The opinion of the court was delivered by: Norah McCann King United States Magistrate Judge
This matter arises in connection with antitrust litigation currently pending the United States District Court for the Northern District of Georgia, in which plaintiffs, insulation contractors, allege that defendants, manufacturers of residential fiberglass insulation and Masco Corporation (and affiliated companies) [collectively "Masco"], identified as the nation's largest purchaser of residential insulation products, conspired to fix prices paid for such products by the members of the plaintiff class. Columbus Drywall & Insulation, Inc., et al. v. Masco Corp., et al., 1:04-CV-3066JEC (N.D.Ga.)["the Antitrust Litigation"]. This matter is now before the Court on the motion of Installed Building Products ["IBP"], which is not a party to the Antitrust Litigation, to quash a subpoena issued to it in connection with the Antitrust Litigation by Masco, characterized by IBP as its "direct and largest competitor." Motion to Quash, at 5.
IBP contends that the information sought by the subpoena is proprietary and highly confidential. IBP resists the requested discovery on three (3) bases. It argues, first, that the requested information falls outside the ambit of discoverable information; second, that to the extent the subpoena may seek discoverable information, that information is reasonably available from other sources, including parties to the litigation or industry experts; and, third, that the protective order entered in the Antitrust Litigation is inadequate to secure the legitimate interests of IBP. In response, Masco insists that, because it does not seek "the specific prices that IBP pays for" insulation, Masco's Memorandum in Opposition, at 4, its anticipated inquiry does not go to proprietary or confidential information. Moreover, Masco contends that the relevance of the requested information is "obvious," Id., at 6, because it will tend to demonstrate that the conduct about which plaintiffs in the Antitrust Litigation complain "is perfectly legal." Id. Finally, Masco argues that the protective order entered in the Antitrust Litigation, Exhibit D attached to Motion to Quash, which would prohibit disclosure of highly confidential information to all but attorneys, including in-house counsel who do not make business decisions or advise on specific prices, should eliminate IBP's confidentiality concerns.
Rule 45 of the Federal Rules of Civil Procedure governs the issuance and enforcement of subpoenas. Rule 45(c)(3) provides, in pertinent part, as follows:
(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information,
* * * the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, . . . the court may order appearance or production only upon specified conditions.
Once objection to the subpoena has been made, "the party serving the subpoena shall not be entitled to inspect and copy the materials . . .except pursuant to an order of the court by which the subpoena was issued." Fed..R.Civ.P. 45(c)(2)(B).
Masco has identified its anticipated areas of inquiry as follows:
- General background of contractor
- Knowledge of market for sale of residential fiberglass insulation (e.g., number of suppliers, ...