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Covad Communications Co. v. Revonet

November 4, 2009

COVAD COMMUNICATIONS COMPANY, PLAINTIFF,
v.
REVONET, INC., DEFENDANT.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

OPINION AND ORDER ON MOTIONS

Pending are Covad Communications Company's (Covad) motion to compel (Doc. 3) and Revonet's motion to quash (Doc. 8).

BACKGROUND

The underlying lawsuit is pending in United States District Court for the District of Columbia. See Covad Communications Company v. Revonet, Inc., Civil Action No. 06-1892 filed in the District of Columbia.

On August 10, 2009, in connection with that lawsuit, Covad served a subpoena on SDN Communications (SDN) in South Dakota. The subpoena directed SDN to produce information connected with certain telephone numbers. Production was to occur on August 24, 2009, at the office of South Dakota counsel for Covad. Revonet, however, notified SDN not to produce the information. SDN did not produce the information requested by the subpoena nor did SDN file objections to the subpoena.

A. District of Columbia

On August 21, 2009, Revonet filed a motion to quash the subpoena. See CIV. 06-1892, Doc. 118 (D.D.C.). On August 29, 2009, Covad filed a motion to strike Revonet's motion to quash. Id. at Doc. 127. The District of Columbia Scheduling Order provided a discovery deadline which expired months before the subpoena was served. On September 29, 2009, Judge Facciola filed a "Minute Order finding as moot 54 Motion for Extension of Time to Complete Discovery." Further, on October 13, 2009, the presiding judge, Judge Kollar-Kotelly, filed a Minute Order stating: "based on the existence of outstanding discovery-related issues that are currently being considered and resolved before Magistrate Judge Facciola and to provide the parties additional time to resolve all such pending discovery matters, the Court hereby VACATES the status hearing currently set for October 14, 2009, and RESCHEDULES the status hearing to December 15, 2009 at 4:30 P.M. . . ."

As of November 4, 2009, both the motion to quash and motion to strike remain pending in the District of Columbia. A motion hearing is scheduled before Judge Facciola on November 16, 2009.

B. South Dakota

On September 4, 2009, Covad filed its motion to compel SDN to comply with the subpoena. Doc. 3. On September 23, 2009, Revonet filed its motion to quash the subpoena. Doc. 8. Both motions are fully briefed and ready for ruling by this court.

DISCUSSION

A. Covad's Position

Covad urges the text of Federal Rule of Civil Procedure 45(c)(3)(A) and (B) specifically provides that the power to quash a subpoena belongs to the issuing court. Covad cites In Re. Sealed Case, 141 F.3d 337, 378 (D.C. Cir. 1998)(only the issuing court has the power to act on its subpoenas; nothing in the Rules even hints any other court may be given the power to quash or enforce them.) Covad argues the reference to "timely motion" in Rule 45 means the motion to quash should be filed before the time specified in the subpoena for complying with the subpoena. Covad urges the Revonet motion is not timely because it was filed in South Dakota about one month after the date for compliance with the subpoena. Covad argues Revonet does not have standing to challenge the subpoena because it has not demonstrated that it has a claim of privilege, proprietary interest, or personal interest in the matter. Covad asserts Revonet's South Dakota Motion to Quash makes no showing of extraordinary circumstances based on the facts to justify a basis to request relief and that Revonet makes no showing as to what it seeks to protect from disclosure, nor what ...


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