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In Re: Subpoena To Creeden & Associates

September 28, 2012

IN RE: SUBPOENA TO CREEDEN & ASSOCIATES, INC.


Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The motion to enforce the subpoena [1] is granted in part and denied in part as detailed below.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Before the Court is Movant Hy-Ko Products Company's ("Hy-Ko") motion to enforce its subpoena against third-party respondent Creeden & Associates, Inc. ("Creeden") in antitrust litigation in the Northern District of Ohio. 10-cv-992-DDD. For the following reasons, the motion is granted in part and denied in part.

I. BACKGROUND

Hy-Ko is a supplier of replacement key "blanks" (uncut keys) and automatic key duplication machines to retailers. It has sued its competitors Kaba Ilco ("Ilco") and the Hillman Group, Inc. ("Hillman") in the Northern District of Ohio, alleging antitrust violations. Specifically, it alleges Hillman and Ilco have agreed to divide the replacement key blanks market, with Hillman getting the big box market and Ilco taking the franchise and independent market.

Many Ace Hardware stores buy their blanks through a national Ace Hardware buying cooperative, which used to purchase its blanks from Ilco. In 2003, Hy-Ko won that contract away from Ilco. Ilco hired Creeden to sell its blanks to individual stores that were using Hy-Ko products. Hy-Ko has alleged in that litigation that Ilco engages in predatory pricing, exclusive dealing arrangements and misrepresentations about Hy-Ko's products. Hy-Ko seeks documents from Creeden that might prove these allegations, particularly any documents reflecting the agreed-upon market division between Ilco and Hillman. Hy-Ko seeks a number of documents from Creeden, which is not party to the Ohio litigation.

Hy-Ko brought this action to enforce the subpoena after Creeden, located in this district, refused to produce the documents requested, citing various objections.

II. LEGAL STANDARD

The burden of demonstrating an undue burden is borne by the movant. WM High Yield v. O'Hanlon, 460 F.Supp. 2d 891, 895 (S.D. Ind. 2006). The factors in considering an undue burden are: relevance, the need of the party for the documents, the breath of the documents, the time period covered, the particularity of the documents requested, the burden imposed and whether the party subpoenaed is a non-party. Id.

"Although discovery is by definition invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitle to special weight in evaluating the balance of competing needs." United States ex rel Tyson v. Amerigroup Ill., Inc., No. 02-C-6074, 2005 U.S. Dist LEXIS 24929, at *14 (N.D. Ill. Oct. 21, 2005) (emphasis added).

Where third-parties are the subject of discovery requests, the courts will sometimes shift or partially shift the costs of discovery. See Butler v. Rigsby, No. 96-2453 Section "R" (5), 1998 U.S. ...


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