*1 This matter is before me on the Motion for Protective Order (ECF No. 416) filed by Defendant Kopin Corporation, Inc. (“Kopin”). On February 3 and 6, 2023, Plaintiff BlueRadios, Inc. (“BlueRadios”) served thirteen subpoenas duces tecum on third parties with which Kopin conducts business. Kopin objects to these subpoenas on the grounds that they (a) inflict harm on Kopin by annoying and harassing entities with which it conducts business; (b) impose an undue burden on the subpoena recipients; and (c) are outside the scope of the limited reopened discovery period. BlueRadios has responded to the Motion, and Kopin has submitted a Reply (ECF Nos. 418 & 429). I find Kopin has failed to establish good cause for a protective order and consequently deny its motion.

On August 3, 2022, I ordered Kopin to produce certain items within 30 days, including all “[a]greements and technology transfers relating to military contracts” and “[d]ocumentation regarding Kopin's negotiations and contractual agreements with other third parties with whom Kopin has a licensing agreement for Golden-i technology or its progeny.” 8/3/22 Order at 35, ECF No. 382.[1] I previously specified that the phrase “Golden-i technology or its progeny” includes any products (1) that are or include a wireless head-mounted device (“HMD”) and (2) to which Kopin contributed technological knowledge to the design and development. 4/6/18 Hearing Tr. at 13:22–14:15, ECF No. 109.

At an October 2022 hearing, I further reopened discovery for the “limited purpose” of permitting BlueRadios to conduct additional depositions based on documents produced in accordance with my August 2022 Order, and for supplementation of the parties’ expert reports. 10/26/22 Hearing Tr. at 26:6–27:5, ECF No. 406.

Kopin produced military contracts, purchase orders, and other relevant documents, but many of its productions fell outside the timeline mandated by my August 2022 Order. Kopin also omitted relevant specifications and failed to produce documents identified or referenced in the purchase orders. See Streisand Decl. Ex. 4, ECF No. 418-5. There is no indication Kopin has produced any evidence of technology transfers. In an email between counsel dated August 24, 2022, an attorney representing Kopin explicitly stated she had “review[ed] the agreements and technology transfers relating to military contracts,” but she nevertheless stated only contracts would be produced. Gibson Decl. Ex. 1, ECF No. 416-2 (emphasis added).

Before Kopin filed its Motion for Protective Order, one of the thirteen subpoena recipients Kopin seeks to protect produced documents directly relevant to BlueRadios’ claims in this lawsuit. The third-party production included “e-mails, contracts, specifications, and drawings that had never been produced by Kopin” related to a military product that communicates wirelessly with a head-mounted device. Resp. to Mot. for Protective Order at 5.

*2 Under Federal Rule of Civil Procedure 26(c), a district court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” A determination of good cause generally requires a court to balance the discovery needs of the party seeking information against the injury that disclosure might cause the party seeking protection. See Exum v. U.S. Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002). It is the moving party's burden to “show that disclosure will result in a clearly defined and serious injury.” Id.; see also Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir. 1981).

Kopin has not shown that disclosure of the subpoenaed information will result in a concrete injury. Although Kopin claims the subpoenas “threaten” its business interests by annoying and harassing its business partners, it provides no evidence of any threat nor any indication that the alleged threat would constitute serious injury. Contrary to Kopin's assertion that the subpoenas impose an undue burden and expense on the third-party companies, the entity who responded to BlueRadios’ subpoena before Kopin filed its Motion for a Protective Order produced responsive documents within a week and made no mention of the subpoena being burdensome. See Streisand Decl. Ex. 1, ECF No. 418-2. Moreover, the subpoenas seek information squarely within Kopin's discovery obligations. Had Kopin provided the information sought, there would be no need for BlueRadios to pursue this information from Kopin's business partners.

Kopin also fails to show good cause for a protective order on the basis that the subpoenas impose an undue burden on the third-party recipients. Kopin argues the subpoenas violate Federal Rule of Civil Procedure 45 by seeking “almost two decades worth of emails, a narrative description ... and by requesting materials that are not related to the subject matter of this case.” Mot. for Protective Order at 3–4. This argument, too, is unavailing. Federal Rule of Civil Procedure 45 governs the requirements of subpoenas issued to non-parties. Here, none of the non-party subpoena recipients have sought a protective order or joined Kopin in its motion. “As a general rule, a party has no standing to quash a subpoena served on a third party, except as to claims of privilege or upon a showing that a privacy interest is implicated.” Mona Vie, Inc. v. Amway Corp., No. 08-cv-02464-WDM-KLM, 2009 WL 524938, at *3 (D. Colo. Mar. 2, 2009). Kopin has made no claim of privilege regarding the documents BlueRadios seeks, nor has it alleged a privacy interest in the requested disclosures. I therefore find that Kopin does not have standing to bring its motion.

Further, I wholly reject Kopin's assertion that the subpoenas request materials unrelated to the subject matter of this litigation. At least one of the subpoena recipients possessed responsive documents that should have been produced by Kopin because they concern “a wireless HMD and ... Kopin contributed technological know-how to the product's design and development.” 8/3/22 Order at 27. This is precisely the sort of relevant information specified in my previous orders, withheld by Kopin, and requested by the subpoenas.

The third-party production also contradicts Kopin's contention that “it is possible the recipient companies incorporated Kopin's products into larger articles of military equipment that incorporate wireless technology, [but] those are their products and their designs. That is not wireless technology that is licensed from Kopin.” Mot. for Protective Order at 6. An email produced by the entity that responded to BlueRadios’ subpoena reveals that in 2019, Kopin was developing a “wireless radio and packet processor [field-programmable gate array] / software subsystem” for an HMD despite the fact that the “contract scope has [those systems] provided by [the third party].” Streisand Decl. Ex. 7 at 2, ECF No. 418-8. Kopin's assertions are therefore not credible.

*3 In its reply, Kopin argues that it “did provide documents detailing what BlueRadios now claims was ‘newly revealed,’ ” citing to purchase orders, invoices, contracts, non-disclosure agreements, and other documents requested by the subpoenas duces tecum. Reply to Mot. for Protective Order at 2. Kopin insists BlueRadios ought to “utilize the information already produced” in order “to determine whether the products identified in the purchase orders can be considered Golden-i or its progeny.” Id. What Kopin does not acknowledge is its failure to produce discovery within the timeline established by my August 2022 Order, or to ever produce the relevant information BlueRadios obtained through one of its subpoenas. Kopin blames BlueRadios for not connecting the dots, but the dots are either out of order or missing altogether. Accordingly, I find Kopin has not met its burden to show good cause for the entry of a protective order.

There is some merit to Kopin's argument that the subpoenas fall outside the scope of the limited reopening of discovery that I granted in October 2022. BlueRadios should have filed a motion to compel or sought a further expansion of the limited discovery period for the purpose of serving the third-party subpoenas. Its ends-justify-the-means defense is unacceptable. And my denial of Kopin's Motion for Protective Order is not a reward for BlueRadios’ improper self-help procedures. Instead, I recognize the high likelihood that I would have granted a motion to compel or a motion to reopen discovery for service of the subpoenas had they been appropriately filed. When considered alongside Kopin's failure to provide relevant discovery in a timely manner and Kopin's lack of good cause for a protective order, BlueRadios’ procedural errors carry little weight.

The remainder of Kopin's arguments regarding the timeliness of the subpoenas have no merit. Kopin contends BlueRadios has been on notice regarding its relationship with the third-party companies since Kopin made its initial financial disclosures. It goes so far as to mention that the companies “were identified in Kopin's public filings with the U.S. Securities and Exchange Commission as early as 2016.” Mot. for Protective Order at 7. Kopin gives short shrift to the convoluted litigation proceedings in this Court or my past findings that it failed to provide adequate discovery. Even more, Kopin utterly ignores its failure to provide the information sought within the firm time frame established by my August 2022 Order. After petulantly refusing to comply with its discovery obligations, I will not countenance its argument now that BlueRadios waited too long to seek this highly relevant information when it is patently clear that BlueRadios will not get the information from Kopin.[2]

Kopin's disregard for its obligation to produce documents related to its contractual agreements for the design and development of HMDs designated for military use was a blatant violation of its discovery obligations as elucidated by this Court. Kopin's decision to seek a protective order for subpoenas of relevant information that it failed to produce is beyond the pale. Kopin's Motion for Protective Order is consequently DENIED. BlueRadios is directed to extend the production deadline for the subpoenas to a date at least two weeks, but no more than three weeks, from the date of this order. Kopin is ORDERED to pay BlueRadios any reasonable costs and attorney fees incurred in opposing the motion. If the parties cannot come to an agreement regarding such costs and fees, BlueRadios shall file a statement detailing its reasonable expenses on or before March 30, 2023.

*4 DATED this 16th day of March, 2023.