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Graduation Solutions LLC v. Acadima, LLC

United States District Court, D. Connecticut

June 21, 2018

GRADUATION SOLUTIONS, LLC, Plaintiff,
v.
ACADIMA, LLC; ALEXANDER LOUKAIDES; Defendants.

          RULING AND ORDER ON DEFENDANT ALEXANDER LOUKAIDES' MOTION FOR PROTECTIVE ORDER

          Hon. Vanessa L. Bryant United States District Judge.

         Plaintiff, Graduation Solutions, LLC, initiated this action against Acadima, LLC (“Acadima”) and its principal Defendant Alexander Loukaides (“Mr. Loukaides”) asserting the following causes of action; (1) copyright infringement under 17 U.S.C. § 101, et. seq.; (2) trade dress infringement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (3) false advertising under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (4) violation of Connecticut Unfair Trade Practices Act (“CUTPA”); (5) violation of Connecticut's common law prohibition against unfair competition; and (6) unjust enrichment. Before the Court is Mr. Loukaides Motion for Protective Order (the “Motion”). [Dkt. 47]. The Motion requests the Court both quash Plaintiff's notice of deposition of Mr. Loukaides and to adjourn any futures depositions of Mr. Loukaides until after his Motion to Dismiss [Dkt. 36] has been decided. For the following reasons, the Motion is DENIED.

         The Motion and its supporting memorandum of law seek relief under Federal Rule of Civil Procedure 26(c)(1) which provides in pertinent part:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending-or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following . . .

Fed. R. Civ. P. 26(c)(1). The enumerated protective measures relate to the manner in which the discovery is to be provided and the manner in which discovered information is used. Id. The enumerated means of affording protection limit but do not prevent discovery from being obtained. The Motion does not seek to limit the information adduced at the noticed deposition or its use; it seeks to preclude the deposition from occurring. Thus, Rule 26 in inapt.

         Assuming for argument sake that Rule 26 is applicable, the Court interprets Mr. Loukaides' Motion under the standard imposed by that rule. Rule 26 provides for discretionary relief “to circumscribe discovery even of relevant evidence by making any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Jones v. Hirschfeld, 219 F.R.D. 71, 74-75 (S.D.N.Y. 2003) (citing to Herbert v. Lando, 441 U.S. 153, 177 (1979)) (internal quotations omitted). A court has authority to, sua sponte, stay discovery and limit the scope pursuant to Rule 26(b)(2)(C). See Plaintiffs # 1-21 v. Cty. of Suffolk, 138 F.Supp.3d 264, 279 (E.D.N.Y. 2015); Tucker v. Am. Int'l Grp., Inc., 281 F.R.D. 85, 91 (D. Conn. 2012). The movant has the burden of persuasion. See Jones, 219 F.R.D. at 74 (S.D.N.Y. 2003). The movant must demonstrate a “clearly defined and serious injury” to be entitled to such relief. Allen v. City of New York, 420 F.Supp.2d 295, 302 (S.D.N.Y. 2006). The Motion does not clearly define a serious injury that would entitle Mr. Loukaides to relief, particularly considering the allegations of the complaint.

         In addition to failing to meet the substantive burden of persuasion, the motion fails to satisfy Rule 26(c)'s procedural requirements. A motion submitted pursuant to Rule 26(c) must include a certification “that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Fed.R.Civ.P. 26(c)(1). The District of Connecticut Local Rules delineate the contours of this conference requirement.[1]The Motion does not include a certification that satisfies Rule 26 and Local Rule 37(a)'s requirement. M r . Loukaides is not entitled to protection under Rule 26 even assuming it does apply.

         The Federal Rules of Civil Procedure do provide a vehicle for precluding a deposition from taking place. Rule 45 permits an officer of the court to issue a subpoena commanding “each person to whom it is directed to attend and testify at a deposition.” Fed.R.Civ.P. 45(a)(1)(A)(iii). Like Rule 26, Rule 45 sets certain substantive and procedural standards which must be met in order to avail oneself to the benefits accorded by the rule.

         “On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; [or] requires a person to comply beyond the geographical limits specified in Rule 45(c). . . .” Fed.R.Civ.P. 45(d)(3)(A)(i)-(ii). Section 45(c) specifies where a deposition may be conducted:

A subpoena may command a person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person
(i) is a party or a party's officer; or
(ii) is commanded to attend a trial and would not incur ...

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