The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is third party Robert Fallon, Jr.'s motion to
quash a subpoena for telephone records. For the reasons stated
below, the motion is denied.
This is a patent infringement action brought by Armament
Systems and Procedures, Inc. ("Armament"). Armament originally
brought this action against only one defendant, Shell Oil Company
("Shell"). On May 12, 2003, Armament filed a Second Amended Complaint adding Sun Coast Merchandise Corporation ("Sun Coast")
and Capital Cities Marketing, Inc. ("Capital Cities"). On October
30, 2003, we entered summary judgment in favor of Shell and
against Armament. Therefore, the remaining defendants are Sun
Coast and Capital Cities.
Armament manufactures and sells handheld miniature LED
flashlights and owns a "Miniature LED Flashlight" patent, U.S.
Patent No. 6,190,018. Armament alleges that Sun Coast and Capital
Cities are "manufacturing, importing, distributing, using,
selling, and/or offering to sell . . . miniature LED flashlights"
that infringe Armament's patent. (Second Amended Complaint, ¶¶
13, 17.) Armament's claim arises from a merchandise offer
included in an attachment to the envelope included with a Shell
credit card billing statement.
In addition, Sun Coast filed a declaratory judgment action
against Armament in the Central District of California. That
action was transferred to this court in September 2003. Sun Coast
has moved to dismiss or transfer the cases to California. The
parties are conducting discovery regarding this court's
jurisdiction over Sun Coast.
The instant motion arises in connection with that discovery.
Armament believes that Sun Coast has an agent, Robert Fallon,
Jr., doing business in this district. Armament served a subpoena
on Ameritech for "[a]ll records, including monthly Billing
Statements and details of calls made and received, from January 1, 2002 to
the present for the following telephone numbers 847.304.7874 and
847.304.4846." According to Mr. Fallon, these numbers are for,
respectively, his office telephone and his home telephone. Mr.
Fallon now moves to quash the subpoena on several grounds.
Mr. Fallon first objects to the subpoena on a variety of
procedural grounds, none of which persuade us that the subpoena
should be quashed. He also contends that the telephone records
are irrelevant to this action. We reject that argument as well.
Attached to Armament's response to the motion are copies of
business cards obtained by Armament. Each card identifies Sun
Coast Merchandise Corporation and either "Robert D. Fallon, Jr.,
Director, Sales & Marketing" or simply "Robert D. Fallon" at
20933 N. Laurel Dr., Barrington, Illinois. Both cards provide the
e-mail address of bfallon@suncoastmc. com. One card lists the
telephone number (847) 304-7874, for which records were
subpoenaed. That number is listed to "Sun Coast Marketing Inc.,
20933 Laurel Dr., Barrington, IL." The other telephone number for
which records were subpoenaed, (847) 304-4846, is listed to
"Robert D. Fallon" at the same address. Given these
circumstances, we believe that the telephone records could lead
to relevant evidence regarding jurisdiction in this district over
Mr. Fallon also argues that the subpoena violates his and
others' rights of privacy by seeking records of personal
telephone calls and confidential business contacts. He expresses concern
over Armament using this information for "meddlesome purposes."
At the status hearing held in this case today, counsel for the
parties agreed to work together to avoid privacy issues.
For the foregoing reasons, third party Robert Fallon, Jr.'s
motion to quash the subpoena for telephone records is denied. A
status hearing is set for July 21, 2004, for a report on the
information obtained in discovery, including the deposition of
Robert Fallon, Jr., concerning the question of personal
jurisdiction. The briefing schedule previously set on Sun Coast's
motion to dismiss or transfer is vacated, and briefing on that
motion is suspended.
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