Subpoena-thon: Subpoenaing Confidential Information

Rule 45(d)(3)(B)(i) allows a court to quash or modify a subpoena if it requires “disclosing a trade secret or other confidential research, development, or commercial information.”  I find this objection overused and typically appears as a sort of catch-all objection.

Ruhlman v. Rudolfsky addressed it where a defendant moved to quash a subpoena for his banking records.[1]  Assuming a personal right or privilege existed in these records, the defendant argued the records should not be obtained at all.  The court instead suggested a protective order would be more than sufficient to address his concerns.  The defendant offered a series of arguments why a protective order would be insufficient.  “Defendants’ counsel insinuated that Plaintiff’s counsel might not comply with the terms of a stipulated protective order.”  That argument failed.  “We will not assume that counsel would breach the duty of an officer of the court by disclosing sales information to Truswal or to any Hyrdro-Air competitor in violation of a protective order.”[2]  Also “Defendants’ counsel conveyed Defendants’ general reluctance to disclose the information given their view that it is competitively sensitive.”  That general excuse also failed.  Finally, the defendant was concerned that the documents could be publically filed with the court.  This excuse failed too because there were procedures for in camera and sealed filings.

[1] No. 2:14-cv-00879, 2016 U.S. Dist. LEXIS 159430 (D. Nev. Nov. 17, 2016).
[2] Truswal Sys. Corp. v. Hydro-Air Eng’g, Inc., 813 F.2d 1207, 1211 (Fed. Cir. 1987).