*1 This matter is before this court on three pending discovery motions.[1] First, this order rules on the motion of Defendant Alan Lupton Associates Inc. (“ALA”) to quash the subpoena duces tecum (hereafter, the “Subpoena”) that Plaintiffs Electro-Mechanical Products, Inc., David P. Morris, and David J. Wolenski (collectively referred to as “EMP” or Plaintiffs) served to non-party Viasat, Inc. (“Viasat”). ECF No. 48. Second, this order rules on EMP's related motion to reopen discovery, ECF No. 58. Both of these motions are opposed and fully briefed. The undersigned Magistrate Judge considers the motions pursuant to 28 U.S.C. § 636(b)(1)(A) and the Memoranda dated April 28, 2023, and May 11, 2023. ECF Nos. 49, 59. See also Order Referring Case, ECF No. 14. For the reasons that follow, the court GRANTS Plaintiffs’ motion to reopen discovery and DENIES ALA's motion to quash.

The third discovery motion—EMP's motion for contempt sanctions against Viasat, ECF No. 44—is not yet fully briefed. However, to allow more focused and efficient briefing, the court narrows that motion to a motion to compel, i.e., the court DENIES IN PART motion No. 44 as to contempt sanctions, and otherwise DEFERS RULING on that motion until it is fully briefed.

The procedural history that forms the backdrop for ALA's motion to quash and EMP's motion to reopen is convoluted. The court summarizes only the history and allegations that are most pertinent to these motions.

Plaintiffs filed this diversity action on March 28, 2022. ECF No. 2. The case arises from a written contract for sales and marketing services between EMP and ALA dating from 1989, as amended in March 2000. ECF No. 84-1 (referred to hereafter as the “Amended Contract”). Since filing its original complaint, EMP has alleged that ALA breached the Amended Contract by marketing products for a competitor of EMP, “PGM Corp.” ECF No. 2 ¶ 18 (original complaint); ECF No. 84 ¶ 17 (second amended complaint, “SAC”). EMP sues ALA for breach of contract and unjust enrichment.[2]

On July 6, 2022, Magistrate Judge S. Kato Crews set the “Close of Fact Discovery” for March 15, 2023. ECF No. 29 (Scheduling Order) at 10.

EMP asserts that since the scheduling order entered, it has taken or defended twelve depositions, produced over 40,000 pages of documents, and issued numerous written discovery requests.

Among those twelve depositions, on January 25 and 26, 2023, EMP took the depositions of corporate representatives of PGM Corp. and MKS Instruments, Inc. (“MKS Instruments”). MKS Instruments is a customer to whom ALA sold parts of another competitor of EMP, C&M Machine Products, Inc. t/a C&M Precision Tech (“C&M Precision”). ECF No. 58 at 1-2. EMP asserts that in these depositions, it “learned, for the first time, that ... [ALA] had brokered the sale of parts manufactured by PGM Corp. to ... Viasat. EMP also learned for the first time in these depositions that Lupton Associates sold the parts of [C&M Precision], another competitor of EMP, to MKS Instruments.” ECF No. 58 at 1-2.

*2 Four days after the depositions of PGM and C&M Precision, on January 30, 2023, EMP issued a request for production (no. 17) to ALA, requesting that ALA:

ECF No. 58 at 3. EMP states that it wished to pursue obtaining these documents from ALA first, before subpoenaing them from the non-party Viasat.

On February 2, 2023—approximately one week after the depositions of PGM and C&M Precision—EMP moved for leave to file the SAC to add allegations concerning the same facts. ECF No. 37. This court granted that motion on July 10, 2023. ECF No. 80. Thus, EMP now alleges that (1) “Lupton Associates assisted PGM in selling its products to a customer called Viasat, Inc.” ECF No. 84 ¶ 17; and (2) Lupton Associates also breached the Amended Contract by “selling the products of a company called C&M Machines Products, Inc. t/a C&M Precision Tech (“C&M”) to MKS Instruments Inc. C&M is a direct competitor of EMP.” Id. ¶ 18.

On March 1, 2023, ALA responded to EMP's discovery request by stating:

Id. at 4.

EMP asserts that ALA's counsel did alert Viasat to the request, as ALA had said it would. However, in EMP's view, ALA did so in such a manner as to run out the clock on fact discovery while EMP forewent filing a motion for the documents, in the hope that a production from ALA was forthcoming. EMP asserts that ultimately, ALA produced only the “sales numbers but redacted out any information which would identify the parts.” ECF No. 78 at 5.

The day before the close of fact discovery, on March 14, 2023, EMP issued the Subpoena to Viasat.[3] The Subpoena requests three categories of documents, the first of which is:

ECF No. 58 at 4; see also ECF No. 44-1 (the Subpoena) at 4, Category 1. The second and third categories ask more broadly for Viasat's purchases of parts from PGM and C&M Precision. In conferral (or at least in its present briefing), it appears EMP narrowed all three categories to (a) engineering drawings of the parts that ALA marketed to Viasat, (b) the sales prices, and (c) the sales quantities. ECF No. 78 at 4.

EMP had the Subpoena hand-delivered to an assistant in Viasat's office on March 20, 2023. ECF No. 44-1 at 5. After Viasat asserted this was not proper service, EMP had the Subpoena hand-delivered to Viasat's registered agent on March 31, 2023. Id. at 6. The Subpoena gave Viasat 14 days to produce. Id. at 1. Thus, the documents were due either April 3 (if the March 20 hand-delivery was proper service) or April 14, 2023—approximately one month after the close of fact discovery. EMP asserts that it conferred with Viasat several times, and Viasat ultimately objected to producing any documents.

*3 On April 24, 2023, EMP filed its motion to impose contempt sanctions against Viasat for what EMP refers to as “willful disregard” of the Subpoena. ECF No. 44.

Four days later, on April 28, 2023, ALA filed its motion to quash the Subpoena. ECF No. 48. ALA argues the Subpoena is untimely and seeks irrelevant information. ALA argues the information is irrelevant because under the Amended Contract, the only issue is whether the sales were of “competitive products,” which the parties defined in their 2000 amendment as “products of a general-purpose production machining job shop.” ECF No. 84-1 at 5 ¶ 2.[4] ALA notes that in deposition, PGM said it is not a general-purpose production machining job shop. ECF No. 48 (citing ECF No. 48-2, deposition of PGM Corp. Rep. Todd Hockenberger at 52:13-25).[5] ALA further argues that the requested sales information also would not decisively establish EMP's damages; ALA notes that EMP had not previously even identified the categories of damages it seeks in this case. In addition, ALA argues that the requested documents are confidential, apparently meaning they are confidential to both ALA and Viasat. ECF No. 48 at 5; ECF No. 69 (Reply Brief) at 4, n.2. Viasat did not join in the motion to quash.

On May 1, 2023, the parties had a discovery conference with Judge Crews regarding request for production no. 17. ECF No. 74. In that conference, ALA informed EMP and the court that (other than the sales data it produced in a supplement), ALA had no documents responsive to the request. It asserted that the “work that PGM does for ViaSat is subject to ITAR security protocols such that these drawings are not available for Lupton to produce.” ECF No. 52 (Joint Discovery Statement).[6] EMP contested that assertion, arguing that in its prior business with ALA, ALA always had engineering drawings and sales data for orders that it presented to EMP, and the same should be true with respect to orders placed by Viasat and MKS Instruments. Judge Crews held that on the current record, he could not compel ALA to produce documents that it did not have. Id.

On May 5, 2023, Viasat moved for an extension of time to respond to EMP's motion for sanctions. ECF No. 54. This court granted that request, delaying the deadline for Viasat's response until 14 days after the court rules on the motion to quash. ECF No. 57. Thus, as noted above, Viasat's response to the motion for sanctions is not yet due.

On May 11, 2023, to address ALA's untimeliness argument, EMP filed its motion to reopen. ECF No. 58. EMP seeks to reopen discovery for 30 days, for the limited purpose of pursuing the engineering drawings and sales data for PGM's sales to Viasat that ALA marketed, and C&M Precision's sales to MKS Industries that ALA marketed. EMP clearly seeks to reopen discovery to pursue the Subpoena. It also wishes to issue other discovery concerning the ALA sales of C&M Precision products to MKS Industries.

*4 On May 15, 2023, ALA filed a motion for summary judgment. ECF No. 62. That motion is not referred to this court.[7]

On May 16, 2023, EMP responded to ALA's motion to quash, arguing the motion to reopen discovery resolved the timeliness issue. It also argues that ALA lacks standing to object to the Subpoena, and that ALA's other arguments are incorrect and cannot support quashing the Subpoena. ECF No. 65.

On June 1, 2023, ALA filed its opposition to the motion to reopen. It relies on many of its arguments from the motion to quash, including that the discovery EMP seeks is irrelevant. It further argues that EMP was not diligent with respect to this discovery during the several months that the scheduling order provided. ECF No. 74. ALA also argues that it would be prejudiced if discovery is reopened because ALA has already filed its summary judgment motion, consistent with the dispositive motions deadline. ALA argues for summary judgment on several grounds, including (as pertinent here) that EMP has no evidence of damages.

In reply, EMP disagrees with each of ALA's assertions. EMP argues that as to relevance, ALA cannot avoid discovery based on ALA's unilateral views of how the Amended Contract should be interpreted, or the strength of the sales data for supporting damages. EMP argues that “competitive products” must be understood in light of how EMP has developed over the course of the parties’ multi-decade relationship from a general-purpose shop to one encompassing precision work. EMP argues it was diligent during the discovery period in pursuing the documents relating to ALA's sales of PGM products to Viasat, and ALA's sales of C&M Precision products to MKS Instruments. EMP further argues that contrary to ALA's interpretation of EMP's December 2022 subpoena to PGM, that subpoena did request broad categories of documents that encompass the specific types of documents for which EMP now seeks to reopen discovery. Specifically, after the PGM deposition —at which PGM produced only two cursory pages of information—EMP conferred with PGM to request that they produce the engineering drawings and complete sales data. PGM ultimately told EMP it would not do so because it understood discovery had already closed, and there were motions pending about these documents. ECF No. 78.

Most recently, on July 18, 2023, EMP moved to continue the final pretrial conference that had been set before this court for August 2, 2023. ECF No. 85. ALA opposed that request for the same reasons it opposes the motion to reopen discovery. ECF No. 88. In order to consider the discovery motions, this court continued the final pretrial conference to September 12, 2023. ECF No. 90.

I. ALA's Motion to Quash the Subpoena

“[A]bsent a claim of privilege, a party has no standing to challenge a subpoena to a nonparty.” S.E.C. v. Goldstone, 301 F.R.D. 593, 646 (D.N.M. 2014) (internal quotation marks omitted). “The exception to this rule is that a party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests.” Id. (internal quotation marks omitted). A legitimate interest is one of privilege, privacy or confidentiality. See, e.g., Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997); Vyanet Operating Group, Inc. v. Maurice, Civ. 1:21-cv-02085-CMA-SKC, 2023 WL 3791458, at *1, *3, n.3 (D. Colo. June 2, 2023) (“in this district, a party has no standing to quash a subpoena served on a third party unless a claimed privilege or privacy interest is implicated,” and “even where a party has standing to quash a subpoena based on a privacy or personal interest, they lack standing to object based on undue burden”). Cf. Galbraith v. United States, 387 F.2d 617, 618-19 (10th Cir. 1968) (criminal defendant had no constitutional right, either as individual or officer of his company, to object to the government's subpoena for bank records of the company's accounts).

*5 In light of these cases, the court does not consider the requirement of standing to be a mere matter of form over substance, as ALA argues. ALA does not have standing to raise arguments concerning relevance, burden, confidentiality or any other issues on Viasat's behalf. To the extent ALA argues the Subpoena seeks documents that are confidential to ALA, it does not argue, let alone show, that the existing protective order is inadequate to protect its interests.

The court does, however, have inherent power to enforce the scheduling order's deadline on fact discovery. Dedmon v. Cont'l Airlines, Inc., Civ. No. 13-cv-0005-WJM-NYW, 2015 WL 1740095, at *2 (D. Colo. Apr. 14, 2015) (citing Grant v. Otis Elevator Co., 199 F.R.D. 673, 675 (N.D. Okla. 2001); Rice v. United States, 164 F.R.D. 556, 558 (N.D. Okla. 1995)). ALA is correct that the Subpoena was untimely when EMP issued it; Viasat's compliance deadline did not fall within the close of fact discovery on March 15, 2023. See, e.g., Dedmon, 2015 WL 1740095, at *2 (collecting cases). Because this issue dovetails with EMP's motion to reopen discovery, the court will address it in analyzing the latter motion.

II. EMP's Motion to Reopen Discovery

The decision whether to reopen fact discovery is in the court's discretion. Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). This court is to consider at least six relevant factors:

Id. See also Fed. R. Civ. P. 6(b)(1)(B) (party seeking to extend a deadline that passed before making the request must show “excusable neglect”).

As to the first factor, the trial date is not yet set. As noted above, the trial date will not be set until this court holds the final pretrial conference, and that will not be until September 12, 2023. ECF No. 90. Accordingly, the first factor weighs in favor of reopening discovery.

EMP's request to reopen discovery is opposed. The second factor thus weighs against reopening.

As to prejudice to ALA, the court finds that the limited reopening of discovery that EMP seeks would not prejudice ALA. Although ALA argues it will be prejudiced because it already filed its summary judgment motion, any prejudice is self-induced. ALA filed its motion for summary judgment after EMP's motion to reopen discovery, which teed up the question of whether EMP could pursue discovery to obtain evidence of damages. Instead of plunging ahead and seeking summary judgment based on EMP allegedly having no such evidence, ALA could and should have sought an extension of the dispositive motions deadline. ALA also could and should have raised much sooner its concerning assertion that EMP has not even disclosed categories of its damages.[8] Fed. R. Civ. P. 37(a)(3)(A). Moreover, the court notes that EMP's asserted lack of damages is just one of several grounds on which ALA seeks summary judgment. In short, the court is not persuaded that ALA will be prejudiced by the limited reopening of discovery. The third factor thus weighs in favor of reopening.

*6 The fourth factor—EMP's diligence during the discovery period—likewise weighs in favor of reopening. ALA notes correctly that the Subpoena was untimely, but it was only untimely by a few weeks. EMP did issue the subpoena within the fact discovery period. It also promptly served the subpoena after notice to ALA, as required under Rule 45(a)(4). While in hindsight EMP should have pursued the Subpoena simultaneously with EMP's request for production to ALA, EMP was not wrong in anticipating that Viasat would refuse to produce documents if EMP had not first attempted to obtain them from ALA. Moreover, ALA's March 1, 2023 objection to EMP's request for production did not make plain that ALA had no responsive documents. To the contrary, the objection seems to imply that ALA did have responsive documents, and if Viasat agreed under its confidentiality agreement that ALA could produce them, it would do so. It appears that ALA did not inform EMP that ALA lacked responsive documents until the May 1, 2023 discovery conference.

ALA also argues that EMP could have, but did not, seek the documents in question from PGM. Contrary to ALA's assertion, EMP's earlier (December 2022) subpoena to PGM did seek categories of documents that were broad enough to encompass the more specific categories that it now seeks from Viasat. ECF No. 48-1 at 7. When EMP later conferred with PGM to comply with the document requests in that subpoena, PGM refused to produce the documents because it understood the fact discovery cutoff had passed and that EMP's request for the documents were the subject of pending motions.

In short, although EMP could have requested an extension of the discovery cutoff before it expired, and did not do so, the circumstances that it describes in conferring with both ALA and Viasat suggest that EMP nonetheless acted with diligence in pursuing this discovery. The fourth factor therefore weighs in favor of granting EMP's request to reopen discovery.

The fifth factor concerns the foreseeability of the need for additional discovery in light of the time allowed for discovery. ALA argues that EMP should have foreseen the need for this discovery because EMP has always alleged that ALA sold PGM parts, in breach of the Amended Complaint, and EMP has always known it would need to establish damages for its claims. Respectfully, this court disagrees. The question is whether it was foreseeable to EMP that it would need additional discovery beyond the discovery cutoff. See, e.g., Hale v. Coors Distrib. Co., Civ. No. 08-cv-01104-REB-KLM, 2009 WL 1600678, at *3-4 (D. Colo. June 5, 2009) (finding that the moving party could not foresee the need for the additional discovery because counsel was unaware of the non-moving party's computer system, to know how to frame her discovery requests during the discovery period).

While this court does not decide whether (a) ALA's counsel “interfered with” or frustrated Viasat's (or PGM's) compliance with subpoenas as EMP suggests, (b) Viasat and PGM learned of the discovery cutoff by independent research, or (c) EMP's counsel simply did not clearly and consistently identify all of the types of documents he wanted, it is clear that EMP could not reasonably foresee until the end of discovery (or shortly before it) that ALA would deny having responsive documents. EMP notes, for instance, that in its long-standing, prior business relationship with ALA, ALA had the engineering drawings for orders it was marketing. ALA did in fact produce sales data to EMP, though it redacted the identities of the parts.[9] The court finds the fifth factor weighs in favor of reopening discovery.

*7 Finally, the sixth factor asks whether the proposed additional discovery is likely to lead to the discovery of relevant evidence. EMP argues that the engineering drawings and sales data are directly relevant to showing the parts in question were products subject to the Amended Contract's provision that EMP contends ALA breached. ALA vigorously disputes this point, essentially arguing that EMP is wrongly expanding the scope of the Amended Contract's restrictions on ALA's marketing for EMP competitors.

But that is a merits question for Chief Judge Brimmer or the jury to decide. This court will not limit the scope of relevance to only that which would be relevant to ALA's interpretation of the Amended Contract. See, e.g., Gulf Coast Shippers Ltd. P'ship v. DHL Express (USA), Inc., No. 2:09CV221, 2015 WL 127857, at *2 (D. Utah Jan. 7, 2015) (“This court is not willing to allow one party to determine unilaterally what is relevant, insofar as discovery is concerned, for the opposing party.”); see also Fed. R. Civ. P. 26(b)(1) (“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,” subject to limitations not at issue here).

In sum, five of the six Smith factors weigh in favor of the limited reopening of discovery that EMP requests. The court also concludes, based on the same facts stated above, that EMP has met the “excusable neglect” standard of Rule 6(b) for extending a deadline that had already passed.

Accordingly, the court GRANTS the motion to reopen discovery. EMP has until August 28, 2023, in which to pursue (1) the Subpoena to Viasat, as narrowed by EMP in conferral and the briefs; (2) the December 2022 subpoena to PGM, as to the categories of documents narrowed by EMP in conferral and the briefs; and (3) a subpoena duces tecum to C&M Precision and/or MKS Industries for the engineering drawings of parts that ALA brokered or marketed for C&M Precision to MKS Industries. Fact discovery is not reopened for any other purpose.

Because the court is reopening discovery and ALA lacks standing to challenge the Subpoena except as to timeliness, ALA's motion to quash the Subpoena is DENIED.

III. EMP's Motion for Contempt Sanctions

Finally, to address EMP's motion directed against Viasat more efficiently once it is fully briefed, the court denies that motion in part as to contempt sanctions. EMP has not shown any basis on which the court would award contempt sanctions against Viasat at this point. As EMP argues, contempt is generally reserved for a “violation of a court order.” ECF No. 44 at 5 (emphasis added, quoting Hyde Constr. Co. v. Koehring Co., 388 F.2d 501, 511 (10th Cir. 1968)).

Rule 45 provides that if a subpoena recipient serves an objection to the subpoena, then “on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. ... These acts may be required only as directed in the order.” Fed. R. Civ. P. 45(d)(2)(B)(i), (ii) (in relevant part; emphasis added). Rule 45(g) provides that the court “may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena,” but this authorizes contempt sanctions only as to a person “who fails entirely to obey a subpoena.” Fed. R. Civ. P. 45(g), Advisory Committee Note to 2013 Amendment (emphasis added). “In civil litigation, it would be rare for a court to use contempt sanctions without first ordering compliance with a subpoena, and the order might not require all the compliance sought by the subpoena.” Id. Thus, “[t]he district judge normally will preface a contempt citation with an order directing either compliance with the subpoena or a showing of an excuse for the noncompliance.” Wang v. All. for Sustainable Energy, LLC, Civ. No. 20-cv-03780-NYW, 2022 WL 1500779, at *7 (D. Colo. May 12, 2022) (quoting 9A Wright & Miller et al., Federal Prac. & Proc. § 2465 (3d ed. 1999) (October 2020 update)).

*8 In this case, the email correspondence attached to EMP's motion reflects that Viasat objected in writing to the Subpoena. ECF No. 44-2 at 3. Viasat did not “fail entirely” to obey the Subpoena, and the court sees no circumstances in any of the discovery briefing to date that would make this the rare case in which contempt sanctions would be appropriate before entering an order compelling compliance with the Subpoena. Accordingly, the court denies EMP's motion (ECF No. 44) in part as to contempt sanctions. The court will treat the motion as only a motion to compel compliance with the Subpoena.

For the reasons stated above, ALA's motion (ECF No. 48) to quash the Subpoena is DENIED. EMP's motion (ECF No. 58) to reopen discovery is GRANTED to allow the limited discovery stated above, to be completed by August 28, 2023.

EMP's motion (ECF No. 44) is DENIED IN PART as to sanctions, and the court otherwise DEFERS RULING until after the briefing is complete. Viasat's response to the latter motion is due August 11, 2023.[10] EMP may file a reply, if any, within seven days of Viasat's response.

Two of the three motions were filed before this case was reassigned to this court and also involve a non-party. Thus, discovery dispute practice standards did not apply to those disputes. The third motion was filed before this court adopted a discovery dispute practice standard. However, going forward the parties shall comply with this court's discovery dispute practice standard, available on the court's website.

Plaintiffs’ claims against Alan Lupton have been dismissed with prejudice. ECF No. 42. Thus, ALA is the only remaining Defendant.

EMP asserts that it served the Subpoena on March 14, 2023 (ECF No. 58 at 4), but this is incorrect. EMP only issued the Subpoena that day. ECF No. 44-1 at 1. Elsewhere, EMP recognizes that it had to notify ALA of the Subpoena before serving it to Viasat. Fed. R. Civ. P. 45(a)(4).

The 2000 amendment defined this term for purposes of Paragraph 1 of the original contract, which provides in part that ALA “shall not directly or indirectly solicit orders for or sell any products competitive with [EMP's] products without its written consent.” ECF No. 84-1 at 1.

It is not plain from the excerpt of the PGM deposition what meaning Mr. Hockenberger ascribed to the term “general purpose” machining shop. This court does not make any findings on the meaning of that term in the Amended Contract or otherwise, but only notes ALA's argument as to relevance.

This court takes judicial notice that ITAR stands for International Traffic in Arms Regulations.

Other motions are also pending and not referred to this court, but neither side argues they are pertinent here.

As of the scheduling order, neither side had yet disclosed a “computation of each category of damages,” as required for initial disclosures under Rule 26(a)(1)(A)(iii). ECF No. 29 at 7.

The court also notes that in ALA's reply in support of summary judgment, which is not referred to this court, ALA further asserts that it disclosed Viasat's name in an October 10, 2022 response to written discovery requests. ECF No. 79 at 5-6. ALA asserts that in the response, it disclosed “several of its contact lists which contain multiple entries for contacts at Viasat.” Id.; see also ECF No. 79-3 (excerpts of the contact lists). But even if ALA argued this point in either moving to quash or opposing the motion to reopen discovery (which it did not), ALA does not explain how the mentions of Viasat in ALA's contact list would have alerted EMP that ALA had marketed parts for a competitor of EMP to Viasat.

Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).