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Carreker Corp. v. Cannon

October 18, 2006

CARREKER CORPORATION, PLAINTIFF
v.
JACK CANNON, CAST MANAGEMENT CONSULTANTS, INC., ET. AL. DEFENDANTS



The opinion of the court was delivered by: Timothy S. Hogan United States Magistrate Judge

Beckwith, J.

Hogan, M.J.

ORDER

This matter is before the Court on Defendant CAST Management Consultants, Inc.'s ("CAST") Motion to Quash Subpoena to Fifth Third Bank and in the Alternative for Protective Order (Doc. 1), Non-Party Fifth Third Bank's Response to CAST Management's Motion to Quash (Doc. 6), Plaintiff Carreker Corporation's Response to Defendant CAST Management Consultants, Inc.'s Motion to Quash Subpoena to Fifth Third Bank (Doc. 11), Defendant CAST's Reply Memorandum in Support of Motion to Quash and Request for Order Conforming to Order of United States District Court for the Eastern District of Texas (Doc. 12), Carreker Corporation's Opposition to Defendant CAST's Request for Order Conforming to Order of United States District Court for the Eastern District of Texas (Doc. 13), and Plaintiff Carreker Corporation's Notice of Amended Order Issued by Eastern District of Texas (Doc. 14).

BACKGROUND

The issue before this Court involves the issuance of a subpoena by Plaintiff Carreker upon non-party, Fifth Third Bank. Plaintiff, a company headquartered in Texas, originally sued Defendant Cannon in Texas state court alleging that Cannon had downloaded and copied Plaintiff's trade secrets and confidential and proprietary information to an external computer hard drive. Plaintiff later amended its action adding CAST and Jack Leach as defendants. Defendant CAST removed the action to the United States District Court for the Eastern District of Texas. Following removal, both Defendants CAST and Leach have continued to argue lack of personal jurisdiction through motions made pursuant to Federal Rule of Civil Procedure 12(b)(6).

On June 29, 2006, a Joint Conference Report was submitted to the Court, wherein the parties specifically reported the following agreement:

The parties agree that discovery shall be phased as between Carreker Corporation, Plaintiff, and Cast Management Consultants, Inc. and Jack Leach. Until the Court has determined the jurisdiction issue, discovery of those two defendants shall be limited to discovery relating to their objections to personal jurisdiction and whether those defendants are subject to personal jurisdiction in Texas.

(Doc. 1, Ex. 1).

On June 26, 2006, Plaintiff served a subpoena upon Fifth Third Bancorp in Cincinnati, Ohio, seeking information regarding the extent of CAST's use of Plaintiff's trade secrets and the extent to which CAST has profited from that use. Plaintiff claims that the subpoena also seeks information relevant to the jurisdictional issues. (Doc. 1, Ex. 2). Thereafter, on July 24, 2006, Plaintiff issued a second subpoena to Fifth Third Bank requesting the same information as requested by its first subpoena. (Doc. 1, Ex. 7).

Defendant CAST contends that the subpoena should be quashed because the information sought is not related to jurisdictional issues; substantive discovery is premature in view of the parties' agreement relating to discovery; and the requests are not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff, in contrast, argues that CAST lacks standing to move to quash the subpoena because it has failed to show that it has any protectable right or privilege in the information sought; the parties did not agree to postpone the taking of substantive discovery from non-parties; the parties agreed that discovery with respect to Cannon was proper at this stage of litigation; and the requests are appropriately tailored with respect to the time period and issues relevant to this lawsuit.

Non-party, Fifth Third Bank, in its response to Defendant's motion, states that it is in the process of complying with the subpoena, but will temporarily hold on to the documents until the Court issues an order delineating which documents should be produced. (Doc. 6). Fifth Third Bank also requests that it be protected from further expense in this matter. (Id.).

OPINION

In its Reply memorandum, Defendant advises the Court that the district court for the Eastern District of Texas issued a decision on September 11, 2006, granting in part and denying in part CAST's Motion to Quash which was filed in the Eastern District of Texas two days prior to the motion sub judice. (See Doc. 12, Attachment 2). Defendant contends that, because the Eastern District of Texas, which has jurisdiction over the underlying case, has ruled comprehensively on the Motion to Quash, there is no need for this Court to re-visit the issues or to render a different and potentially conflicting decision. Defendant, therefore, asks that the Court adopt the Order out of the Eastern District of Texas, or otherwise issue a decision or Order in conformity therewith, and order or permit Fifth Third Bank to respond to the subpoena pursuant to the terms of said Order. (Doc. 12). However, on September 29, 2006, the District Court for the Eastern District of Texas amended its previous order of September 11, ...


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