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`HILGERS GRABEN PLLC
`MICHAEL MERRIMAN (SBN 234663)
`mmerriman@hilgersgraben.com
`655 West Broadway, Suite 900
`San Diego, CA 92101
`Telephone: 619-369-6232
`Facsimile: 402-413-1880
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`TRENT TANNER (pro hac vice)
`ttanner@hilgersgraben.com
`575 Fallbrook Blvd. Suite 202
`Lincoln, NE 68521
`Telephone: 402-260-1391
`Facsimile: 402-413-1880
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`JENNIFER ERICKSON BAAK (pro hac vice
`pending)
`jericksonbaak@hilgersgraben.com
`600 17th Street, Suite 2800
`Denver, CO 80202
`Telephone: 773-407-5502
`Facsimile: 402-413-1880
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`Attorneys for Movant Gregory Lucier
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`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH TRIAL SUBPOENA
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
`
`SAN DIEGO DIVISION
`NUVASIVE, INC., a Delaware
`
`Case No. 18-cv-00347-CAB-MDD
`corporation,
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`
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`Plaintiff,
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`v.
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`ALPHATEC HOLDINGS, INC., a
`Delaware corporation, and ALPHATEC
`SPINE, INC., a California corporation,
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`Defendants.
`
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOVANT
`GREGORY LUCIER’S MOTION
`TO QUASH OR MODIFY
`TRIAL SUBPOENA
`
`Judge: Hon. Cathy Ann Bencivengo
`Courtroom: 4C
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`PER CHAMBERS RULES, NO
`ORAL ARGUMENT UNLESS
`SEPARATELY ORDERED BY
`THE COURT
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`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH TRIAL SUBPOENA
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`18-cv-00347-MDD-CAB
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`

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`Case 3:18-cv-00347-CAB-MDD Document 373-1 Filed 02/09/22 PageID.34519 Page 3 of 25
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
`I.
`BACKGROUND ............................................................................................. 1
`II.
`III. LEGAL STANDARDS ................................................................................... 4
`A.
`Timeliness of Motion to Quash under Rule 45 ..................................... 4
`B. Geographic Limits under Rule 45 ......................................................... 5
`C. Undue Burden under Rule 45 ............................................................... 6
`IV. ARGUMENT .................................................................................................. 7
`A.
`The Subpoena Improperly Requires Compliance Outside the
`Geographic Limits of Rule 45 ............................................................... 7
`1. Mr. Lucier does not reside within 100 miles of San Diego. ....... 7
`2. Mr. Lucier is not employed within 100 miles of San
`Diego. .......................................................................................... 7
`3. Mr. Lucier does not regularly transact business within 100
`miles of San Diego. ..................................................................... 8
`B. Alphatec’s Subpoena Is Unduly Burdensome ...................................... 9
`1.
`Testimony regarding NuVasive’s motive for suing
`Alphatec is inadmissible. .......................................................... 10
`Numerous other topics for which Alphatec seeks
`Mr. Lucier’s testimony are cumulative and can be
`addressed by other witnesses at trial......................................... 12
`Alphatec may introduce Mr. Lucier’s testimony through
`his deposition. ........................................................................... 17
`If the Court Declines to Quash the Subpoenas, They Should Be
`Modified .............................................................................................. 18
`
`2.
`
`3.
`
`C.
`
`
`V.
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`CONCLUSION…………………………………………………………….18
`
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH TRIAL SUBPOENA
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`TABLE OF AUTHORITIES
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`PAGE(S)
`
`CASES
`Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300
`F.R.D. 406, 410 (C.D. Cal. 2014) ................................................................. 12
`
`Arminak v. Arminak & Assocs., No. CV 16-3382 JAK (SSx), 2017 U.S.
`Dist. LEXIS 230112, at *8 (C.D. Cal. Mar. 30, 2017) ......................... 6, 7, 10
`
`Brower v. McDonald's Corp., No. 2:19-cv-02099-GMN-BNW, 2021
`U.S. Dist. LEXIS 154185, at *6-7 (D. Nev. May 28, 2021) ......................... 17
`
`Cobb v. Rodriguez, No. 3:13-cv-01353-BEN-JMA, 2016 U.S. Dist.
`LEXIS 102823, at *2-3 (S.D. Cal. Aug. 2, 2016) ......................................... 11
`
`Comm-Tract Corp. v. N. Telecom, 168 F.R.D. 4, 7 (D. Mass. 1996) ....................... 5
`
`Expansion Capital Grp., LLC v. Patterson, No. 19-00214 (MN), 2020
`U.S. Dist. LEXIS 701, (D. Del. Jan. 3, 2020) ............................................. 7, 9
`
`Fichman v. Media Ctr., 512 F.3d 1157, 1160 (9th Cir. 2008) .................................. 8
`
`Freed v. Home Depot U.S.A., Inc., No. 18cv359-BAS (LL), 2019 U.S.
`Dist. LEXIS 23763, (S.D. Cal. Feb. 13, 2019) ........................................... 5, 6
`
`Greene v. Drobocky, No. 1:12-CV-00078-TBR, 2014 U.S. Dist. LEXIS
`203260, at *5-6 (W.D. Ky. Aug. 27, 2014) .................................................... 8
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 105, 136 S. Ct.
`1923, 1933 (2016) ......................................................................................... 16
`
`Iorio v. Allianz Life Ins. Co., No. 05cv633 JLS (CAB), 2009 U.S. Dist.
`LEXIS 97617, at *15-16 (S.D. Cal. Oct. 21, 2009) ........................................ 5
`
`M’Baye v. N.J. Sports Prod., 246 F.R.D. 205, 207-08 (S.D.N.Y. 2007) .................. 9
`
`Mustafa Dogan Dairy Consulting, LLC v. La Colombe Torrefaction,
`Inc., No. 1:17-cv-277, 2018 U.S. Dist. LEXIS 228934, at *6
`(W.D. Mich. Sep. 7, 2018) .............................................................................. 9
`
`N. Am. Co. for Life & Health Ins. v. Philpot, No. 08cv270 BEN (NLS),
`2010 U.S. Dist. LEXIS 124577, at *6-7 (S.D. Cal. Nov. 24,
`2010) ................................................................................................................ 5
`
`Odyssey Reinsurance Co. v. Nagby, No. 16-CV-3038-BTM(WVG),
`2018 U.S. Dist. LEXIS 70641, at *5 (S.D. Cal. Apr. 26, 2018) ..................... 5
`
`Perera v. United States Fid. & Guar. Co., No. 8:02-CV-688-EAJ, 2007
`U.S. Dist. LEXIS 90331, at *4-5 (M.D. Fla. Dec. 3, 2007) .......................... 17
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
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`Pizzuti v. Nashville Hosp. Capital, LLC, No. 2:18-mc-0040, 2018 U.S.
`Dist. LEXIS 183247, at *14-15 (S.D. Ohio Oct. 25, 2018) .......................... 12
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`Regents of the Univ. of Cal. v. Kohne, 166 F.R.D. 463,(S.D. Cal. 1996) ....... 5, 7, 14
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`Satija v. Permanent Gen. Assurance Corp., No. 1:13-CV-00082, 2014
`U.S. Dist. LEXIS 193250, at *6-7 (N.D. Ohio Apr. 30, 2014) ....................... 8
`
`SBP LLLP v. Hoffman Constr. Co. of Am., No. 1:19-cv-00266-DCN,
`2021 U.S. Dist. LEXIS 138780, at *7-8 (D. Idaho July 23, 2021) ............... 12
`
`United States Fire Ins. Co. v. Icicle Seafoods, Inc., No. C20-401 RSM,
`2021 U.S. Dist. LEXIS 153089, at *13 (W.D. Wash. Aug. 13,
`2021) ................................................................................................................ 6
`
`Williams v. Cty. of San Diego, No. 17-cv-00815-MMA (JLB), 2019
`U.S. Dist. LEXIS 196967, (S.D. Cal. Nov. 13, 2019) .............................. 7, 12
`
`
`
`STATUTES
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`28 U.S.C. § 1821 ...................................................................................................... 18
`
`
`RULES
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`Fed. R. Civ. P. 45(c)(1)(A) ........................................................................................ 5
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`Fed. R. Civ. P. 45(d)(3)(A)(ii) ............................................................................... 5, 9
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`Fed. R. Civ. P. 45(d)(3)(A)(iv) .................................................................................. 6
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`Fed. R.Civ. P. 45(d)(1) .............................................................................................. 6
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`Federal Rule of Evidence 804(b)(1) ........................................................................ 14
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`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
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`iii
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`I.
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`
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`INTRODUCTION
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`The Court should quash Alphatec’s subpoena requiring Colorado resident,
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`Greg Lucier, to provide live testimony at trial. Federal Rule of Civil Procedure 45
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`requires the Court to quash a subpoena that requires compliance beyond the 100-
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`mile geographical limitation set forth in the Rule, or that imposes an undue burden
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`on the person subpoenaed. Alphatec’s subpoena fails to comply with Rule 45’s
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`geographic limitation because it would require Mr. Lucier to travel more than 700
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`miles to testify in a place where he does not reside, is not employed, and does not
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`regularly transact business in person. Moreover, compliance with the subpoena
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`would impose an undue burden because the Court has already ruled that the
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`testimony Alphatec seeks from Mr. Lucier is inadmissible, and because the
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`remaining testimony would be cumulative of testimony from other witnesses already
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`appearing at trial. And, in any event, Alphatec can address these topics at trial
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`through Mr. Lucier’s deposition testimony. Thus, requiring Mr. Lucier to comply
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`with the subpoena would impose an undue burden, which provides an independent
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`basis for the Court to quash the subpoena.
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`II. BACKGROUND
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`In early 2018, NuVasive, Inc. sued Alphatec Holdings, Inc. and Alphatec
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`Spine, Inc. (“Alphatec”), asserting claims for infringement of several of
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`NuVasive’s patents related to its lateral spine fusion technology and surgical
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`techniques. See Doc. No. 1 (Complaint), NuVasive, Inc. v. Alphatec Holdings, Inc.
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`et al., Case No. 18-cv-00347-CAB-MDD (S.D. Cal.) (“NuVasive v. Alphatec”).
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`Trial in NuVasive v. Alphatec is set to begin on March 1, 2022, and to continue
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`March 2-4 and 7-10, at the United States Courthouse for the Southern District of
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`California in San Diego. Doc. No. 368.
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`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
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`At the time NuVasive filed suit, Mr. Lucier was NuVasive’s CEO and
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`chairman of the board of directors. Lucier Decl. ¶¶ 2-5.1 In November 2018,
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`however, Mr. Lucier resigned from his position as CEO of NuVasive, and in May
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`2021 he stepped down from the NuVasive board of directors. Id. Since that time,
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`Mr. Lucier has had no affiliation with NuVasive. Id. ¶ 5. In January 2020, Alphatec
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`deposed Mr. Lucier in NuVasive v. Alphatec. Id. ¶ 8.
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`Mr. Lucier used to own a home and resided in Encinitas, California. Lucier
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`Decl. ¶ 26. In early 2020, Mr. Lucier permanently moved to Aspen, Colorado,
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`where he has worked and resided ever since. Id. ¶ 9. Mr. Lucier possesses a
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`Colorado driver’s license and is registered to vote in Colorado. Id. ¶¶ 11, 15. He
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`owns the home where he lives in Aspen and his vehicles are registered in
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`Colorado. Id. ¶¶ 10, 13. He also transferred ownership of the Encinitas property to
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`an irrevocable trust to be held for the benefit of his children (“Trust”). Id. ¶ 27.
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`Accordingly, Mr. Lucier no longer owns, nor does he have any control over or
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`ability to dispose of, the Encinitas property, or any other property within 100 miles
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`of San Diego. Id. ¶¶ 27, 28. The Trust is presently renting the Encinitas property
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`out as a vacation home. Id. ¶ 27. On the occasions Mr. Lucier has stayed in the
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`house since his move to Colorado, he has paid rent to the Trust. Id. He also does
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`not hold a California driver’s license, is not registered to vote in California, does
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`not own any vehicles registered in California, and does not own any property in
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`California. Id. ¶¶ 12, 14, 16.
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`Mr. Lucier is the CEO of Corza Health, Inc., a position he has held since
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`approximately April 2019. Lucier Decl. ¶ 17. Corza Health is a Delaware
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`corporation that partners with private equity to acquire, build, and scale health and
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`1 “Lucier Decl.” refers to the Declaration of Movant Gregory Lucier In Support
`of Motion to Quash Trial Subpoena,” filed concurrently herewith.
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`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
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`life sciences companies. Id. ¶¶ 18-19. While Corza Health maintains an office in
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`Del Mar, California, Mr. Lucier does not work out of Corza Health’s Del Mar
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`office. Id. ¶¶ 19, 21. Instead, he works out of Corza Health’s office in Aspen,
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`Colorado. Id. ¶ 22. Mr. Lucier does not pay any income tax to California for
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`income received from Corza Health. Id. ¶ 24. Mr. Lucier’s only other business-
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`related or professional affiliations with the San Diego area as a board member of
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`two San Diego-based companies, Maravai LifeSciences Holdings, Inc. (“Maravai”)
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`and Epic Sciences, Inc. (“Epic Sciences”). Id. ¶ 34. In these roles, Mr. Lucier
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`travels occasionally to the San Diego area to participate in board meetings. Id.
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`¶¶ 35, 36. Mr. Lucier is not considered an employee of either Maravai or Epic
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`Sciences, nor does he perform any services for Maravai or Epic Sciences other
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`than in his role as a board member. Id.2
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`Since moving to Colorado, Mr. Lucier has made a number of trips to the San
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`Diego area, but the predominant purpose of most of these trips has been for leisure
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`and vacation. Lucier Decl. ¶ 29. Although Mr. Lucier visits Corza Health’s Del
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`Mar offices during these trips, the office visits are incidental to his leisure travel
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`and not the purpose or motivation for his travel. Id. ¶ 31. When he has visited the
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`Corza Health offices during his trips to San Diego, he typically spends just a few
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`hours at the office, mainly to greet and spend time with the two Corza Health
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`employees stationed in its Del Mar office. Id. ¶ 20, 31. He rarely conducts or
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`participates in business meetings during his visits to Corza Health’s Del Mar
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`offices. Id. ¶ 31. Mr. Lucier does not have his own, dedicated office space in Corza
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`Health’s Del Mar offices, but instead uses an office that he and others use only
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`when visiting. Id. ¶ 21. Corza Health has never acquired or otherwise invested in a
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`2 Mr. Lucier is also a board member of several other companies located around
`the country. See Lucier Decl. ¶ 34.
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`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
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`San Diego-based company, nor has Corza Health ever seriously considered doing
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`so. Id. ¶ 33.
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`On or about January 4, 2022, Alphatec, through a process server, served a
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`trial subpoena on Mr. Lucier at his home in Aspen, Colorado, commanding him to
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`appear to testify at trial on February 28, 2022 (the “Subpoena”).3 See Lucier Decl.
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`¶ 38; Ex. 2 to Lucier Decl. (Counsel for Alphatec has agreed that Mr. Lucier need
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`not appear to testify until at least March 7, 2022. 4)
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`III. LEGAL STANDARDS
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`A. Timeliness of Motion to Quash under Rule 45
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`A motion to quash is considered “timely” for purposes of Rule 45 so long as
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`it is filed before the date noticed for compliance. Freed v. Home Depot U.S.A.,
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`Inc., No. 18cv359-BAS (LL), 2019 U.S. Dist. LEXIS 23763, at *15 (S.D. Cal. Feb.
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`3 Previously, on December 26, 2021, a process server hired by Alphatec served
`Mr. Lucier with a trial subpoena and a check for $51.00 while he and his family
`were vacationing in San Diego over the Christmas holiday. During this trip, as on
`previous occasions, Mr. Lucier was renting the Encinitas property from the Trust.
`Lucier Decl. ¶ 37. This subpoena commanded Mr. Lucier to appear and testify at
`the NuVasive v. Alphatec trial on January 18, 2022. Because this trial was
`continued due to COVID, see Doc. No. 367, Alphatec later served the subpoenas
`that are the subject of this motion on Mr. Lucier at his residence in Colorado.
`Lucier Decl. ¶ 38.
`4 On January 4, 2022, along with the subpoena commanding Mr. Lucier’s
`appearance on February 28, the process server simultaneously served two
`additional trial subpoenas on Mr. Lucier, one commanding him to appear on April
`4, 2022, and another to appear on May 9, 2022. The process server did not,
`however, tender any payment to Mr. Lucier for his witness fee or a mileage
`allowance as required by Rule 45(b). Lucier Decl. ¶ 38. BNSF Ry. Co. v. Alere,
`Inc., No. 18-CV-291-BEN-WVG, 2018 U.S. Dist. LEXIS 83559, at *12-13 (S.D.
`Cal. May 17, 2018) (“It is well settled that a witness fee must be tendered
`concurrently with the service of a subpoena.”). Counsel for Alphatec has agreed to
`rescind the April 4 and May 9 subpoenas. And after meeting and conferring
`regarding Alphatec’s failure to tender the required witness fee and mileage
`allowance, counsel for Mr. Lucier and for Alphatec agreed on February 9, 2022,
`that Mr. Lucier would waive his argument that the Subpoena was not properly
`served due to the nonpayment of the witness fee and mileage allowance in
`exchange for Alphatec’s agreement to a shortened briefing schedule, whereby
`Alphatec would have two weeks to respond to this Motion, and to remit payment
`for the proper witness fee and mileage allowance before trial.
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
`
`
`
`4
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`

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`13, 2019); Odyssey Reinsurance Co. v. Nagby, No. 16-CV-3038-BTM(WVG),
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`2018 U.S. Dist. LEXIS 70641, at *5 (S.D. Cal. Apr. 26, 2018); N. Am. Co. for Life
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`& Health Ins. v. Philpot, No. 08cv270 BEN (NLS), 2010 U.S. Dist. LEXIS
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`124577, at *6-7 (S.D. Cal. Nov. 24, 2010).
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`B. Geographic Limits under Rule 45
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`“A subpoena may command a person to attend a trial, hearing, or deposition
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`only as follows: (A) within 100 miles of where the person resides, is employed, or
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`regularly transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A) (emphasis
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`added). In considering when a non-party witness may be commanded by subpoena
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`to appear, the court should read the rule “literally” and consider “the burden to the
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`witness of being required to physically appear.” Regents of the Univ. of Cal. v.
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`Kohne, 166 F.R.D. 463, 464 (S.D. Cal. 1996). As a result, the Court is required to
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`quash a subpoena that does not meet these requirements. Fed. R. Civ. P.
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`45(d)(3)(A)(ii) (“On timely motion, the court for the district where compliance is
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`required must quash or modify a subpoena that: . . . requires a person to comply
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`beyond the geographical limits specified in Rule 45(c).”); see also, e.g., Iorio v.
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`Allianz Life Ins. Co., No. 05cv633 JLS (CAB), 2009 U.S. Dist. LEXIS 97617, at
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`*15-16 (S.D. Cal. Oct. 21, 2009) (quashing trial subpoenas served on five former-
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`employees of defendant residing in Minnesota and Florida).
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`In evaluating the subpoena’s compliance with Rule 45’s geographic
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`limitations, the relevant timeframe for the analysis is the time when the witness is
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`to appear. See Comm-Tract Corp. v. N. Telecom, 168 F.R.D. 4, 7 (D. Mass. 1996)
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`(“[T]he time frame for judging whether a witness must travel more than 100 miles
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`from his residence, place of employment, and the place where he transacts business
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`in person is the time when the witness is to appear, not the time when he is
`
`served.”). In other words, the fact that a witness may have previously resided, been
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
`
`
`
`5
`
`18-cv-00347-MDD-CAB
`
`

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`employed, or regularly transacted business in person within 100 miles of the place
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`of compliance is irrelevant. What matters is whether the witness currently meets
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`these requirements.
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`C. Undue Burden under Rule 45
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`Federal Rule of Civil Procedure 45(d)(1) provides that a party responsible
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`for issuing and serving a subpoena on a non-party must take “reasonable steps to
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`avoid imposing undue burden or expense” on the person subject to the subpoena.
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`Accordingly, the Court must quash or modify a subpoena that subjects a non-party
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`to an undue burden. See Fed. R. Civ. P. 45(d)(3)(A)(iv).
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`“Courts have broad discretion to determine whether a subpoena is unduly
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`burdensome.” Freed v. Home Depot U.S.A., Inc., No. 18cv359-BAS (LL), 2019
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`U.S. Dist. LEXIS 23763, at *6-7 (S.D. Cal. Feb. 13, 2019). “In determining
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`whether a subpoena poses an undue burden, courts weigh the burden to the
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`subpoenaed party against the value of the information to the serving party.”
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`Arminak v. Arminak & Assocs., No. CV 16-3382 JAK (SSx), 2017 U.S. Dist.
`
`LEXIS 230112, at *8 (C.D. Cal. Mar. 30, 2017) (internal quotation omitted).
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`(internal quotation omitted). “Relevance and the need of the requesting party for
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`the information are central to the inquiry of whether a Rule 45 subpoena imposes
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`an undue burden on a non-party.” United States Fire Ins. Co. v. Icicle Seafoods,
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`Inc., No. C20-401 RSM, 2021 U.S. Dist. LEXIS 153089, at *13 (W.D. Wash. Aug.
`
`13, 2021) (quashing document subpoena where defendant “failed to demonstrate
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`why that same information cannot be obtained from Insurers, who are actual
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`parties to this action”). In addition, “[c]oncern for the unwanted burden thrust upon
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`non-parties is a factor entitled to special weight in evaluating the balance of
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`competing needs, and a court may quash a subpoena where the court determines
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`that the same evidence could be obtained from a party to the litigation.” Williams
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
`
`
`
`6
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`v. Cty. of San Diego, No. 17-cv-00815-MMA (JLB), 2019 U.S. Dist. LEXIS
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`196967, at *9 (S.D. Cal. Nov. 13, 2019) (internal quotation omitted); see also
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`Arminak, 2017 U.S. Dist. LEXIS 230112 at *8 (“Concern for the unwanted burden
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`thrust upon non-parties is a factor entitled to special weight in evaluating the
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`balance of competing needs in a Rule 45 inquiry.”).
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`IV. ARGUMENT
`
`A. The Subpoena Improperly Requires Compliance Outside the
`
`Geographic Limits of Rule 45
`
`Alphatec’s Subpoena must be quashed because Mr. Lucier does not reside, is
`
`not employed, and does not regularly transact business within 100 miles of the
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`federal courthouse in San Diego.
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`1. Mr. Lucier does not reside within 100 miles of San Diego.
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`Mr. Lucier resides in Aspen, Colorado, over 700 miles (as the crow flies)
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`from San Diego.5 Lucier Decl. ¶ 9. He owns a home in Aspen, has a Colorado
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`driver’s license, and is registered to vote in Colorado. Id. ¶¶ 10, 11, 15. Mr. Lucier
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`no longer owns his former home near San Diego, nor does he own any other
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`property within 100 miles of San Diego. Id. ¶¶ 26-28. This is sufficient to establish
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`that Mr. Lucier does not reside within 100 miles of San Diego. See, e.g., Expansion
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`Capital Grp., LLC v. Patterson, No. 19-00214 (MN), 2020 U.S. Dist. LEXIS 701,
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`at *5 (D. Del. Jan. 3, 2020).
`
`2. Mr. Lucier is not employed within 100 miles of San Diego.
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`Nor is Mr. Lucier employed in or near San Diego. Although Mr. Lucier is an
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`employee of a company with offices near San Diego, Mr. Lucier works from Corza
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`Health’s office in Aspen, Colorado. Lucier Decl. ¶ 22. He does not pay income
`
`
`5 The Court may take judicial notice of geographic distances. Regents of the
`Univ. of Cal. v. Kohne, 166 F.R.D. 463, 464-65 (S.D. Cal. 1996).
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
`
`
`
`7
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`

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`taxes to California for income received from Corza Health because he is not
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`employed in California. Id. at ¶ 24. For purposes of Rule 45, it is Mr. Lucier’s
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`place of employment that matters in assessing compliance with the rule’s
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`geographic limitations, not the locations where his employer has offices or
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`conducts business. See Satija v. Permanent Gen. Assurance Corp., No. 1:13-CV-
`
`00082, 2014 U.S. Dist. LEXIS 193250, at *6-7 (N.D. Ohio Apr. 30, 2014); Greene
`
`v. Drobocky, No. 1:12-CV-00078-TBR, 2014 U.S. Dist. LEXIS 203260, at *5-6
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`(W.D. Ky. Aug. 27, 2014).
`
`In addition, Mr. Lucier’s membership on Maravai’s and Epic Sciences’
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`boards of directors is not relevant to this consideration. Board members such as
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`Mr. Lucier, who are not actively involved in the day-to-day operations of the
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`company, id. ¶¶ 35, 36, are not considered employees of the corporation. Fichman
`
`v. Media Ctr., 512 F.3d 1157, 1160 (9th Cir. 2008) (affirming district court’s
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`conclusion that board members were not “employees” of defendant).
`
`Thus, Mr. Lucier is not “employed” within 100 miles of San Diego.
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`3. Mr. Lucier does not regularly transact business within 100
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`miles of San Diego.
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`Finally, Mr. Lucier does not “regularly transact business in person” within
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`100 miles of the courthouse.
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`Although Mr. Lucier regularly travels to the San Diego area, most of these
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`trips are principally for leisure, and not to transact business. Lucier Decl. ¶ 29.
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`When he visits the Corza Health offices when in San Diego, he does so mainly to
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`greet his colleagues, not to conduct company business. Id. ¶ 29. “Courts have
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`consistently held that infrequent and sporadic business trips to an area are
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`insufficient for purposes of the subpoena rule.” Mustafa Dogan Dairy Consulting,
`
`LLC v. La Colombe Torrefaction, Inc., No. 1:17-cv-277, 2018 U.S. Dist. LEXIS
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
`
`
`
`8
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`
`

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`228934, at *6 (W.D. Mich. Sep. 7, 2018) (collecting cases, holding that a recent
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`visit to Michigan facility that was the subject of the lawsuit by the defendants’
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`corporate officers did not satisfy Rule 45 requirements); M’Baye v. N.J. Sports
`
`Prod., 246 F.R.D. 205, 207-08 (S.D.N.Y. 2007) (“Rule 45 . . . does not state with
`
`what regularity a person must transact business in a certain location to amount to a
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`place where one regularly transacts business. But traveling to an area within a 100-
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`mile radius for fourteen to eighteen days in two years is insufficient to render a
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`person amenable to a subpoena.”). Courts have also recognized that “[r]egularly
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`vacationing is not the same as regularly conducting business in person.” Expansion
`
`Capital Grp., LLC v. Patterson, No. 19-00214 (MN), 2020 U.S. Dist. LEXIS 701,
`
`at *6 (D. Del. Jan. 3, 2020).
`
`Therefore, Alphatec’s Subpoena to Mr. Lucier must be quashed because it
`
`commands compliance more than 100 miles from where Mr. Lucier resides, is
`
`employed, or regularly transacts business in person. Fed. R. Civ. P. 45(d)(3)(A)(ii).
`
`B.
`
`Alphatec’s Subpoena Is Unduly Burdensome
`
`Even if Alphatec’s Subpoena complies with Rule 45’s geographic
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`limitations, the Court must nevertheless quash the Subpoena because it imposes an
`
`undue burden on Mr. Lucier.
`
`According to the “Summary of Testimony” for Mr. Lucier in Alphatec’s trial
`
`witness list, “Mr. Lucier may be called by Alphatec to testify regarding” the
`
`following topics:
`NuVasive; NuVasive’s decision to file this litigation; actions
`NuVasive has taken against Alphatec; the spine market; NuVasive’s
`contentions regarding harm in this litigation; the design, development,
`operation, and function of the XLIF® technology, including the
`MaXcess® retractors and other embodying products; damages related
`issues; to rebut NuVasive’s allegations that Alphatec has willfully
`infringed the Asserted Patents; and the topics covered in his
`deposition.
`
`Doc. No. 355 at 45.
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION TO
`QUASH SUBPOENA
`
`
`
`9
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`

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`By Alphatec’s own description, the value of Mr. Lucier’s live testimony at
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`trial is questionable, at best. Alphatec has listed Mr. Lucier as a “may call”
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`witness, indicating that it might introduce Mr. Lucier’s testimony either through
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`live testimony or deposition transcript. See id. Moreover, the topics for which
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`Alphatec has indicated it may seek Mr. Lucier’s testimony have already been
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`found to be inadmissible or are topics on which other “will call” witnesses are as
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`well, or better, positioned to address than Mr. Lucier.
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`Taken together, and as explained below, Alphatec’s “need” to compel Mr.
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`Lucier to travel over 700 miles to testify live at trial on each of the various topics it
`
`has identified is negligible. Therefore, requiring Mr. Lucier to comply with the
`
`Subpoena would pose an undue burden. Arminak v. Arminak & Assocs., No. CV
`
`16-3382 JAK (SSx), 2017 U.S. Dist. LEXIS 230112, at *8 (C.D. Cal. Mar. 30,
`
`2017) (“In determining whether a subpoena poses an undue burden, courts weigh
`
`the burden to the subpoenaed party against the value of the information to the
`
`serving party.”).
`
`1.
`
`Testimony regarding NuVasive’s motive for suing Alphatec
`
`is inadmissible.
`
`
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`First, the Court has indicated that key topics for which Alphatec seeks
`
`Mr. Lucier’s testimony will not be admissible under the circumstances here.
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`Alphatec has indicated it may introduce Mr. Lucier’s testimony regarding:
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`“NuVasive’s decision to file this litigation,” and “actions NuVasive has taken
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`against Alphatec.” Doc. No. 355 at 45.
`
`
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`At the parties’ pretrial conference and hearing on their respective motions in
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`limine, the Court made clear that testimony regarding NuVasive’s alleged ulterior
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`motives for filing suit are ir