*1 THIS CAUSE is before the Court upon Petitioners Exocel Bio, Inc. (“Exocel”), Raj Jayashankar, Deb Hubers, and Alejandro Contreras’ Motion to Enforce Subpoena Against EOC Analytics, LLC. (ECF No. 1).[1] Respondent EOC Analytics, LLC (“EOC Analytics”) and Kimera Labs, Inc. (“Kimera”) filed Responses, (ECF Nos. 9, 10), to which Petitioners filed a Reply (ECF No. 11). A hearing was held on the Motion on July 19, 2024. Upon consideration of the Motion, Responses, Reply, the arguments advanced at the hearing, and being otherwise fully advised in the premises, the Motion is GRANTED, in part, and DENIED, in part.

I. BACKGROUND

Kimera initiated a lawsuit in the United States District Court for the Southern District of California against Petitioners Exocel, Raj Jayashankar, Deb Hubers, and Alejandro Contreras (the “underlying litigation”). See Kimera Labs, Inc. v. Jayashankar, et al., Case No. 3:21-cv-02137-MMA-DDL (S.D. Cal.). In that action, the plaintiff Kimera alleges that Petitioners misappropriated its trade secrets. Kimera is an FDA-registered tissue processing laboratory that specializes in scientific research focusing on exosome characterization and placental mesenchymal stem cell exosome production and optimization. (ECF No. 1-1 at 3). Kimera alleges that it developed a process of producing industrial scale, clinically therapeutic exosome products for humans in a clinical setting (“Kimera's Process”). (Id.). “Exosomes have broad application in the medical field, and can, among other things, be used to help burn victims heal by regenerating skin.” See Kimera Labs, Inc. v. Jayashankar, No. 3:21-cv-02137, ECF No. 104 at 2 (S.D. Cal. Apr. 19, 2023) (order granting in part and denying in part defendants’ motion to dismiss) (internal quotations omitted). Kimera asserts that its Process is a trade secret consisting of a proprietary method of growing, harvesting, and isolating exosomes derived from placental mesenchymal stem cells for use in human therapeutic products. (ECF No. 1-1 at 6). Kimera alleges it invested heavily in developing a proprietary method of exosome isolation in order to produce XoGlo, “the first clinically available exosome product in the world.” (Id. at 3, 16). Kimera asserts it also spent a substantial amount of time, expense, and effort creating its customer list. (Id. at 18).

Kimera alleges that Dr. Melissa Selinger (“Dr. Selinger”), its employee from March 2018 to October 2019, and Petitioners engaged in “corporate espionage” in order to establish Exocel, a business that directly competes against Kimera in the exosome isolation industry using its trade secrets and other confidential information to manufacture and sell Exovex, a competing extracellular vesicle/exosome product. (Id. at 3, 8, 15–16). Kimera asserts claims of misappropriation of its trade secrets—the Kimera Process and its customer list—in violation of the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836 et. seq., against Petitioners.

*2 Relevant to the instant action, on February 14, 2024, Petitioners issued a subpoena duces tecum to Respondent EOC Analytics requesting document production and a deposition of a corporate representative in connection with the underlying litigation. (ECF No. 1-2). EOC Analytics assists Kimera in the development of standard operating procedures for its trade secreted processes and procedures. (ECF No. 9 at 2 n. 2); (ECF No. 1-1 at 32). Petitioners assert that EOC Analytics possesses relevant information regarding the Kimera Process, before and after Dr. Selinger was an employee at Kimera, relevant to their defenses in the underlying litigation. Petitioner represents that a deposition has yet to be conducted of EOC Analytics’ corporate representative and has yet to receive document production in response. As a result, Petitioner initiated the instant action to enforce the subpoena. Both EOC Analytics and Kimera oppose the Motion.

II. DISCUSSION

A. The Validity of the Subpoena

Respondent asserts that the subject subpoena is invalid because it was not accompanied with a witness fee as required by Federal Rule of Civil Procedure 45(b)(1). Respondent contends that Petitioner's payment of this witness fee later in time does not absolve this fatal procedural error.

Petitioner responds that Respondent received and has cashed the witness fee provided for the instant subpoena. Petitioner asserts that the failure to simultaneously provide the witness fee does not invalidate the subpoena. Further, Plaintiff contends that, because Respondent has since received a witness fee, there is no conceivable prejudice to the enforcement of the subpoena.

If a private party seeks to compel a person's attendance through a subpoena, then that party must tender a fee for the person's time and travel. Fed. R. Civ. P. 45(b)(1); see, e.g., Shiman v. Nissan Motor Co., Ltd., No. 08-60052-CIV, 2009 WL 10699121, at *4 (S.D. Fla. Jan. 8, 2009) (“As numerous courts have held, for service of a deposition subpoena to be proper, the server must simultaneously serve the subpoena and tender the witness fee and reasonably estimated mileage.”).

The Parties do not dispute that, after the service of the subpoena, Respondent has received and cashed the witness fee. Respondent has failed to show how Petitioner's delay in providing the witness fee invalidates the subpoena when the fee was provided before any appearance was or has been compelled. See Rainey v. Taylor, No. 18-24802-MC, 2019 WL 1922000, at *3 (S.D. Fla. Apr. 30, 2019) (providing the plaintiff the opportunity to timely cure her failure to tender the witness fee so as to enforce the existing subpoena). “The rule is clear that a witness is entitled to the fees before appearance is compelled,” but Respondent here has yet to be compelled as the deposition has not yet been set. See Klockner Namasco Holdings Corp. v. Daily Access.Com, Inc., 211 F.R.D. 685, 687 (N.D. Ga. 2002). Notwithstanding, and as Petitioners note, Respondent has not suffered any prejudice as a result of the late tender of the payment due to the fact that the deposition has yet to occur. Thus, Respondent's objection to the subpoena as to its invalidity due to late payment of the witness fee is OVERRULED.

B. The Timeliness of Respondent's Objections

Petitioners assert that Respondent's objection to the instant subpoena should be deemed waived because Respondent failed to timely tender its objections. Petitioners assert that, though the Parties agreed to an extension to respond to the subpoena, this agreed upon extension only pertained to Respondent's document production, not its service of its objections.

Respondent asserts that, when the Parties discussed an extension to respond, there was no distinction made between when its production was to be due versus when its objections were. Respondent contends that, even if it did provide its objections out of time, the objections should still be considered because Respondent acted in good faith.

*3 Under the Local Rules of the Southern District of Florida, Parties are free to stipulate to enlarge any practice or procedure governing discovery without need for Court approval so long as the enlargement does not violate a Court-ordered deadline, obligation, or restriction. See S.D. Fla. L.R. 26.1(a). Though Petitioners assert that they agreed to extend the deadline of production and not for objections, review of the correspondence between the parties does not support the distinction urged. Moreover, when an act may or must be done within a specified time, the court may, for good cause, extend the time on motion made after the time has expired if the party failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Because of the misunderstanding regarding the deadline for objections between counsel, the undersigned finds that Respondent has demonstrated excusable neglect in failing to provide its objections by the original deadline and finds that the time to do so should be extended to March 21, 2024, when Respondent ultimately served its objections to Petitioner. As a result, Respondent's objections are considered timely and thus not waived at this posture.

C. The Requested Discovery

In response to the instant Motion, both Kimera and Respondent assert that the requested discovery is not relevant to the underlying litigation, and the subpoena is overbroad. Kimera asserts that the underlying litigation pertains to the trade secrets that Petitioners misappropriated prior to October 2019, and that Petitioner's requests implicate Kimera's other trade secreted information not at issue in the case. Kimera represents that Kimera's Process has changed since Petitioners’ alleged misappropriation occurred and that discovery into its Process now puts it at risk for further misuse of its trade secreted information. Respondent also asserts that Petitioners’ discovery requests implicate its own trade secret and proprietary information.

Petitioners asserts that discovery after October 2019 is relevant to the underlying litigation because they plan to establish that Kimera's Process is not trade secreted information and is what everyone in the industry already does when manufacturing exosomes or any cellular process. Petitioners assert that the requested discovery regarding the changes to the XoGlo product and Kimera's processes after 2019 is further relevant to challenge that Kimera's Process had value before said changes. Petitioners contend that any trade secret information produced from either Respondent or Kimera would be protected from disclosure by the protective order in the underlying litigation.

Federal Rule of Civil Procedure 45 addresses the issuance and enforcement of subpoenas. A subpoena under Rule 45 is a discovery vehicle to be used against non-parties to, among other things, obtain documents relevant to a pending lawsuit. Sakhil Ctr. at Doral Condo. Ass'n, Inc. v. Hanover Ins. Co., No. 18-21659-CIV, 2019 WL 7881626, at *1 (S.D. Fla. Mar. 21, 2019). A party to a federal lawsuit may issue, for example, a subpoena to a nonparty, compelling the production of documents relevant to any of the parties’ claims or defenses. Id.; compare Fed. R. Civ. P. 45, with Fed. R. Civ. P. 26(b)(1). In other words, a party may use a Rule 45 subpoena to obtain “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). Courts treat the scope of discovery under a subpoena the same as the scope of discovery under Rule 26. Am. Fed'n of State, Cnty. & Mun. Emps. (AFSCME) Council 79 v. Scott, 277 F.R.D. 474, 476 (S.D. Fla. 2011) (collecting cases).

Federal Rule of Civil Procedure 26(b)(1) reads in pertinent part: