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Orthofix, Inc. v. Gordon

United States District Court, C.D. Illinois, Peoria Division

June 8, 2015

ORTHOFIX, INC., Plaintiff,
v.
MELISSA GORDON, Defendant.

ORDER AND OPINION

TOM SCHANZLE-HASKINS, Magistrate Judge.

Before the Court is a Motion to Quash (d/e 69) filed by non-party DJO LLC (Motion 69). The Motion is granted in part and denied in part as set forth below:

Background

Plaintiff Orthofix, Inc. (Orthofix) and Defendant Melissa Gordon (Gordon), on September 1, 2007, entered into a Sales Agreement under which Gordon was to sell Orthofix products to physicians and other customers. Gordon marketed and sold a variety of products during her time with Orthofix, including, but not limited to, bone growth stimulators. Gordon was employed by Orthofix from September 1, 2007 to March 8, 2013 (Orthofix First Amended Complaint, paragraphs 35-36).

Orthofix' First Amended Complaint asserts claims against Gordon for breach of the employment contract between Orthofix and Gordon by breaching the customer non-solicitation provisions of the contract (Count I), breaching the unfair competition provisions of the contract (Count II), breaching the provisions of the contract promising not to disclose confidential information (Count III), misappropriating Orthofix' trade secrets (Count IV), and tortiously interfering with actual and prospective business relations (Count V). Orthofix has filed similar litigation against two other former sales people, Orthofix Inc. v. Hunter, No. 3:13-cv-00828, (N.D. Ohio) (Hunter), and Orthofix Inc. v. Lemanski, No. 2:13-cv-11421 (E.D. Mich.) (Lemanski).[1] The Motion to Quash indicates that Orthofix also has pending litigation with Nancy Barnes and David Wagenseller. Hunter, Lemanski, and Barnes are current or former DJO employees. Wagenseller is not, and never has been, a DJO employee. (Motion 69, pages 3-4).

Orthofix served a subpoena on non-party DJO requesting DJO, Gordon's present employer, produce all communications between Gordon and Eric Hunter, Bob Lemanski, Nancy Barnes, or David Wagenseller which relate to: 1) any confidentiality or non-competition agreement with Orthofix and the effect of it on their duties at DJO; 2) information concerning protection of trade secrets; and 3) other information concerning customers and any communication regarding this lawsuit or any other lawsuit brought by Orthofix against any of these parties, with the exception of documents subject to attorney-client privilege. The subpoena also seeks additional information regarding sales of bone growth stimulators to 54 physicians. The documents subpoenaed were to have been produced on April 17, 2015, which coincides with the fact discovery deadline in the existing scheduling order.

Analysis

Under Fed.R.Civ.P. 45(c)(3)(A)(1) (IV), the Court must quash or modify a subpoena that "subjects a person to an undue burden". The Court has broad discretion when reviewing discovery disputes and "should independently determine the proper course of discovery based upon the arguments of the parties". Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996)

This Court has noted, when evaluating whether a subpoena issued under Rule 45 is unduly burdensome, that the Court may consider a number of factors including "relevance, the need of the party for the documents, the breadth of the document request, the period covered by it, the particularity with which the documents are requested and the burden imposed". Whitlow v. Martin, 263 F.R.D. 507, 512 (C.D. Ill. 2009)

A. Orthofix' Request for Communications between Gordon and Eric Hunter, Bob Lemanski, Nancy Barnes, or David Wagenseller

The specific request made by the subpoena at issue for the communications between Gordon and the individuals listed above is as follows:

All communications between Melissa Gordon on the one hand and Eric Hunter, Bob Lemanski, Nancy Barnes, or David Wagenseller on the other hand related to 1) any confidentiality or non-competition agreement with Orthofix and the effect on their duties at DJO; 2) the definition, substance, and protection of information Orthofix claims to be trade secrets, including but not limited to customer lists and profile information, customer revenue information, and customer purchasing preferences; 3) this lawsuit or any other lawsuit brought by Orthofix against any of these parties, except to the extent that any such discussion may be privileged in which case a privilege log should be provided.

DJO objects to the production of all communications between Gordon and the individuals named above based upon undue burden and indicates that document review in this case is particularly time consuming because reviewing attorneys must look for attorney-client privilege and make protective designations and also redact HIPAA protected patient information. (Motion 69, pages 1-2)

Orthofix asserts that Gordon and DJO have created an arrangement whereby Gordon indirectly solicits her former Orthofix customers by selling those customers back bracing and pain cream while introducing them to others from DJO to sell bone growth stimulators to the former Orthofix customers. Orthofix further argues that the other employee-defendants used a similar scheme with ...


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