# Hightower v. Celestron Acquisition, LLC > District Court, N.D. California · March 7, 2023 URL: https://www.frixlaw.com/law-library/cases/10074554 ## Case - **Court:** District Court, N.D. California - **Decided:** March 7, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10074554 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 IN RE TELESCOPES ANTITRUST Case No. 20-cv-03639-EJD (VKD) LITIGATION 9 ORDER RE MARCH 1, 2023 10 DISCOVERY DISPUTE RE LEVENHUK SUBPOENA 11 Re: Dkt. No. 307 12 13 14 Indirect Purchaser Plaintiffs (“IPPs”) and Defendants ask the Court to resolve their dispute 15 concerning IPPs’ document subpoena to non-party Levenhuk Inc. (“Levenhuk”). Dkt. No. 307. 16 Defendants ask the Court to issue a protective order barring IPPs from obtaining documents 17 concerning non-U.S. sales of telescopes and telescope-related accessories. Id. at 1. The Court 18 finds this dispute suitable for resolution without oral argument. Civil. L.R. 7-1(b). 19 For the reasons explained below, the Court denies Defendants’ request for a protective 20 order. 21 I. BACKGROUND 22 In early February 2023, IPPs served a subpoena on non-party Levenhuk asking for 23 documents regarding Levenhuk purchases and sales of telescopes and telescope-related 24 accessories, as well as contact information for potential class members. See Dkt. No. 307-1. 25 According to IPPs, Levenhuk is headquartered in Tampa, Florida, and the subpoena specifies a 26 location in Tampa for the production of documents. Id. According to Defendants, Levenhuk is 27 based in Russia. Id. at 2, 3. 1 Schmidt, labeled them as its own, and resold them under its own label to IPPs. Id. at 2, 6. They 2 argue that the subpoena seeks information relevant to IPPs’ analysis of “overcharge pass-through” 3 from Defendants to consumers. Id. at 2. Defendants respond that virtually all of defendant 4 Nantong Schmidt’s telescope sales to Levenhuk were shipped to a Levenhuk entity in Russia, and 5 therefore represent foreign sales that are not relevant to the allegations in the operative complaint, 6 which are limited to domestic activity. Id. at 2. 7 II. LEGAL STANDARD 8 Rule 45 of the Federal Rules of Civil Procedure permits a party to obtain documents from 9 a non-party by serving a subpoena on the non-party, with prior notice to all other parties. Fed. R. 10 Civ. P. 45(a)(3), (a)(4). The scope of permissible discovery of non-parties under Rule 45 is 11 generally commensurate with the scope of discovery set forth in Rule 26(b)(1) of the Federal 12 Rules of Civil Procedure. See Fed. R. Civ. P. 45 Advisory Comm. Note (1970) (“[T]he scope of 13 discovery through a subpoena is the same as that applicable to Rule 34 and other discovery 14 rules.”); Fed. R. Civ. P. 34(a) (“A party may serve on any other party a request within the scope of 15 Rule 26(b).”). Rule 26(b) permits discovery “regarding any non-privileged matter that is relevant 16 to any party’s claim or defense and proportional to the needs of the case, considering the 17 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 18 access to relevant information, the parties’ resources, the importance of the discovery in resolving 19 the issues, and whether the burden or expense of the proposed discovery outweighs its likely 20 benefit.” Fed. R. Civ. P. 26(b)(1). 21 A party whose interests are affected by a non-party subpoena must move to quash or 22 modify the subpoena in the district where compliance is required in order to protect those interests, 23 or the affected party may move for a protective order in the district court where the action is 24 pending. See Fed. R. Civ. P. 45(d)(3); Fed. R. Civ. P. 26(c). However, as a general matter, a 25 party has no standing to move to quash or for a protective order on the grounds that a subpoena 26 seeks irrelevant information or would impose an undue burden on the non-party. United States ex 27 rel. Ortiz v. Mount Sinai Hospital, 169 F. Supp. 3d 538, 545 (S.D.N.Y. 2016) (party may only 1 Fargo and Co. v. ABD Ins., No. C 12-03856 PJH (DMR), 2012 WL 6115612 at *2 (N.D. Cal. 2 Dec. 10, 2012) (party may seek a protective order regarding subpoena if it believes its own interest 3 is jeopardized); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and 4 Procedure § 2459 (3d ed. Apr. 2022 update) (“Ordinarily a party has no standing to seek to quash 5 a subpoena issued to someone who is not a party to the action, unless the objecting party claims 6 some personal right or privilege with regard to the documents sought.”). 7 III. DISCUSSION 8 Defendants ask for a protective order barring IPPs’ discovery from Levenhuk on the 9 ground that the subpoena seeks discovery that is irrelevant, overbroad, and disproportionate to the 10 needs of the case. See Dkt. No. 307 at 2-4. However, Defendants have not identified any personal 11 right or privilege that is implicated by IPPs’ document subpoena, which principally seeks 12 transactional information relating to Levenhuk’s purchase and sale of telescopes and telescope- 13 related accessories. Defendants do not contend that the subpoena calls for Levenhuk to produce 14 information that is Defendants’ privileged or private information. 15 The cases on which Defendants rely are inapposite, as they all involve a party’s challenge 16 to a non-party subpoena where the party’s own personal rights or interests were at stake. See, e.g., 17 Singletary v. Sterling Transport Co., Inc., 289 F.R.D. 237 (E.D. Va. 2012) (party possessed a 18 personal right in private information contained in his employment records held by former 19 employers); Springbook Lenders v. Northwestern Nat’l Ins. Co., 121 F.R.D. 679 (N.D. Cal. 1988) 20 (party had an interest in objecting to adverse party’s use of non-party subpoena to exceed the 21 scope of discovery permitted by a court order extending discovery); Loop AI Labs Inc. v. Gatti, 22 No. 15-cv-00798-HSG(DMR), 2016 WL 787924 (N.D. Cal. Feb. 29, 2016) (defendants had 23 personal interest in attorney-client privileged and private information subpoenaed from their 24 communication service provider, ISP, law firm, and bank). Conversely, Defendants have not 25 shown they have standing to object to IPPs’ subpoena to Levenhuk on any ground.1 26 To the extent Defendants suggest that IPPs seek discovery in violation of a prior Court 27 1 order limiting discovery of international customers, see Dkt. No. 307 at 3, the Court finds no such 2 || violation. The Court’s prior discovery order was directed to Plaintiffs’ discovery of Defendants’ 3 |} own non-U.S. customers. See No. 20-3642, Dkt. No. 84 at 5-6. In resolving that dispute, the 4 Court stated: “The Court does not believe it has an adequate legal and factual record to resolve the 5 parties’ dispute concerning RFP No. 92 [requesting disclosure of all Celestron customers outside the 6 || U.S. since 2005], and denies plaintiffs’ request for relief without prejudice on that basis.” Jd. at 6. If, 7 as Defendants contend, the evidence IPPs obtain from Levenhuk is not relevant because it 8 concerns exclusively international transactions, Defendants will have an opportunity to object to 9 the use or admissibility of such evidence on the merits. 10 || IV. CONCLUSION 11 Defendants’ request for a protective order is denied. 12 IT IS SO ORDERED. 5 13 Dated: March 7, 2023 14 ae 15 Unga □□ Maree VIRGINIA K. DEMARCHI = 16 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10074554. Public record. Not legal advice.