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In re Subpoena to Huawei Technologies Co.

June 2, 2010

IN RE: SUBPOENA TO HUAWEI TECHNOLOGIES CO., LTD.


The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

This case arises from SynQor, Inc.'s ("SynQor") non-party subpoena to Huawei Technologies, Co., Ltd. ("Huawei"), a Chinese corporation. The subpoena was served on an employee of Futurewei Technologies, Inc. ("Futurewei"), Huawei's United States-based subsidiary, at Futurewei's Rolling Meadows, Illinois office on June 4, 2009. In the subpoena, SynQor sought discovery related to a patent-infringement suit, entitled SynQor, Inc. v. Artesyn Techs., Inc., et al., No. 07 C 497 (E.D. Tex.) (the "Texas action"), that is pending in the United States District Court for the Eastern District of Texas. While neither Huawei nor Futurewei is a party to the Texas action, SynQor believes that Huawei purchased certain patent-infringing bus converters and point-of-load converters from Artesyn Technologies, Inc., the defendant to the Texas action.

Futurewei, through counsel, refused to produce the requested discovery, contending that the subpoena was not properly served on Huawei, the parent corporation to which the subpoena was directed. On March 30, 2010, SynQor filed the instant case as a motion to compel a response to the subpoena.

I. ANALYSIS

In its motion, SynQor contends: (1) that it properly served Huawei with the subpoena, either by serving Huawei directly or by serving Futurewei as agent for Huawei; or, alternatively, (2) that it properly served Futurewei and that Futurewei has sufficient control over the requested documents to produce them,*fn1 and (3) that regardless of which entity was properly served, that entity should be compelled to produce a witness pursuant to Federal Rule of Civil Procedure 30(b)(6). Futurewei has appeared in response to the motion to compel,*fn2 and responds that it: (1) is not Huawei's agent for service of process (and that, as a consequence, Huawei has not been properly served); (2) was not properly served in its own capacity; (3) does not have control of the requested documents; and (4) cannot produce a witness as demanded by the subpoena. The court addresses each of the parties' arguments in turn.*fn3

A. Service

Federal Rule of Civil Procedure 45, which governs subpoenas, "requires delivering a copy to the named person...." Fed. R. Civ. P 45(b)(1). The rule does not define "person," and specifically does not describe how to serve a corporate "person" with a subpoena. To resolve this problem, the parties have applied Federal Rule of Civil Procedure 4, which pertains to the service of a summons and contains a specific provision regarding service upon corporations. See id. 4(h)(1). While the Seventh Circuit has not ruled on the issue, district courts in other circuits, like the parties in this case, have "fill[ed] th[e] gap" in Rule 45 by reference to Rule 4. See, e.g., Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Ams., 262 F.R.D. 293, 305-06 (S.D.N.Y. 2009) (collecting cases). The court follows these district courts in adopting this approach, which appears to be a reasonable fix to the gap left in Rule 45.

Federal Rule of Civil Procedure 4(h) requires that service on a corporation be accomplished:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant....

Fed. R. Civ. P. 4(h)(1). Rule 4(e)(1), referenced in Rule 4(h), allows service on an individual by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made....

Id. 4(e). This court is located, and service in this case was made, in Illinois, which allows service on a corporation by, inter alia, "leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State." 735 Ill. Comp. Stat. 5/2-204.

1. Service Directly on Huawei

SynQor first asserts that Huawei was directly served with the subpoena. SynQor points to Huawei's website, in which Huawei represented that it has established branch offices in the United States, including its Rolling Meadows office. Futurewei responds that it owned the office in question, such that service on an employee at that office would be service on Futurewei, not Huawei. SynQor argues in reply that Huawei's representation on its website gave Futurewei apparent authority to accept service on Huawei's behalf. As the cases SynQor cites make clear, apparent authority is an agency principle. See Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d788, 795 (Ill. 1993). Consequently, Huawei's online representation that it had an office in Rolling Meadows, at most, is relevant to the question of whether SynQor properly served Huawei's agent at that office. Accordingly, SynQor's initial argument that Huawei was directly served is meritless.

2. Service on Futurewei as Agent for Huawei

SynQor next argues that even if the subpoena was served on Futurewei, and not on Huawei, Futurewei was Huawei's agent for service of process. If Futurewei was Huawei's agent for service of process, Illinois law would allow service upon it. See 735 Ill. Comp. Stat. 5/2-204; see also Fed. R. Civ. P. 4(e)(1) (allowing service in any manner permitted under state law). The party seeking to effectuate service bears the burden of establishing the agency relationship. Chung v. Tarom, S.A., 990 F. Supp. 581, 583-84 (N.D. Ill. 1998) (Gettleman, J.) (citing Akari Imeji Co. v. Qume Corp., 748 F. Supp. 588, 591 (N.D. Ill. 1990) (Norgle, J.) (citing Illinois law)).

According to an Illinois appellate court:

It is clear under Illinois law that "[w]here the facts indicate that one corporation so controls the affairs of another corporation that the two entities are essentially one, the court will disregard the corporate entities and hold service of process on one corporation effective as to the others." Schlunk v. Volkswagenwerk Aktiengesellschaft, 503 N.E.2d 1045, 1054 (Ill. App. Ct. 1986) (quoting Rymal v. Ulbeco, Inc., 338 N.E.2d 209, 213 (Ill. App. Ct. 1975)). Illinois courts have considered a number of factors in determining whether a parent "so controls" its subsidiary that two entities become one for purposes of service of process. See Chung, 990 F. Supp. at 583-84 (summarizing factors considered by Illinois courts). While "there is no bright-line test for determining how much control a foreign parent corporation must have over its domestic subsidiary before the subsidiary will be deemed its agent for purposes of service of process under Illinois law," the subsidiary-parent relationship is insufficient, standing alone, to create the requisite ...


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