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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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`TRENTON D. 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)
`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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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34675 Page 2 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`SAN DIEGO DIVISION
`NUVASIVE, INC., a Delaware
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`Case No. 18-cv-00347-CAB-MDD
`corporation,
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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.
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`MOVANT GREGORY
`LUCIER’S REPLY IN SUPPORT
`OF MOTION TO QUASH OR
`MODIFY TRIAL SUBPOENA
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`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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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`18-cv-00347-MDD-CAB
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34676 Page 3 of 12
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`I.
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`INTRODUCTION
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`By Alphatec’s own admission, it has little need for Mr. Lucier’s live
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`testimony at trial. Although it initially identified Mr. Lucier as a witness on a broad
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`array of topics, it now identifies only two potential rebuttal topis for which it “may”
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`need his testimony—both of which it could address through Mr. Lucier’s deposition
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`testimony. Given that Mr. Lucier is no longer affiliated with NuVasive, and that he
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`resides over 700 miles away from the Court, in Aspen, Colorado, the Court should
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`find that requiring him to travel to California presents an undue burden.
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`Alphatec makes much of Mr. Lucier’s recent travel to San Diego, but even if
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`Alphatec prevails on showing Mr. Lucier’s travel places him within the geographic
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`limit of the Court’s subpoena power—a close question under the case law—it
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`cannot overcome the fact that traveling to California for the possibility of presenting
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`live testimony would nevertheless impose an undue burden on a third-party.
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`Specifically, of the two discrete rebuttal topics Alphatec has identified, neither
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`presents a situation where Mr. Lucier possesses unique, relevant testimony.
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`Regarding one, assignor estoppel, Alphatec has identified no specific relevant
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`information that Mr. Lucier possesses on the subject (and in any event, NuVasive
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`does not intend to pursue this defense at trial, which the Court dismissed on
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`summary judgment almost two years ago). On the other topic, surgeon relationships,
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`while Mr. Lucier possesses some knowledge, he is not the only—or even the best—
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`NuVasive witness to address this at trial. At trial, NuVasive will call Paul
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`McClintock, NuVasive’s Vice President of Global Clinical Customer Engagement,
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`whom Alphatec deposed at length on the subject in December 2021. As Alphatec is
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`aware, Mr. McClintock possesses information concerning both his own first-hand
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`experience cultivating surgeon relationships at NuVasive, as well as the “lock down
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`surgeons” email chain Alphatec highlights in its brief (which Mr. Lucier sent to Mr.
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`McClintock). In addition, Alphatec has designated portions of Mr. Lucier’s
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34677 Page 4 of 12
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`deposition testimony directly addressing these topics as well. Because Alphatec
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`cannot demonstrate a unique need for Mr. Lucier’s live testimony on this single
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`remaining topic, the Court should grant Mr. Lucier’s motion to quash Alphatec’s
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`trial subpoena.
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`II. ARGUMENT
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`A. Geographic Limit
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`Federal Rule of Civil Procedure 45(c)(1)(A) provides that a subpoena may
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`command a person to attend a trial only “within 100 miles of where the person
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`resides, is employed, or regularly transacts business in person.” Alphatec argues that
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`it satisfies the geographic limitation in Rule 45 because Mr. Lucier “regularly
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`transacts business in person” in San Diego due to his travel to the area over the last
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`two years. Alphatec’s argument improperly conflates Mr. Lucier’s business and
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`personal travel. When Mr. Lucier’s business travel is separated out from his leisure
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`travel, as the rule and case law require, he is not within the geographic limits.
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`Both parties agree Rule 45 is to be read literally. See Doc. No. 383 (Alphatec
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`Resp.) at 9 (quoting Regents of the Univ. of Cal. v. Kohne, 166 F.R.D. 463, 464
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`(S.D. Cal. 1996)). And the rule is clear that only travel relevant to this analysis is
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`travel to “transact business in person.” Fed. R. Civ. P. 45(c)(1)(A). As a result,
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`courts have noted that “[r]egularly vacationing is not the same as regularly
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`conducting business in person.” Expansion Capital Grp., LLC v. Patterson, No. 19-
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`00214 (MN), 2020 U.S. Dist. LEXIS 701, at *5 (D. Del. Jan. 3, 2020). To hold
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`otherwise would “countervail the entire purpose of Rule 45(c)’s restrictions.” Id. at
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`*7 (noting that considering those contacts would yield the absurd result that “any
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`person who owns any property in Delaware or regularly drives through Delaware
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`and stops for gas, a coffee, and an ATM visit at a rest stop could be deposed here”).1
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`1 While Alphatec attempts to distinguish Expansion Capital factually, the
`petitioner’s contacts within the geographic range in that case were arguably more
`substantial than Mr. Lucier’s to San Diego: the petitioner in Expansion Capital
`(continued...)
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34678 Page 5 of 12
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`Rather than separate out Mr. Lucier’s work and personal travel, however,
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`Alphatec lumps it all together, attempting to gild the proverbial lily. See Doc. No.
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`383 at 5, 10 (highlighting forty trips in the last two years, estimating Mr. Lucier
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`spent an average of sixty days per year in San Diego each of those years). But
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`Alphatec admits that only nine of the forty trips were paid for by Mr. Lucier’s
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`employer, and that Mr. Lucier characterizes his travel to San Diego as “principally
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`for leisure.” Doc. No. 383 at 10-11. Indeed, the two trips Alphatec calls out
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`specifically in its response—Mr. Lucier’s recent vacation with his family over the
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`Christmas holiday and a wedding he attended in San Diego this month—illustrate
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`the personal nature of much of Mr. Lucier’s travel to San Diego.
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`When Mr. Lucier’s business travel is compared to the case law, the argument
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`is close. Notably, Alphatec cites only one case in which a court found travel rose to
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`the level of “regularly conducting business.” See Halliburton Energy Servs. v. M-I,
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`LLC, No. H-06-mc-00053, 2006 U.S. Dist. LEXIS 66374, at *4-5 (S.D. Tex. Sep.
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`15, 2006). In Halliburton, Southern District of Texas found that the defendant could
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`depose an individual who possessed necessary information—the inventor of a patent
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`in issue in the litigation—who had traveled to Houston an average of 40 days per
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`year over the course of ten years. Id. But even there, the Court recognized the
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`burden to the inventor, noting with approval that the defendant had agreed to either
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`pay for the inventor’s travel expenses, depose the inventor in Germany, or combine
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`the deposition with inventor’s regularly scheduled business trips to Houston. Id. at
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`*5-6.
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`Using Alphatec’s own math, Mr. Lucier’s business travel (nine trips in two
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`years) is lower than the travel in Halliburton. And it more closely resembles cases in
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`owned a home in Delaware, resided in that home for a substantial amount of time
`while his residence in Puerto Rico was being repaired after “sustaining hurricane
`damage,” had registered two vehicles in Delaware, and owned several business
`entities in Delaware. 2020 U.S. Dist. LEXIS 701 at *3-4.
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34679 Page 6 of 12
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`which courts have found individuals were not “regularly” transacting business
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`within the geographical limit. See, e.g., Perez v. Progenics Pharm., Inc., No. 10-cv-
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`08278 (LAP), 2015 U.S. Dist. LEXIS 83557, at (S.D.N.Y. June 24, 2015) (director
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`of the defendant who attended quarterly meetings at the defendant’s New York
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`headquarters, did not “regularly transact business” in New York); M’Baye v. N.J.
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`Sports Prod., 246 F.R.D. 205, 207-08 (S.D.N.Y. 2007) (five business trips “for
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`fourteen to eighteen days in two years is insufficient to render a person amenable to
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`a subpoena”); see also Dietz v. Spangenberg, No. 11-2600 ADM/JJG, 2014 U.S.
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`Dist. LEXIS 17046, at *12-13 (D. Minn. Feb. 11, 2014) (defendant’s corporate
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`officer’s travel to Minnesota three times in one year did not constitute “regularly
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`conducting business” in the state).
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`Based on the relevant case law, the Court should conclude Mr. Lucier’s
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`limited business travel to San Diego does not satisfy Rule 45’s geographic limits.
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`B. Undue Burden
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`Even if the Court finds that Mr. Lucier’s travel places him within the
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`geographic limit of Rule 45, however, the Court must nevertheless quash Alphatec’s
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`trial subpoena for the independent reason that it imposes an undue burden on a third
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`party. When the Court weighs the burden to Mr. Lucier of traveling to California
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`against the limited value of Mr. Lucier’s live testimony, as the case law requires, it
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`is clear the subpoena must be quashed.
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`Rule 45 requires Alphatec to take “reasonable steps to avoid imposing undue
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`burden or expense” on Mr. Lucier, while also requiring the Court to quash or modify
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`a subpoena that subjects a non-party to an undue burden. Fed. R. Civ. P. 45(d)(1).
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`Alphatec is highly critical of cases Mr. Lucier cites that discuss discovery
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`subpoenas, claiming that trial subpoenas “involve an entirely different balance of
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`considerations.” Doc. No. 383 at 12. But Alphatec does not identify what those
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`different considerations are. In actuality, both types of subpoenas require the Court
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`to balance the burden to the subpoena recipient against the value of the information
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`sought. See, e.g., Cobb v. Rodriguez, No. 3:13-cv-01353-BEN-JMA, 2016 U.S. Dist.
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`LEXIS 102823, at *2-3 (S.D. Cal. Aug. 2, 2016) (discussing trial subpoenas: “An
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`evaluation of undue burden requires the court to weigh the burden to the subpoenaed
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`party against the value of the information to the serving party.”). Likewise, cases
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`evaluating trial subpoenas expressly recognize courts’ heightened sensitivity to
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`burdens placed on third parties. See SBP LLLP v. Hoffman Constr. Co. of Am., No.
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`1:19-cv-00266-DCN, 2021 U.S. Dist. LEXIS 138780, at *7-9 (D. Idaho July 23,
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`2021) (discussing trial subpoenas: “[T]he value and applicability of subpoenas have
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`their limits. The burden placed on third parties is often much greater than the value
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`of any production. That is why it is the policy of this Court not to burden third
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`parties [with subpoenas] unless absolutely necessary.”). Indeed, Alphatec’s own
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`case addressing trial subpoenas explains as much. See DataQuill Ltd. v. Kyocera
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`Wireless Corp., No. 01cv2302-B (BLM), 2005 U.S. Dist. LEXIS 52120, at *3 (S.D.
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`Cal. Oct. 25, 2005) (“Illustratively, it might be unduly burdensome to compel an
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`adversary to attend trial as a witness if the adversary is known to have no personal
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`knowledge of matters in dispute, especially so if the adversary would be required to
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`incur substantial travel burdens.”). And DataQuill’s discussion of the differences
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`between discovery subpoenas and trial subpoenas relates primarily to its conclusion
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`that the Apex Doctrine is inapplicable to trial subpoenas—an issue Mr. Lucier did
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`not raise. Id. at *5-6 (“[T]he ‘apex doctrine’ only has been applied to discovery, not
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`trial.”).
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`Applying the relevant standards, the value of Mr. Lucier’s live testimony does
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`not outweigh the burden imposed by his travel to trial. With regard to the burden to
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`Mr. Lucier, Alphatec does not dispute that Mr. Lucier resides in Aspen, Colorado
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`and will need to take time out of his schedule to travel over 700 miles to potentially
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`present live testimony at trial. The fact that Mr. Lucier’s role as CEO of Corza
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`Health requires him to travel frequently all over the country does not somehow
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`lessen the distance or scheduling burden imposed by Alphatec’s trial subpoena. As
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`Mr. Lucier noted, he must be in Colorado March 1-4 and again by March 10, Doc.
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`No. 373-2 at 7, leaving only a narrow window for potential travel from Aspen to
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`San Diego.
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`Weighed against this is Alphatec’s need for Mr. Lucier’s live testimony. But
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`on this front Alphatec now identifies only two narrow issues for which it anticipates
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`it “may” need Mr. Lucier’s testimony for “rebuttal.” Neither topic presents an area
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`for which Mr. Lucier would provide unique, relevant testimony, and in any event,
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`Alphatec may use the portions of Mr. Lucier’s deposition that it has already
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`designated on these same topics.
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`1. Assignor Estoppel
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`Alphatec states it may need Mr. Lucier to testify as a rebuttal witness if
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`“NuVasive . . . falsely suggest[s] that Mr. Miles was working against NuVasive’s
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`interests while still employed there,” specifically, through cross-examination of Mr.
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`Miles concerning his “discussions with private equity groups, his personal
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`investments, and his employment negotiations with Alphatec.” Doc. No. 383 at 15.
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`Alphatec also says that “Mr. Lucier is the only one identified as knowledgeable
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`about Mr. Miles’s role and responsibilities at NuVasive and his departure from the
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`company.” Id. at 13.
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`As a preliminary matter, this evidence relates to NuVasive’s assignor estoppel
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`defense, which the Court dismissed roughly two years ago at summary judgment.
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`Doc. No. 282. NuVasive has no intention of presenting evidence regarding this
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`dismissed defense during trial.2 Furthermore, Alphatec does not suggest—nor could
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`2 As Alphatec alludes, counsel for NuVasive and Mr. Lucier sought to reach an
`agreement with Alphatec during the meet-and-confer process related to
`Mr. Lucier’s subpoena that would alleviate Alphatec’s concerns and avoid motion
`practice. At the end of the day, however, NuVasive was unable to agree to the
`(continued...)
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`it—that Mr. Lucier has any direct, personal knowledge regarding Mr. Miles’s
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`discussions with Carlsbad Growth Partners to re-capitalize Alphatec in Spring 2016.
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`See, e.g., Doc. No. 261 at 2-4. Nor does Alphatec allege Mr. Lucier has personal
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`knowledge concerning Mr. Miles’s investment of $500,000 in Alphatec in March
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`2017. See id. at 4. Finally, Alphatec does not allege Mr. Lucier has personal
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`knowledge concerning Mr. Miles’s employment negotiations with Alphatec while
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`still at NuVasive. Instead, Alphatec states only that, if NuVasive cross-examines
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`Mr. Miles on these topics, “Mr. Lucier’s testimony on Mr. Miles’s responsibilities at
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`NuVasive and his departure from the company will become even more relevant.”
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`Doc. No. 383 at 15. But missing from this assertion is any explanation of what that
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`testimony could possibly be, or why Mr. Lucier is necessary to establish it,
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`especially when Mr. Miles himself could explain Mr. Miles’s responsibilities at
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`NuVasive prior to his departure. This vague assertion is plainly insufficient to
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`necessitate Mr. Lucier’s travel to California to present live testimony.
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`2. Surgeon Relationships
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`Alphatec also argues that it “may” need Lucier’s testimony to rebut
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`NuVasive’s claims for lost profits, specifically relating to Mr. Miles’s relationships
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`with physicians. The parties agree that the Court has ruled in limine to allow some
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`evidence on this topic. The parties further agree that Mr. Lucier possesses relevant
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`information. But Mr. Lucier disagrees that he is the only person at NuVasive who
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`can provide this information, or even the best person.
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`As discussed, NuVasive will present the testimony of Paul McClintock,
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`NuVasive’s Vice President of Global Clinical Customer Engagement at trial. During
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`its recent deposition of him in December 2022, Alphatec questioned
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`Mr. McClintock extensively regarding NuVasive’s claim for lost profits, NuVasive’s
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`myriad topics Alphatec sought to remove from trial in exchange for its withdrawal
`of Mr. Lucier’s subpoena.
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`REPLY IN SUPPORT OF MOTION
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`surgeon relations, and Mr. McClintock’s own extensive personal experience
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`working with physicians at NuVasive and elsewhere, as well as his participation in
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`discussions at NuVasive surrounding Mr. Miles’ departure. Ex. 4 to Tanner Decl.3
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`(McClintock Dep.) at 34:8-37:3, 47:21-52:25, 66:16-68:8, 81:2-88:6, 95:4-95:21,
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`103:19-119:21. As Alphatec is aware, Mr. McClintock was part of the email
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`discussion concerning “lock[ing] down surgeons” that Alphatec highlights in its
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`response. See Doc. No. 383 at 14 (citing Doc. No. 253-3 (G. Lucier email to P.
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`McClintock and others re “lock[ing] down” surgeons)); Ex. 4 (McClintock Dep.) at
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`88:2-6 (introducing “lock down” email as Deposition Exhibit 4); 111:10-116:17
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`(discussing what it means to “lock down surgeons”). Thus, any testimony Mr.
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`Lucier may have about NuVasive’s surgeon relations as they relate to its claim for
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`lost profits would be entirely cumulative, at best.
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`In any event, Alphatec was able to fully examine Mr. Lucier on these topics at
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`his deposition, and has designated portions of that testimony relevant to surgeon
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`relationships and the “lock down” email. See Doc. 373-3 (Lucier Dep.) at 42:6-11,
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`68:6-15, 96:15-25, 104:10-24, 107:20-110:8, 111:18-116:23, 128:8-130:17, 131:7-
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`133:15. While Alphatec argues live testimony is “preferred,” here again it overplays
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`its hand. Its main case, United States v. Yida, 498 F.3d 945 (9th Cir. 2007), concerns
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`Confrontation Clause issues in a criminal trial not relevant here, as well as concerns
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`that the jury have “the opportunity to observe the demeanor of the witness while
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`testifying,” that are lessened or eliminated here, where the deposition was
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`videotaped. Id. at 950. In any event, even allowing a preference for live testimony in
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`the abstract, given the specific facts here—including the closeness of the question
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`on the Court’s subpoena power, Alphatec’s limited need for Mr. Lucier’s testimony,
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`and courts’ sensitivity to burdening third parties—the Court should find Mr.
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`3 “Tanner Decl.” refers to the Declaration of Trent Tanner, submitted
`concurrently herewith.
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`8
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`18-cv-00347-MDD-CAB
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34684 Page 11 of 12
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`Lucier’s deposition testimony on these issues an adequate substitute to his live
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`testimony. As a result, the Court should quash Alphatec’s trial subpoena to Mr.
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`Lucier.
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`III. CONCLUSION
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`Mr. Lucier respectfully requests the Court quash Alphatec’s trial subpoena to
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`Mr. Lucier.
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`Dated: February 25, 2022
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`HILGERS GRABEN PLLC
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`By: /s/ Trenton D. Tanner
`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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`TRENTON D. 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)
`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 Greg Lucier.
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`Case 3:18-cv-00347-CAB-MDD Document 384 Filed 02/25/22 PageID.34685 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a true and correct copy of the foregoing
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`document has been served on this date to all current and/or opposing counsel of
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`record, if any to date, who are deemed to have consented to electronic service via
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`the Court’s CM/ECF system per Civ.L.R. 5.4(d). Any other counsel of record will
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`be served by electronic mail, facsimile and/or overnight delivery.
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`I declare under penalty of perjury under the Laws of the United States of
`America that the above is true and correct. Executed this 25th day of February, 2022,
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`at San Diego, California.
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`By: /s/ Trenton D. Tanner
`Trenton D. Tanner
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`REPLY IN SUPPORT OF MOTION
`TO QUASH TRIAL SUBPOENA
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`10
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`18-cv-00347-MDD-CAB
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