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Hybrid Athletics, LLC v. Hylete, LLC

United States District Court, D. Connecticut

August 30, 2019

HYBRID ATHLETICS, LLC, Plaintiff,
v.
HYLETE, LLC, HYLETE, INC., RONALD L. WILSON, II, and MATTHEW PAULSON, Defendants.

          RULING AND ORDER ON MOTIONS TO QUASH

          Victor A. Bolden, United States District Judge.

         Hybrid Athletics, LLC (“Plaintiff” or “Hybrid”) and non-party CrossFit, Inc. (“CrossFit”) have moved to quash the third-party subpoena served in August 2018 by Defendant Hylete, LLC (“Hylete”) on CrossFit. Hybrid Athletics, LLC’s Notice of Motion to Quash Subpoena to Non-Party CrossFit, Inc. to Testify at a Deposition and Produce Documents in a Civil Action; Memorandum of Points and Authorities in Support Thereof, dated Sept. 19, 2018 (“Hybrid Mot.”), ECF No. 163; Non-Party CrossFit, Inc.’s Notice of Motion to Quash Subpoena to Testify at a Deposition and Produce Documents in a Civil Action; Memorandum of Points and Authorities in Support Thereof, dated Sept. 19, 2018 (“CrossFit Mot.”), ECF No. 165; see also Hylete LLC’s Amended Notice of Third-Party Subpoena to CrossFit, Inc. (“Hylete Subpoena”), annexed as Ex. A to Declaration of Michael J. Kosma in Support of Hybrid Athletics, LLC’s Motion to Quash, dated Sept. 19, 2018 (“Kosma Hybrid Decl.”), ECF No. 164-1, and as Ex. A to Declaration of Michael J. Kosma in Support of CrossFit, Inc.’s Motion to Quash, dated Sept. 19, 2018 (“Kosma CrossFit Decl.”), ECF No. 166-1.

         That subpoena seeks both testimony and documents that Hylete argues are relevant to its defenses in this trademark infringement action, but which both Hybrid and CrossFit contend are protected from disclosure by either the attorney-client privilege, the common interest rule, or the work product doctrine. In the alternative, Hybrid argues that the discovery sought is irrelevant or disproportionate.

         For the reasons explained below, the motions to quash are GRANTED IN PART AND DENIED IN PART.

         The motions are granted in part on relevance grounds, but only to the extent consistent with the rulings below, and with respect to the four documents specifically identified as containing attorney work product. The motions are otherwise denied with respect to the claimed application of the attorney-client privilege, the common interest rule, and the work product doctrine. Because of the unique importance of the attorney-client privilege in our system of justice, the denial on privilege grounds is without prejudice to renewal by September 20, 2019, subject to an evidentiary showing of the existence of either an attorney-client relationship or a joint litigation strategy between Hybrid and Cross-Fit’s in-house counsel, consistent with the cases cited in this ruling.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Familiarity with the factual allegations and procedural history of this trademark infringement action is assumed. See Hybrid Athletics v. Hylete, LLC, 2018 WL 4323816, at *1–2 (D. Conn. Sept. 10, 2018); Ruling and Order on Motion to Dismiss and Motion to Amend Answer, dated Aug. 30, 2019, ECF No. 209, at 2–5.

         On July 27, 2018, the parties jointly moved for a discovery conference to address several pending issues, including, inter alia, discovery sought by Hylete from non-party CrossFit that Hybrid claimed would violate attorney-client privilege. Joint Motion for Discovery Conference, dated Jul. 27, 2018 (“Joint Mot.”), ECF No. 75.

         On either August 3, 2018 or August 6, 2018,[1] Hylete served a third-party subpoena on CrossFit, noticing a 30(b)(6) deposition for August 31, 2018. See Subpoena. The subpoena set a date of August 31, 2018 at 9:00 a.m. for a deposition, and commanded CrossFit to designate one or more officers, directors, managing agents, or other persons, under Federal Rule of Civil Procedure 30(b)(6), to appear on behalf of CrossFit to testify on eleven topics:

TOPIC NO. 1
Any assistance You have provided to Hybrid or Robert Orlando relating to the Trademark Opposition Proceeding including, but not limited to, any financial assistance or any other thing of value provided by You.
TOPIC NO. 2
Any assistance You have provided to Hybrid or Robe1i Orlando relating to This Lawsuit including, but not limited to, any financial assistance or any other thing of value provided by You.
TOPIC NO. 3
Your involvement in the Trademark Opposition Proceeding.
TOPIC NO. 4
Your involvement in This Lawsuit including, but not limited to, any financial or other assistance You have provided to Hybrid or Robert Orlando to partially or completely finance This Lawsuit.
TOPIC NO. 5
Your decision to ban HYLETE from YOUR events from 2013 to the present.
TOPIC NO. 6
Any contractual agreements between You and Robert Orlando.
TOPIC NO. 7
Any contractual agreements between You and Hybrid.
TOPIC NO. 8
Communications with Hybrid or Robert Orlando regarding Hylete, the Hylete Marks, the Trademark Opposition Proceeding, or This Lawsuit.
TOPIC NO. 9
Any attorney-client relationship or any other relationship that may implicate any privilege between You and Robert Orlando.
TOPIC NO. 10
Any attorney-client relationship or any other relationship that may implicate any privilege between You and Hybrid.
TOPIC NO. 11
Viewership of the CrossFit competitions in 2010 and 2011.

Subpoena, Attachment A, at 3–4 (“Topics of Examination”).

         The subpoena further commanded CrossFit to produce documents on August 20, 2018, responsive to the following requests:

REQUEST NO. 1
Documents sufficient to show any assistance You have provided to Hybrid or Robert Orlando relating to the Trademark Opposition Proceeding including, but not limited to, documents relating to any financial assistance or any other thing of value provided by You.
REQUEST NO. 2
Documents sufficient to show any assistance You have provided to Hybrid or Robert Orlando relating to This Lawsuit including, but not limited to, documents relating to any financial assistance or any other thing of value provided by You.
REQUEST NO. 3
Documents sufficient to show the scope of Your involvement in the Trademark Opposition Proceeding.
REQUEST NO. 4
Documents sufficient to show Your involvement in This Lawsuit including, but not limited to, documents sufficient to show any financial or other assistance You have provided to Hybrid or Robert Orlando to partially or completely finance This Lawsuit.
REQUEST NO. 5
All Communications between You and Hybrid or Robert Orlando concerning the Trademark Opposition Proceeding including, but not limited to, Communications regarding any purported instances of actual confusion between the Hybrid Marks and Hylete Marks.
REQUEST NO. 6
All Communications between You and Hybrid or Robert Orlando concerning This Lawsuit.
REQUEST NO. 7
Documents sufficient to show whether there is any attorney-client relationship or any other relationship that may implicate any privilege between You and Robert Orlando.
REQUEST NO. 8
Documents sufficient to show whether there is any attorney-client relationship or any other relationship that may implicate any privilege between You and Hybrid.
REQUEST NO. 9
All Communications between You and Hybrid concerning the ...

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