Mercexchange, L.L.C. v. eBay Inc. et al Doc.

15
Case 3:07-cv-00231-IEG-POR Document 15 Filed 02/13/2007 Page 1 of 3

1 Jeffrey G. Randall (CA Bar No. 130811)

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
2 525 University Avenue
Palo Alto, CA 94301
3 (650) 470-4500
Email: jrandall@skadden.com
4
Allan M. Soobert (pro hac vice)
5 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 New York Avenue
6 Washington, DC 20005
(202) 371-7000
7 Email: asoobert@skadden.com

8 David Peyman (CA Bar No. 234268)

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
9 300 South Grand Avenue, Suite 3400
Los Angeles, CA 90071
10 (213) 687-5000

11 Attorneys for Defendants

eBay Inc. and Half.com, Inc.
12

13

14 IN THE UNITED STATES DISTRICT COURT

15 SOUTHERN DISTRICT OF CALIFORNIA

16
)
17 MERCEXCHANGE, L.L.C., ) Case No. 3:07-CV-231
)
18 Plaintiff, ) (Case No. 2:01-CV-736 Pending in the
) United States District Court for the Eastern
19 v. ) District of Virginia)
)
20 eBAY INC. AND HALF.COM, INC., ) DEFENDANTS EBAY INC. AND
) HALF.COM, INC.’S OPPOSITION TO
21 Defendants. ) PLAINTIFF MERCEXCHANGE,
) L.L.C.’
S MOTION TO QUASH
22 ) SUBPOENA DUCES TECUM UPON
) FISH & RICHARDSON P.C.
23 )

24 I. INTRODUCTION AND STATEMENT OF FACTS

25 Plaintiff MercExchange, L.L.C.’
s (“
MercExchange”
) motion to quash (“
Motion”
) the
26 subpoena duces tecum served by Defendants eBay and Half.com (collectively, “
eBay”
) upon
27 Fish & Richardson (“
Fish”
) is procedurally improper and should be denied.
28
DEFENDANTS’OPPOSITION TO PLAINTIFF’
S MOTION TO
1 QUASH SUBPOENA DUCES TECUM
Case No. 3:07-CV-231

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1 The background and facts of this case have been recited in eBay’
s motion to compel and
2 reply before this court. The relevant facts for this opposition are briefly stated as:

3  January 12, 2007: eBay served the subpoena at issue on Fish (Peyman Decl. Exh. 2), a
copy of which was provided to MercExchange’ s counsel. The subpoena commanded
4 documents to be produced on January 24, 2007;
5  January 16, 2007: Fish objected by letter to the subpoena (Peyman Decl. Exh. 4); and
6  February 9, 2007: MercExchange filed a motion to quash the subpoena in this Court.
7

8 II. ARGUMENT

9 A. MercExchange’
s Motion to Quash is Untimely Under Rule 45

10 Federal Rule of Civil Procedure 45 (“ ) requires a “

Rule 45” timely motion”to quash a

11 subpoena. Fed. R. Civ. P. 45(c)(3). Courts have interpreted “

timely”to require a party to file their

12 motion by the date specified on the subpoena for compliance. See, e.g., 9 Moore’
s Fed. Pract.

13 45.50 (“
[C]ourts have required that the motion be made before the date specified by the subpoena

14 for compliance . . .”
); Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006) (holding a

15 party’
s motion to quash untimely because it was filed over a month after service of the subpoena);

16 Motorsports Merch. Antitrust Litig., 186 F.R.D. 344, 350 (W.D. Va. 1999) (a motion to quash filed

17 36 days after corporate representatives became aware of subpoena and two months after it was due

18 is untimely). By failing to bring their motion until 28 days after service and 16 days after the date
19 specified on the subpoena for compliance, MercExchange’
s motion to quash is untimely and

20 procedurally barred.

21 Further, MercExchange provides no basis for failing to timely move to quash, nor can it.

22 MercExchange received prompt notice of the subpoena yet failed to act for nearly a month in spite

23 of the compressed discovery deadlines imposed by the Eastern District of Virginia Court (“
EDVA

24 Court”
) for this phase of the litigation—timelines that were imposed to accommodate

25 MercExchange. See MercExchange, L.L.C. v. eBay Inc., 2006 U.S. Dist. LEXIS 91059 at *30,

26 n.11 (E.D. Va. Dec. 8, 2006) (Peyman Decl. Exh. 1). MercExchange’
s tardy filing of this Motion

27 only serves to delay the discovery eBay needs to defend itself against the new factual assertions

28 MercExchange relies upon in motions pending before the EDVA Court, as is outlined in eBay’ s
DEFENDANTS’OPPOSITION TO PLAINTIFF’
S MOTION TO
2 QUASH SUBPOENA DUCES TECUM
Case No. 3:07-CV-231
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1 motion to compel and reply. See also MercExchange, 2006 U.S. Dist. LEXIS 91059 at *26, n.10

2 (Peyman Decl. Exh. 1) (“

Although MercExchange firmly opposes reopening discovery . . ., it was
3 MercExchange that submitted numerous expert reports . . . and a declaration . . . . The court’
s
4 decision to consider such materials necessitates that eBay be permitted the opportunity to

5 investigate them.”
) Therefore, MercExchange should be given no leniency in their delayed filing
6 of this motion, as it is merely another attempt to impede eBay’
s righteous discovery efforts.
7 B. The Fish Subpoena Seeks Information Relevant to Matters Pending before
the EDVA Court
8

9 Even if MercExchange’
s Motion is procedurally proper, this Court should deny the Motion

10 based on the arguments set forth in eBay’

s motion to compel and reply, which eBay hereby

11 incorporates by reference. Specifically, the documents eBay requests are relevant to whether an

12 injunction or stay should issue in this case. In fact, the EDVA Court in its Post-Appeal Order

13 stated that “
the PTO reexamination proceedings . . . are plainly pertinent to both the motion to

14 stay and motion for an injunction.” MercExchange, 2006 U.S. Dist. LEXIS 91059 at *40

15 (emphasis added) (Peyman Decl. Exh. 1). Since Fish is representing MercExchange in the

16 reexamination proceedings, eBay’

s subpoena to Fish is fully consistent with the scope of discovery

17 the EDVA Court’

s Order contemplated.

18 III. CONCLUSION

19 For the foregoing reasons, eBay Inc. and Half.com, Inc. respectfully request that this Court

20 deny MercExchange’
s motion to quash because it is untimely and directly contravenes the EDVA

21 Court’
s Order.

22

23 Dated: February 13, 2007 Respectfully submitted,

24

25 s/ Jeffrey G. Randall
Jeffrey G. Randall (CA Bar No. 130811)
26
Attorneys for Defendants
27 eBay Inc. and Half.com, Inc.

28
DEFENDANTS’OPPOSITION TO PLAINTIFF’
S MOTION TO
3 QUASH SUBPOENA DUCES TECUM
Case No. 3:07-CV-231