United States District Court, D. New Mexico
ORDER ON DISCOVERY MOTIONS REGARDING
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on the following motions: (1)
Plaintiffs' Notice of Motion to Compel Compliance with
Subpoenas or, in the Alternative, to Transfer (Misc. Civ. No.
16-45 WJ, Doc. 1) (“Motion to Compel
Compliance”), filed November 18, 2016; (2)
Plaintiffs' Emergency Motion to Enforce Subpoenas against
Non-Party Sorensen (Doc. 63) (“Motion to Enforce
Subpoenas”), filed December 8, 2016; and, (3) the
parties' Joint Motion for Hearing (Doc. 80), filed
January 12, 2017. The Court, having reviewed the parties'
and Mr. Sorensen's submissions and the relevant law, and
being otherwise fully advised, FINDS that Plaintiffs'
Motion to Compel Compliance and Motion to Enforce Subpoenas
are well-taken in part and should be GRANTED IN PART and
DENIED IN PART. The Court further finds that the parties'
Joint Motion for Hearing is not well taken and should be
Factual Background and Procedural History
their Amended Complaint for Damages and Injunctive Relief,
Plaintiffs EmployBridge, LLC and Employment Solutions
Management, Inc. assert claims against Defendant Riven Rock
Staffing, LLC (“Riven Rock”), and individual
Defendants L. Shaun Shepherd, Catherine Olinger, Terry
Miller, and Timothy Jacquez, under the Defend Trade Secrets
Act, the New Mexico Uniform Trade Secrets Act, and state
contract and tort law. (See generally Doc. 23.)
Plaintiffs contend that Defendants have misappropriated
Plaintiffs' trade secrets and confidential information,
breached non-competition, non-solicitation, and/or
nondisclosure agreements in the individual Defendants'
employment contracts, and tortiously interfered with
Plaintiffs' contractual and business relations and
prospective economic advantage. (Id. at 22-38.)
Plaintiffs and Defendant Riven Rock both operate specialty
staffing businesses in Albuquerque, New Mexico; the
individual Defendants left Plaintiffs' employment and
went to work for Defendant Riven Rock shortly after the
latter company was formed. (Id. at 3-4, 15-17; Doc.
64-1 at 24-26.)
their Motion to Compel Compliance and Motion to Enforce
Subpoenas, Plaintiffs initially sought to enforce two
subpoenas-a document subpoena and a deposition subpoena- that
their counsel issued to non-party D. Stephen
Sorensen. (Doc. 63 at 2; Misc. Civ. No. 16-45 WJ,
Doc. 1-1 at 4-5.) Both Defendant Riven Rock and Mr. Sorensen
filed pleadings in opposition to Plaintiffs' motions,
Defendant Riven Rock on December 22, 2016, and Mr. Sorensen
on January 3, 2017. (Doc. 71; Misc. Civ. No. 16-45 WJ, Docs.
14-16.) On January 5, 2017, Plaintiffs filed a reply in
support of the motions, in which they stated that they have
“withdrawn the document subpoena previously served on
[Mr.] Sorensen, ” and now seek only to depose Mr.
Sorensen for no more than three (3) hours at a mutually
convenient time, date, and location. (Doc. 75 at 3-4, 7.)
attached new evidence to their reply, i.e., the
Declaration of David Bell, a managerial employee of Plaintiff
EmployBridge, LLC. (Doc. 75 at 29-30.) With the Court's
leave, Defendant Riven Rock filed a surreply to address this
new evidence on January 12, 2017. (Docs. 79, 82.) On the same
date, the parties jointly filed a motion for a hearing on the
Motion to Compel Compliance and Motion to Enforce Subpoenas.
(Doc. 80.) Finally, and again with the Court's leave,
Plaintiffs filed a surresponse on January 18, 2017. (Docs.
Plaintiffs' Motion to Compel Compliance and Motion to
initial matter, insofar as Plaintiffs' Motion to Compel
Compliance and Motion to Enforce Subpoenas sought to enforce
the document subpoena Plaintiffs' counsel issued to Mr.
Sorensen on October 29, 2016, the motions are moot, because
Plaintiffs have withdrawn this subpoena and no longer seek to
enforce it. (Doc. 75 at 3, 7.) The Court will therefore deny
that portion of Plaintiffs' motions. However, for the
reasons set forth below, the Court will grant Plaintiffs'
motions insofar as they seek to compel Mr. Sorensen to appear
to be deposed for no more than three (3) hours at a mutually
convenient time, date, and location. (Id. at 4, 7.)
to Federal Rule of Civil Procedure 26, parties in a federal
civil action “may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). Factors the Court is to
consider in determining whether discovery is
“proportional to the needs of the case” are:
the importance of the issues at stake in the action, the
amount in controversy, the parties' relative access to
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. “The court's responsibility, using all
the information provided by the parties, is to consider these
. . . factors in reaching a case-specific determination of
the appropriate scope of discovery.” Fed.R.Civ.P.
26(b)(1), 2015 Amendment, Advisory Committee Notes.
“Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
Fed.R.Civ.P. 26(b)(1). However, the “legal tenet that
relevancy in the discovery context is broader than in the
context of admissibility should not be misapplied so as to
allow fishing expeditions in discovery.” Martinez
v. Cornell Corr. of Tex., 229 F.R.D. 215, 218 (D.N.M.
2005) (citation omitted). Rather, discovery “is meant
to allow the parties to flesh out allegations for which they
initially have at least a modicum of objective
support.” Id. (citation omitted).
December 16, 2016 Order Denying Motion to Compel in this
matter, the Court observed that Plaintiffs had failed to
produce even a modicum of objective support for their theory
that Mr. Sorensen conspired with Defendants to engage in the
conduct alleged in Plaintiffs' Amended Complaint, or has
otherwise been involved in Defendant Riven Rock's
formation, funding, and/or operation. (Doc. 69 at 7-10.) Mr.
Bell's declaration, however, provides the missing modicum
of objective support. (Doc. 75 at 29-30.) And, if
Plaintiffs' theory is correct in whole or in part, then
Mr. Sorensen will indeed have at least some information that
is relevant to the parties' claims and defenses.
Fed.R.Civ.P. 26(b)(1). Moreover, even if their theory is
wholly mistaken, Mr. Sorensen appears to have an ongoing
professional relationship with Ashkan Abtahi, one of
Defendant Riven Rock's principals, and may have learned
from him discoverable information about the formation,
funding, and/or operation of the enterprise. (Doc. 49 at 6,
8-9; Doc. 66 at 3.)
Riven Rock disputes the accuracy of Mr. Bell's
declaration, which it is certainly entitled to do, and argues
that the declaration is largely based on hearsay. (Doc. 82 at
2-3, 7.) However, as Plaintiffs correctly observe, they have
not offered the declaration for its truth at an evidentiary
hearing to which the Federal Rules of Evidence apply, nor is
the Court considering it for that purpose. (Doc. 85 at 3-5.)
Thus, it is not hearsay, and the Court may properly consider
it in determining whether Plaintiffs seek to depose Mr.
Sorensen to obtain information that is relevant to the
parties' claims and defenses and proportional to the
needs of the case. Fed.R.Evid. 801(c) (hearsay is
out-of-court statement offered in evidence “to prove
the truth of the matter asserted”); Fleming v.
Parnell, 2014 WL 25621, at *2 (W.D. Wash. Jan. 2, 2014)
(statements in declaration submitted to support motion to
compel were not hearsay); Arista Records, LLC ...