Gabet v. Amazon.com Inc.
Gabet v. Amazon.com Inc.
2024 WL 1624337 (S.D. Ind. 2024)
February 7, 2024

Klump, M. Kendra,  United States Magistrate Judge

Protective Order
Third Party Subpoena
30(b)(6) corporate designee
Cost Recovery
Attorney-Client Privilege
Proportionality
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Summary
The plaintiffs filed a motion for a protective order and to quash subpoenas for depositions of four individuals. The court denied the motions due to improper filing and lack of jurisdiction, and also found that the depositions were relevant and non-duplicative. The court ordered the parties to meet and confer to schedule the depositions and stated that the prevailing party is entitled to fees and costs unless the losing party was substantially justified in their position.
Additional Decisions
Renee GABET, Annie Oakley Enterprises Inc., Plaintiffs,
v.
AMAZON.COM INC., John Does 1-50, Defendants
No. 1:22-cv-02246-JPH-MKK
United States District Court, S.D. Indiana, Indianapolis Division
Signed February 07, 2024

Counsel

Paul B. Overhauser, Overhauser Law Offices LLC, Greenfield, IN, for Plaintiffs.
Caroline Desmond, Pro Hac Vice, Klaus H. Hamm, Pro Hac Vice, Robert Cruzen, Pro Hac Vice, Klarquist Sparkman LLP, Portland, OR, for Defendants.
John Does 1-50, Pro Se.
Klump, M. Kendra, United States Magistrate Judge

ORDER

*1 This matter comes before the Court on Plaintiffs’ Motion for a Protective Order and to Quash Subpoenas, Dkt. [225]. For the reasons given below, Plaintiffs’ motion is DENIED and Plaintiffs are ORDERED to show cause why they should not be required to pay the costs and fees incurred by Defendant Amazon in opposing this filing, which was not substantially justified. Fed. R. Civ. P. 26(c)(3), 37(a)(5)(B).
I. Background
Plaintiffs make several motions in their filing. First, Plaintiffs move to quash subpoenas and notices of deposition for Chuck Gabet, Rebecca Burke, Vickie Musselman, and George Pappas because Plaintiffs’ counsel is unavailable for the noticed dates. (Dkt. 225 at 2). Second, Plaintiffs ask these depositions be halted by protective order because they are duplicative or cumulative of Plaintiff Renee Gabet's deposition and Annie Oakley's 30(b)(6) deposition. (Id. at 3). Last, the deposition of Mr. Pappas should be prevented by protective order for the further reason that he is Plaintiff Renee Gabet's attorney and has only privileged information. (Id. at 7). The briefing on this matter proceeded at an accelerated pace owing to the short time between when the matter was brought to the Court's attention on January 31, 2024, (Dkt. 222 at 21:7-22:1), and the noticed dates of the depositions, February 7-12, 2024, (Dkt. 225 at 2). Defendants filed a timely response, (Dkt. 227), and no reply is necessary, (Dkt. 222 at 25:1-2).
II. Discussion
A. Improperly Conjoined Motions
The Court's local rules require motions be filed separately. S.D. Ind. L.R. 7-1(a). Plaintiffs should be well aware this rule, having been reminded of it previously. (Dkt. 148 (denying improperly joined motions for violating this rule)). Nevertheless, Plaintiffs present three motions in one. This alone justifies denying Plaintiffs’ motions. While normally this would be done with permission to refile, the undersigned agrees with Defendant that the schedule in this matter leaves little time for such maneuvering and will additionally address why Plaintiffs’ motions should be denied on the merits.
B. Motions to Quash
Plaintiffs request this Court quash the subpoenas of Chuck Gabet, Rebecca Burke, Vickie Musselman, and George Pappas, all of which require the deponents to appear in Fort Wayne, Indiana. (Dkt. 225-1 at 1 (“[y]ou are commanded to appear at ... 200 E Main St, Ste 536, Fort Wayne, IN 46802”), 3 (same), 7 (same), 9 (same)). Fort Wayne is in the Northern District of Indiana, and as such this Court cannot quash these subpoenas. Fed. R. Civ. P. 45(d)(3)(A) (“the court for the district where compliance is required” may quash a subpoena). (See also Dkt. 196 at 4 (Plaintiffs’ counsel affirming that he “agree[d] that the Court doesn't have any kind of jurisdiction over any objections ... [to a] deposition of Mr. Pappas”)).
C. Motions for Protective Order
Discovery is permitted into “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” considering the importance of the issues at stake, the importance of the discovery in resolving those issues, the amount in controversy, and the weighing of burdens and benefits. Fed. R. Civ. P. 26(b)(1). A protective order may issue for “good cause” to prevent unduly burdensome discovery. Fed. R. Civ. P. 26(c)(1). The moving party bears the burden of showing good cause. Sanyo Laser Prod. Inc. v. Arista Recs., Inc., 214 F.R.D. 496, 503 (S.D. Ind. 2003). Plaintiffs have not met their burden.
1. Depositions of Becky Burke, Vickie Musselman and Chuck Gabet
*2 Plaintiffs argue that the depositions of Annie Oakley officers and employees Becky Burke, Vickie Musselman, and Chuck Gabet should be stopped because “[t]hese persons do not have any information about this case or Annie Oakley that Renee Gabet does not have.” (Dkt. 225 at 3). Yet at her deposition, Ms. Gabet repeatedly stated Mr. Gabet[1] had superior knowledge of relevant financial statements. (Dkt. 227-2 at 22-32; see also Dkt. 34-6 at 1 (Chuck Gabet's declaration stating, “I understand that I will be a witness ... as I am personally aware of infringing products sold by Amazon”)). Furthermore, Plaintiffs’ discovery responses state they do not have information or documents related to sales volume, advertising expenses, costs or profits for their products or trademarks, (Dkt. 227-9 at 3; Dkt. 227-10 at 4). This information is highly relevant to damages, and if Plaintiffs cannot produce it in document form, Defendant is entitled to seek it via testimony from Plaintiffs’ sales and bookkeeping employees. (Dkt. 227-2 at 11-14 (identifying Ms. Musselman as a bookkeeper, and Ms. Burke as responsible for sales)).
Nor are Plaintiffs’ claims of burden convincing. Plaintiffs offered Ms. Burke and Ms. Musselman as witnesses before changing their mind. (Dkt. 225 at 3 n.1); see also Dkt. 34-3 (declaration of Becky Burke); Dkt. 34-6 (declaration of Chuck Gabet); Dkt. 74 at 2 (preliminary witness list identifying Burke and Musselman), 3 (incorporating all defense witnesses, which include Chuck Gabet (Dkt. 79 at 2)). This fact undercuts Plaintiffs’ argument that having these witnesses miss work to be deposed is an undue burden, which in any event is simply not the kind of burden which creates good cause for a protective order. Jakes v. Boudreau, No. 19-CV-02204, 2021 WL 7543868, at *2 (N.D. Ill. Dec. 2, 2021).
These witnesses have relevant non-duplicative information, and Plaintiffs have not met their burden of showing their depositions should be halted by court order.
2. Deposition of George Pappas
Plaintiffs argue a protective order should prevent the deposition of George Pappas because Defendant seeks privileged information, and because requests to depose a party's attorney create inherent good cause for a protective order. (Dkt. 225 at 7). Starting with the second argument, the presumption against deposing counsel applies to litigation, or trial, counsel, not any attorney ever retained by a party. See Axis Ins. Co. v. Am. Specialty Ins. & Risk Servs., Inc., No. 1:19-cv-00165-DRL-SLC, 2022 WL 21697161, at *9-10 (N.D. Ind. Apr. 28, 2022) (rule, to the extent it has been applied by various courts, is focused primarily on protecting trial counsel). Mr. Pappas is not counsel of record for this matter, so there is no inherent good cause to stop his deposition.
Plaintiffs’ second argument also fails. While some of what Defendant may ask of Mr. Pappas may be privileged, and while Defendant might wish to wait until the Court rules on a pending motion to compel which may clarify the scope of privileged material, (Dkt. 202), it is not required to do so. Mr. Pappas's declarations submitted to the patent office are clearly relevant to Defendant's counterclaims, and so far as this Court is aware, no privilege objection has been made regarding them. Plaintiff has not made a good cause showing sufficient to halt this deposition.
D. Scheduling
There is, admittedly, no good solution to scheduling these depositions. And Defendant has every right to be frustrated. From the briefing before the Court, it certainly appears Defendant has been acting in good faith to schedule these depositions for several months, only to be met with delay followed by the instant motion mere days before a scheduled medical unavailability by Plaintiffs’ solo counsel. (See Dkt. 227 at 17). However, the Court has no desire to punish Plaintiffs, or Plaintiffs’ attorney, for medical issues. Plaintiffs’ counsel returns to the office on February 22, 2024. (Dkt. 225 at 2). No later than March 1, 2024, the parties are ORDERED to meet and confer regarding dates for the depositions of Becky Burke, Vickie Musselman, Chuck Gabet, and George Pappas, and directed to find mutually agreeable dates for these depositions which may be held no later than March 29, 2024.
E. Fees
*3 Rule 37(a)(5) applies to the awarding of expenses in the aftermath of a motion for protective order. Fed. R. Civ. P. 26(c)(3). This rule mandates the Court award the prevailing party its fees and costs in opposing or seeking a protective order unless the losing side, after being given an opportunity to be heard, was substantially justified in taking its position. Fed. R. Civ. P. 37(a)(5). Plaintiffs did not obtain the protective order they were seeking, and their combined motion for a protective order and motion to quash was not substantially justified. The motion violated local rules, was filed in the wrong district (as to the motion to quash), and demonstrated a lack of transparency regarding the facts of the case and the relevant law. Supra Part II.A-C.
For these reasons, Defendant is ORDERED to submit a motion within fourteen (14) days of this order detailing its fees and costs incurred in opposing Docket 225. Taking into account Plaintiffs’ counsel's medical unavailability, Plaintiffs and Plaintiffs’ counsel shall have until on or before March 22, 2024, to show cause why Plaintiffs, Plaintiffs’ counsel, or both should not be required to pay the costs and fees incurred by Defendant in opposing this filing.
III. Conclusion
Plaintiffs’ motion at Dkt. [225] is DENIED. No later than March 1, 2024, the parties are ORDERED to meet and confer regarding dates for the depositions of Becky Burke, Vickie Musselman, Chuck Gabet, and George Pappas, and directed to find mutually agreeable dates for these depositions which may be held no later than March 29, 2024.
Defendant is ORDERED to submit a motion within fourteen (14) days of this Order detailing its fees and costs incurred in opposing Dkt. 225. Plaintiffs and Plaintiffs’ counsel shall have until on or before March 22, 2024, to show cause why Plaintiffs, Plaintiffs’ counsel, or both should not be required to pay the costs and fees incurred by Defendant in opposing this filing.
SO ORDERED.

Footnotes

Plaintiffs repeatedly identify Mr. Gabet as Ms. Gabet's husband. (Dkt. 225 at 1, 3). His role, as relevant here, is better understood as that of co-founder, Vice President, Treasurer, Secretary, and Board Member of Plaintiff Annie Oakley. (Dkt. 227 at 6-7; Dkt. 227-2 at 8-9). (When citing to Defendant's Response, (Dkt. 227), the Court will use the page numbers listed in the auto-generated caption at the top of the page.)