 14.)

*5 BabyBjörn further argues that the Rule 45 subpoenas that Plaintiff served in September 2021 on Dr. Charles Price, the IHDI, and Orlando Health Foundation (together, the “Subpoenas”) are objectionable because of “overbreadth of the scope of Plaintiff's requests on the non-parties, but also on the basis of relevance given that the action had just commenced and initial disclosures had yet to be exchanged.” (Id. at 16.) BabyBjörn contends that the Subpoenas were improper because Plaintiff is seeking to obtain BabyBjörn's “potentially confidential documents directly from the third parties prior to requesting them from BabyBjörn.” (Id. at 20.)

BabyBjörn maintains that the discovery Plaintiff seeks can be “properly denied” because Plaintiff's lack of objective proof of product purchase, “destroy[s] the relevance of Plaintiff's discovery requests to not only BabyBjörn and BabySwede, but also relative to the non-party discovery, and ultimately her standing to bring the instant lawsuit.” (Id. at 24.)

Finally, BabyBjörn argues that it did not waive its objections because “the parties were in the midst of meeting and conferring” and BabyBjörn had already objected to Plaintiff's RFPs “with the understanding that discussions would continue.” (Id. at 24-25.) BabyBjörn represents that “Plaintiff's counsel has been aware of BabyBjörn's objections to the scope of the discovery, relevance, and potential privileges from the point of first contact and Plaintiff's participation in conversations with third-parties' counsels relative to the subpoenas.” (Id. at 25.) Thus, BabyBjörn argues that Plaintiff's assertion that BabyBjörn's objections have been waived “should be disregarded.” (Id. at 28.)

c. Plaintiff's Supplemental Memorandum

On March 9, 2022, Plaintiff filed a Supplemental Memorandum in support of the Motion to Compel pursuant to Local Rule 37.2-3, with a Supplemental Declaration of Lori E. Andrus (“Supp. Andrus Decl.”). (Dkt. No. 99.) In the Supplemental Memorandum, Plaintiff responds to BabyBjörn's arguments emphasizing that BabyBjörn cites no authority “for the proposition that discovery directed to a defendant should be suspended until documentary proof of ownership of the product has been provided.” (Supp. Mem. at 1.) Plaintiff argues that while she has been unable to provide proof of purchase of the subject baby carrier, both BabyBjörn's “Active” and “Original” baby carriers are defective because neither model is “hip healthy.” (Id.)

Plaintiff represents that “[s]ince neither model adequately supports the infant's hips, Plaintiff's allegations—that BabyBjörn's baby carriers are defective and carry a risk of hip dysplasia—apply to both products.” (Id.) That said, Plaintiff emphasizes that her “efforts to uncover documentation of the purchase of the baby carrier are ongoing.” (Id. at 2.) Furthermore, Plaintiff maintains that the allegations of the SAC are sufficient to put BabyBjörn on notice of the nature of Plaintiff's claims “and the documents are thus discoverable.” (Id. (citing Bjorn v. Wright Medical Technology, Inc., 2017 WL 10434388, *3-4 (C.D. Cal. Jan. 25, 2017).)

Plaintiff also notes that “[t]he day before the deadline to file the [Motion to Compel], BabyBjörn finally provided written responses to Plaintiff's document requests, consisting almost entirely of impermissible boilerplate objections.” (Id.) Plaintiff argues that the late responses are inadequate and do not cure the waiver that resulted from BabyBjörn's initial failure to timely respond and/or object. (Id.) Plaintiff points out that despite asserting that it could not respond to the RFPs without first having documentary evidence of Plaintiff's specific product purchase in the recently served late responses, BabyBjörn “apparently was able to answer Requests 1, 9, 10, 11 and 12” by indicating that it has no responsive documents. (Id.) Plaintiff also notes that this response is inconsistent with BabyBjörn's other statement in the responses that “the relevance and scope of each Request is ‘not discernable at this time.’ ” (Id. at 2-3.)

*6 On the issue of the third-party Subpoenas, Plaintiff argues that the cases BabyBjörn relies upon are factually distinguishable and/or apply an outdated discovery standard, such that they do not support an order quashing the Subpoenas at issue here. (Id. at 3-4.) Finally, Plaintiff points out that BabyBjörn cites no legal authority requiring that Plaintiff first seek discovery from BabyBjörn before pursuing discovery from third parties. (Id. at 4-5.) Plaintiff points to Rule 26(d), which states that “methods of discovery may be used in any sequence.” (Id. (citing FED. R. CIV. P. 26(d)(3)(A)).) Moreover, Plaintiff argues that the issue is now moot because “Judge Kidd in the Middle District of Florida denied the Subpoenaed Parties' Motion to Transfer and granted Plaintiff's Motion to Enforce Subpoenas after the Subpoenaed Parties failed to timely oppose Plaintiff's Motion to Enforce.” (Id. at 5; Andrus Supp. Decl., Ex. 1.)

Plaintiff asks the Court to find that all of BabyBjörn's objections have been waived, and compel BabyBjörn to produce all responsive documents within 21 days. (Supp. Mem. at 5.)

d. Discussion

As an initial matter, Defendants' insistence that they had no obligation to provide written responses and/or objections to Plaintiff's RFPs because Defendants had communicated their objections to the RFPs during meet and confer conversations and Defendants expected those discussions to continue is wholly without merit. Indeed, Defendants cite no authority beyond their own ipse dixit to support this assertion. Nor can they.

Discovery in this strict products liability action is governed by the Federal Rules of Civil Procedure. With respect to requests for production of documents, Rule 34 expressly provides:

FED. R. CIV. P. 34(b)(2)(A) (emphasis added). In addition, Rule 34 requires that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” FED. R. CIV P. 34(b)(2)(C). Thus, Rule 34 plainly contemplates that objections must be in writing and provided within the response deadline. Notably, Defendants do not even mention Rule 34 in their portion of the Joint Stipulation.

The text of Rule 26 also exposes the fallacy of Defendants' argument that they did not need to timely serve written responses or written objections because they had expressed their objections during the meet and confer discussions and Plaintiff's lawyer had summarized Defendants' objections in her subsequent correspondence. Rule 26(g) requires that “every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name—or by the party personally, if unrepresented.” FED. R. CIV. P. 26(g)(1) (emphasis added). Thus, Rule 26 clearly requires that objections be submitted in writing.

Plaintiff has presented evidence confirming that Plaintiff agreed to extend Defendants' response deadline to January 7, 2022. (Andrus Decl., ¶ 1, Ex. 1.) The record contains no further extension of the response deadline. Defendants served neither written responses nor objections signed by their counsel, as required by Rule 26, prior to the agreed January 7, 2022 deadline and has yet to do so. The Court concludes that Defendants' failure to comply with the Federal Rules of Civil Procedure is substantially unjustified.

*7 Plaintiff served a first set of RFPs to BabyBjörn on November 12, 2021. (Andrus Decl., ¶ 6, Ex. 5.) The RFPs define BABY CARRIER, when capitalized as “the soft-sided wearable infant carrier(s) designed, manufactured, marketed, and/or sold by YOU” and without capitalization as referring “generally to soft-sided wearable infant carrier(s), regardless of who designed, manufactured, marketed, and/or sold them.” (RFP Set One at p. 1, Andrus Decl., Ex. 5.)

The RFPs set out 46 separate requests for documents pertaining to, inter alia, the development, marketing, research, and notice of hip dysplasia or “other hip-related injury(ies)” allegedly caused by BabyBjörn's baby carriers, data and/or analysis from social media concerning BabyBjörn's BABY CARRIERS, and BabyBjörn's decision to discontinue sales of its baby carriers (RFP Nos. 1-9, 38-43); documents relating to any investigation and regulatory actions that pertain to hip dysplasia or other hip-related injuries to infants relating to BabyBjörn's BABY CARRIERS (RFP Nos. 10-13); communications between BabyBjörn and anyone affiliated with the IHDI, including documents concerning IHDI's consideration of a “Hip Healthy” designation for BabyBjörn's BABY CARRIERS, payments to IHDI or any group “conducting research on a possible link between hip dysplasia or other hip-related injury(/ies) and baby carriers” (RFP Nos. 14-28); proposed labelling or marketing materials for BabyBjörn's BABY CARRIERS that reflect proposed or draft language about hip dysplasia of other hip-related injuries, and public safety pronouncements (RFP Nos. 29-32); manuals, instructional materials, and packaging for “the ‘Original’ BabyBjörn baby carrier from 2008 to 2013” (RFP Nos. 33-34); documents relating to BabyBjörn's internal organizational structure, document destruction policies, and any documents concerning Plaintiff (other than those produced to BabyBjörn by Plaintiff) (RFP Nos. 35-37); and documents reflecting BabyBjörn's procedures to collect and/or categorize complaints about the quality of its BABY CARRIERS, public opinion polls, focus groups or market studies for BabyBjörn's BABY CARRIERS (RFP Nos. 43-46).

The Court concludes that the information Plaintiff seeks in the RFPs is both relevant to the claims and defenses at issue and proportionate to the needs of the case. Relevance is squarely grounded in Plaintiff's allegations that O.T. was carried as an infant in BabyBjörn's BABY CARRIER for extensive periods of time and suffered hip dysplasia as a result of the allegedly defective design of the BABY CARRIER. (See SAC at ¶¶ 1-3.) Rule 26(b)(1)'s proportionality requirements are satisfied in light of the importance of the issues at stake, i.e., infant safety, the amount in controversy, BabyBjörn's clear access to the information sought, the parties' relative resources, and the importance of the discovery in resolving the issues. Finally, Defendants have made no showing that the burden or expense of the proposed discovery outweighs its likely benefit.

Defendants' argument that Plaintiff must first provide objective proof of purchase before Defendants are required to respond to discovery is wholly without merit. Indeed, Defendants cite no case or rule that so holds. Nor can they. To the extent Defendants believe Plaintiff may lack standing to bring this lawsuit, they can bring a dispositive motion and present those arguments to Judge Scarsi. But that argument does not relieve Defendants of the obligation to timely respond to Plaintiff's properly served discovery requests.

*8 By failing to timely answer and/or serve written objections to the RFPs, Defendants waived all objections to the RFPs. The Ninth Circuit has long held that if a party fails to file timely objections to discovery requests, that failure constitutes a waiver of any objection the party might have to the discovery requests. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“Richmark”) (“[F]ailure to object to discovery requests within the time required constitutes a waiver of any objection[s].”), cert. dismissed, 506 U.S. 948 (1992). Thus, this Court, consistent with Richmark, will not consider Defendants' objections that were not asserted within the time required and will not consider objections raised for the first time either in the Joint Stipulation or Defendants' belated responses to Plaintiff's RFPs served just before the Joint Stipulation was filed. (See Supp. Mem. at 2; Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. Apr. 15, 2005).)

Accordingly, Plaintiff's Motion to Compel is GRANTED in its entirety and the Court concludes that Defendant has waived all objections, including attorney-client by failing to timely respond to Plaintiff's RFPs.

When, as here, a motion to compel is granted in its entirety, Rule 37 provides that “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” FED. R. CIV. P. 37(a)(5)(A) (emphasis added). An award of discovery sanctions for a party's nondisclosure is mandatory unless the court determines that the opposing party's nondisclosure was substantially justified or other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(a)(5)(A)(ii), (iii).

Here, based on the facts and analysis outlined above, the Court concludes that Defendants' failure to timely respond to Plaintiff's RFPs was not substantially justified and an award of expenses to Plaintiff would not be unjust. Accordingly, Plaintiff may bring a regularly noticed motion, with appropriate supporting documentation, for an award of its reasonable expenses, including attorney's fees, in making the instant Motion to Compel. A hearing on the Rule 37 sanctions motion should be set on the Court's regular motion calendar.

IV. DEFENDANT'S PROTECTIVE ORDER CROSS-MOTION IS DENIED AS MOOT

On February 17, 2022, BabyBjörn filed an Amended Notice of Cross-Motion and Cross-Motion for Protective Order. (Dkt. No. 95.) In the PO Cross-Motion, BabyBjörn seeks “entry of a protective order relative to Plaintiff's First Set of Requests for Production of Documents ... and Plaintiff's requests to non-parties for Defendants' documents.” (Id. at 2.) Because the Court has addressed Plaintiff's RFPs above and resolved that issue in Plaintiff's favor, here, the Court limits its discussion to the parties' arguments concerning Plaintiff's Subpoenas served to the Florida non-parties.

Rule 45 governs discovery of non-parties by subpoena. The scope of discovery that can be obtained by a subpoena under Rule 45 is the same as that under Rule 26(b). See FED. R. CIV. P. 45 Advisory Comm.'s Note (1970). The Court must quash or modify a subpoena that requires a person to comply beyond the geographical limits specified in Rule 45(c); or subjects a person to undue burden. FED. R. CIV. P. 45(d)(3)(A). The party seeking to quash a subpoena has the burden of persuasion under Rule 45(d)(3). See, e.g., Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005); Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). A non-party recipient of a Rule 45 subpoena that seeks production of documents may serve objections to a request for production of documents contained in a Rule 45 subpoena within fourteen (14) days of service of the subpoena or by the date for production set in the subpoena, whichever is earlier. FED. R. CIV. P. 45(d)(2)(B).

a. The Subpoenas

*9 As noted above, in September 2021, Plaintiff served Rule 45 Subpoenas upon two entities and an individual in Orlando, Florida: a document subpoena to IHDI (Andrus Decl., ¶ 7, Ex. 6); a document subpoena to Orlando Health Foundation (id., Ex. 7); and a deposition subpoena to Dr. Charles Price (id., Ex. 8).

b. Defendants' Arguments

In the Protective Order Cross-Motion, Defendants argue that they are entitled to a protective order to prevent Plaintiff from seeking this third-party discovery until Plaintiff has first sought the information from Defendants and that Plaintiff should not be permitted to seek Defendants' confidential documents from these third parties. (See PO Cross-Motion.)

c. Plaintiff's Opposition

Plaintiff responds that Rule 26(d) permits a party to use discovery mechanisms in any sequence. (Supp. Mem. at 4-5.) More importantly, however, Plaintiff emphasizes that BabyBjörn's cross-motion for a protective order to preclude the third-party discovery is now moot. (Id.) Judge Kidd, in the Middle District of Florida, the district court with jurisdiction to enforce the subpoenas, recently denied the Subpoenaed Parties' Motion to Transfer and granted Plaintiff's Motion to Enforce the Subpoenas. (Supp. Mem. At 5; Andrus Supp. Decl., Ex. 1.)

d. Discussion

Based on the Middle District of Florida's rulings, the Court agrees with Plaintiff that the Protective Order Cross-Motion is moot. Therefore, BabyBjörn's Protective Order Cross-Motion is DENIED.

For the reasons outlined above, the Court rules as follows:

IT IS SO ORDERED.