`
`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 1 of 13
`
`DARRYL J. HOROWITT #100898
`SHERRIE M. FLYNN #240215
`COLEMAN & HOROWITT, LLP
`Attorneys at Law
`499 West Shaw, Suite 116
`Fresno, California 93704
`Telephone: (559) 248-4820
`Facsimile: (559) 248-4830
`
`Attorneys for Nonparty,
`GUARDIAN ALLIANCE TECHNOLOGIES, INC.
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`SACRAMENTO DIVISION
`
`
`In the Matter of Subpoena to
`GUARDIAN ALLIANCE TECHNOLOGIES,
`INC.,
`
`
`
`
`
`Nonparty,
`
`MILLER MENDEL, INC.; and TYLER
`MILLER,
`
`
`
`v.
`
`
`
`THE CITY OF OKLAHOMA CITY,
`
`
`
`
`
`Defendant.
`
`
`Plaintiffs,
`
`
`
`
`
`Case No. 2:20-AT-00083
`
`NONPARTY GUARDIAN ALLIANCE
`TECHNOLOGIES INC’S MOTION TO
`QUASH THE GUARDIAN SUBPOENA
`AND BRIEF IN SUPPORT
`
`(Subpoena issued from U.S. District Court for
`the Western District of Oklahoma, Miller
`Mendel, Inc. et al. v. The City of Oklahoma
`City, No. CIV-18-990-JWD)
`
`
`
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`Guardian Alliance Technologies, Inc., pursuant to Fed. R. Civ. P. 45(d)(3), moves to quash
`
`the nonparty subpoena (the “Guardian Subpoena”) served upon it on January 7, 2020 by Tyler
`Miller and Miller Mendel, Inc. (collectively “Miller Mendel”) and noting compliance for January
`24, 2020 at LDA and Associates dba Legal Document Assistants, 3550 Watt Avenue, Suite 140,
`Sacramento, CA 95821. The Guardian Subpoena was served pursuant to a patent infringement
`lawsuit in the United States District Court for the Western District of Oklahoma, captioned as Miller
`Mendel, Inc. et al. v. The City of Oklahoma City, Case No. CIV-18-990-JWD. As the Guardian
`
`
`
`
`
`MOTION TO QUASH GUARDIAN SUBPOENA
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 1 of 13
`
`

`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 2 of 13
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`Subpoena is unduly burdensome, overly broad, seeks irrelevant information not proportional to the
`needs of the case, and seeks Guardian’s trade secret, proprietary, and confidential information
`without any account for the proper handling of such information, the Court should grant this motion
`to quash the Guardian Subpoena.
`
`The Guardian Subpoena, Guardian’s objections thereto, and this potential Motion were
`discussed with opposing counsel on December 30, 2019.
`
`
`DATED: January 24, 2020
`
`
`
`
`
`
`
`COLEMAN & HOROWITT, LLP
`
`
`
`
`
`
`
`
`
`By:
`
`
`/s/ Sherrie M. Flynn
`DARRYL J HOROWITT
`SHERRIE M. FLYNN
`Attorneys for Nonparty
`GUARDIAN ALLICANCE
`TECHNOLOGIES, INC.
`
`
`
`
`
`- 2 -
`
`MOTION TO QUASH GUARDIAN
`SUBPOENA
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 2 of 13
`
`

`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 3 of 13
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION AND BACKGROUND
`The Guardian Subpoena, attached hereto as Exhibit 1, was served pursuant to a patent
`infringement lawsuit in the United States District Court for the Western District of Oklahoma,
`captioned as Miller Mendel, Inc. et al. v. The City of Oklahoma City, Case No. CIV-18-990-JWD,
`in which Miller Mendel accuses Guardian’s customer, the City of Oklahoma City (“OKC”), of
`infringing U.S. Patent No. 10,043,188 by virtue of OKC’s use of Guardian Alliance Technologies’
`background investigation software platform. Miller Mendel did not originally include Guardian as
`a defendant in that suit, but is presently seeking leave of court to add Guardian as a defendant.
`The Guardian Subpoena should be quashed because it seeks Guardian’s fundamental
`business information relating to Guardian’s background investigation platform, Guardian’s
`financial information, Guardian’s market strategy, as well as Guardian’s overarching business
`plans. The scope of what Miller Mendel asks for is breathtaking: many of Miller Mendel’s requests
`would be improper, even for a party defendant, which is the point, as Miller Mendel purposefully
`chose not to name Guardian as a defendant in the underlying lawsuit. In order to do so, Miller
`Mendel would have been required to sue Guardian for patent infringement in the U.S. District Court
`for the Eastern District of California—the only proper venue for Guardian under controlling
`precedent. Guardian is a nonparty to this litigation and, as a nonparty, the scope of permissible
`discovery Miller Mendel is entitled to obtain from Guardian is significantly narrowed and
`prescribed versus that of a party litigant.
`From a facial reading of the Guardian Subpoena, it is apparent that Miller Mendel is
`attempting to quite brazenly flout the discovery rules for nonparty witnesses. The Guardian
`Subpoena demands production of numerous open-ended categories of documents and information
`without any restriction in temporal scope. As but one example of their overreach, Miller Mendel
`demands that Guardian produce all versions of its source code and supporting documentation—
`including versions of Guardian’s software that were developed prior to the ’188 Patent’s issuance.
`It should also be noted that Miller Mendel demanded this information without a cursory mention
`of any proper procedural safeguards to maintain the confidential and highly proprietary nature of
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`- 3 -
`
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 3 of 13
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`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 4 of 13
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`Guardian’s source code. If its request for source code wasn’t enough, Miller Mendel further
`demands that Guardian produce its in-depth financial, marketing, and strategic business plans—
`types of information that have absolutely nothing to do with the claims of the present case. If
`Guardian were a party to this litigation, relief from Miller Mendel’s subpoena would be proper
`since it is nothing more than a fishing expedition.
`Regardless of any purported “litigation strategy” in originally omitting Guardian from this
`lawsuit, Miller Mendel cannot now creatively attempt to misuse a Rule 45 subpoena in order to
`circumvent the scope of nonparty discovery. As the Guardian Subpoena is unduly burdensome,
`overly broad, seeks irrelevant information not proportional to the needs of the case, and seeks
`Guardian’s trade secret, proprietary, and confidential information without any account for the
`proper handling of such information, the Court should grant this motion to quash the Guardian
`Subpoena.
`
`A.
`
`DISCUSSION
`STANDARD GOVERNING MOTIONS TO QUASH NONPARTY SUBPOENAS
`Fed. R. Civ. P. 26(b)(1) provides that “parties may obtain discovery regarding any
`nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs
`of the case, considering the importance of the issues at stake in the action, the amount in
`controversy, the parties’ relative access to relevant information, the parties’ resources, the
`importance of the discovery in resolving the issues, and whether the burden or expense of the
`proposed discovery outweighs its likely benefit.”
`Fed. R. Civ. P. 45, in turn, governs discovery of nonparties by subpoena. Fed. R. Civ. P.
`45(d) governs motions for protective orders and motions to quash subpoenas directed to nonparties,
`requires a party or attorney responsible for issuing and serving a subpoena to take reasonable steps
`to avoid imposing undue burden on the person subject to the subpoena, and mandates that a district
`court shall quash or modify such a subpoena if it “subjects a person to undue burden.” Fed. R. Civ.
`P. 45(d)(1)-(3). The permissible scope of discovery under a Rule 45 subpoena is the same as the
`scope of discovery under Fed. R. Civ. P. 26 and 34. Fed. R. Civ. P. 45 Advisory Comm.’s Note
`
`
`
`
`
`- 4 -
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 4 of 13
`
`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 5 of 13
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`(1970) (“[T]he scope of discovery through a subpoena is the same as that applicable to Rule 34 and
`other discovery rules”).
`A court must quash or modify a subpoena that:
`Fails to allow a reasonable time to comply;
`(i)
`(ii)
`Requires a person to comply beyond the geographical limits specified in Rule 45(c);
`
`
`
`
`
`(iii) Requires disclosure of privileged or other protected matter, if no exception or waiver
`applies; or
`
`(iv)
`
`Subjects a person to undue burden.
`
`
`Fed. R. Civ. P. 45(d)(3)(A)(i–iv). A court may quash or modify a subpoena if it requires:
`
`
`(i)
`
`(ii)
`
`Disclosing a trade secret or other confidential research, development, or commercial
`information; or
`
`Disclosing an unretained expert’s opinion or information that does not describe
`specific occurrences in dispute and results from the expert’s study that was not
`requested by a party.
`
`
`
`Fed. R. Civ. P. 45(d)(3)(B)(i–ii).
`Whether a subpoena imposes an undue burden on a witness is a case-specific inquiry that
`turns on “such factors as relevance, the need of the party for the documents, the breadth of the
`document request, the time period covered by it, the particularity with which the documents are
`described and the burden imposed.” Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter
`of Haverstraw, Inc., 211 F.R.D. 658, 662 (D. Kan. 2003) (quoting Concord Boat Corp. v.
`Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y. 1996)). The courts are required to balance the need
`for the requested discovery against the burden imposed on the person ordered to produce
`documents, and the status of a person as a nonparty is a factor that weighs against disclosure. Id. at
`662-63 (citing Katz v. Batavia Marine & Sporting Supplies, 984 F.2d 422, 424 (Fed. Cir. 1993)).
`The overwhelming weight of authority agrees that status as a nonparty is a significant factor
`in determining whether responding to a subpoena poses an undue burden. See, e.g., Cusumano v.
`Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (cautioning against the “unwanted burden thrust
`upon non-parties” by overly intrusive or overbroad discovery requests and recognizing that non-
`
`
`
`
`
`- 5 -
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 5 of 13
`
`

`

`
`
`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 6 of 13
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`parties “have a different set of expectations”); American Standard Inc. v. Pfizer Inc., 828 F.2d 734,
`738 (Fed.Cir.1987) (affirming district court's restriction of discovery where nonparty status
`“weigh[ed] against disclosure”); United States v. Amerigroup Illinois, Inc., No. 02-cv-6074, 2005
`WL 3111972, at *4-5 (N.D. Ill. Oct. 21, 2005) (giving nonparty status “special weight”); Solarex
`Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 179 (E.D.N.Y.1988) (nonparty status a significant factor
`in determining whether discovery is unduly burdensome); and Richards of Rockford, Inc. v. Pacific
`Gas & Electric Co., 71 F.R.D. 388, 390 (N.D.Cal.1976).
`
`
`THIS COURT SHOULD QUASH THE GUARDIAN SUBPOENA BECAUSE IT
`IMPOSES AN UNDUE BURDEN ON GUARDIAN AND REQUESTS THE
`DISCLOSURE OF TRADE SECRET, DEVELOPMENT, COMMERCIAL, AND
`OTHER CONFIDENTIAL INFORMATION
`
`B.
`
`
`
`A cursory review of the twenty-five document requests included in the Guardian Subpoena
`should make clear that the Guardian Subpoena is an overt attempt by Miller Mendel to take
`oppressive discovery from nonparty Guardian. Miller Mendel makes these overly broad and unduly
`burdensome requests even though they originally elected to not sue Guardian directly for patent
`infringement. Miller Mendel is presently seeking leave from the Western District of Oklahoma to
`add Guardian as a party to the patent infringement litigation, but that request is currently pending.
`Whatever the reason for not originally suing Guardian, Miller Mendel cannot now use a Rule 45
`subpoena to attempt to obtain discovery from Guardian that it arguably would not be entitled even
`if Guardian was a party. The twenty-five document requests in the Guardian Subpoena are overly
`broad, unduly burdensome, irrelevant and not proportional to the needs of the case, and seek trade
`secret, proprietary, and confidential information, including Guardian’s source code.
`
`i. Most—if not all—of the document requests included in the Guardian Subpoena
`are overly broad and/or unduly burdensome.
`
`The Court should quash the Guardian Subpoena because nearly all of its twenty-five
`document requests are overly broad and/or unduly burdensome. Short of reproducing all twenty-
`five of those requests here, a sample will adequately demonstrate the staggering breadth of the
`Guardian Subpoena. For example, Miller Mendel has requested that nonparty Guardian produce:
`
`
`
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`- 6 -
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 6 of 13
`
`

`

`
`
`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 7 of 13
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`
`
`1)
`
`2)
`3)
`4)
`5)
`6)
`7)
`8)
`
`9)
`
`All documents and electronically stored information, including but not limited to
`paper files, e-mails, text messages, electronic files, that mention Miller Mendel, Inc.;
`
`All documents . . . that mention the eSoph product of Miller Mendel, Inc.;
`All documents . . . that mention Tyler Miller;
`All documents . . . that mention the entity known as Background Solutions;
`All documents . . . that mention the '188 Patent;
`For each version of the GAT platform, all source code and executable code;
`All software commits for the GAT platform;
`All developer notes and working papers for the GAT platform;
`
`All communications to investors that contain any statements concerning the
`GAT platform or the eSoph product of Miller Mendel, Inc.;
`
`
`These are just a few of Miller Mendel’s overly broad requests, but the selected examples show their
`open-ended and burdensome nature. None of Miller Mendel’s twenty-five requests contain a time
`or date limitation. For instance, Request No. 6 asks “[f]or each version of the GAT platform, all
`source code and executable code” without providing a date limitation. The absence of such a
`limitation renders this request facially overly broad. Considering, though, that the patent-in-suit in
`this case did not issue until August 2018, this request that seeks “all versions” of the GAT platform,
`which date to well before 2018, can only mean that Miller Mendel is looking to obtain information
`on a competitor’s product that has nothing to do with their patent infringement claims against The
`City of Oklahoma City.
`Moreover, each one of the above requests (and many others not incorporated here) ask that
`Guardian produce “all” documents, communications, etc. relating to a particular topic. This may
`be acceptable if paired with a narrow topic or subject matter. However, Miller Mendel requests
`“all” documents and electronically-stored information. relating to such broad topics as “Miller
`Mendel,” “eSOPH,” “Tyler Miller,” and “Background Solutions.” All four of these topic areas
`comprise companies and products with which Guardian has coexisted in the marketplace for a
`number of years. A search of Guardian’s electronically-stored information would likely reveal
`tens—if not hundreds—of thousands of documents that Guardian would have to sort through,
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`
`
`- 7 -
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 7 of 13
`
`

`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 8 of 13
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`review, and determine the proper confidentiality designation of those documents, all of which
`would cost in the hundreds of hours in manpower and likely thousands of dollars in legal fees. As
`one district court in the Ninth Circuit has stated: “[a] subpoena should be tailored with some
`particularity to the relevant information that the requesting party hopes to gain.” Rollins v. Traylor
`Bros., Inc., No. C14-1414-JCC, 2017 WL 1756576, at *2 (W.D. Wash. May 5, 2017) (citing
`Barrington v. Montage IT, Inc., No. 07-61304-CIV, 2007 WL 4370647, at *1, 3–6 (S.D. Fla. Dec.
`10, 2007) (quashing a subpoena as “overly broad” when it requested “any and all documents …
`relating to the employment” of the plaintiffs, “including but not limited to” specific named files,
`and included the plaintiffs’ social security numbers and date of birth).
`Most confoundingly, Miller Mendel asks for all versions of Guardian’s “source code and
`executable code.” Beyond the simple fact that Guardian’s source code has little relevance to this
`case; is a trade secret; and one of Guardian’s most valuable assets, a request this broad would likely
`not be permissible even if Guardian were a party. Miller Mendel has not yet presented any argument
`that access to Guardian’s source code is necessary to prove their infringement case against the City
`of Oklahoma City. Miller Mendel has presently requested an inspection of “OKC’s implementation
`of the GAT platform,” and that inspection is currently scheduled for the first week of February
`2020. The parties have been working to agree on the conditions and safeguards that need to be in
`place for that inspection. At a minimum, until that inspection is complete, Miller Mendel’s request
`for Guardian’s source code is premature.
`Here, Guardian’s status as a nonparty is a significant additional factor weighing in favor of
`a finding that these requests are unduly burdensome. Miller Mendel made the conscious decision
`not to include Guardian as a party. That decision comes with consequences, one of which is the
`possibility that Guardian’s status as a nonparty severely limits the scope of permissible discovery.
`
`ii.
`
`This litigation arises from Guardian’s licensing of its software to the The City of Oklahoma
`City. Guardian’s sales calls, sales, and/or licenses to any other party have no relevance in the
`
`The Guardian Subpoena seeks numerous documents and things that are
`irrelevant and/or not proportional to the needs of this case.
`
`
`
`
`
`- 8 -
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 8 of 13
`
`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 9 of 13
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`underlying litigation. Similar to the overly broad and unduly burdensome requests, the Guardian
`Subpoena seeks documents from Guardian that ask for:
`
`13) All presentations made by any agent or employee of GAT to any third party,
`including, but not limited to, investors, potential investors, bankers, and/or
`financiers;
`14) All sales of the GAT platform to any entity;
`15) All licenses of the GAT platform to any entity;
`
`16) All financial documents showing the revenue, licensing rate, and expenses
`for all sales or licenses of the GAT platform to any entity.
`
`17) All records, documents and things related to market research for the GAT
`platform Product which list, identify or refer to competing products, or likely
`or potential competing products, to the GAT platform;
`
`
`
`18) All records, documents and things related to costs of sales of your GAT
`platform;
`
`The above requests seek information that has absolutely no relevance to this action or Miller
`Mendel’s claims. These requests have no bearing on whether Miller Mendel can prove their patent
`infringement case against OKC. The only information that could be gleaned by Miller Mendel from
`Guardian’s non-OKC contracts is who and where to sue next.
`This point is illustrated in American Standard, Inc., v. Pfizer, Inc., where the Federal Circuit
`affirmed the district court’s denial of discovery into the sales figures of a nonparty alleged infringer,
`which, according to the patentee, would support a validity argument with evidence of the
`invention’s commercial success. 828 F.2d 74 (Fed. Cir. 1987). The Federal Circuit concluded that
`“nonparty sales were not due to the merits of the invention inasmuch as many factors unrelated to
`the merits of the invention and, thus, the nonparty sales were not relevant.” Id. at 742.
`Again, Guardian is a nonparty to this action. “While discovery is a valuable right and should
`not be unnecessarily restricted …, the ‘necessary’ restriction may be broader when a nonparty is a
`target of the discovery.” Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980).
`As one district court in the 9th Circuit recently stated: “[d]isclosure of nonparty financial records
`merits a heightened review.” AmSurg Holdings Incporporated v. Anireddy, No. CV-17-04181-
`
`
`
`
`
`- 9 -
`
`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 9 of 13
`
`

`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 10 of 13
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`The Guardian Subpoena seeks Guardian’s trade secret, confidential and
`proprietary information, including Guardian’s source code.
`
`PHX-SMB, 2020 WL 209927, at *4 (D. Ariz. Jan. 14, 2020) (citing Dart Indus., Co., 649 F.2d at
`649 (“[M]ore appropriate nomenclature is ‘nonparty’ discovery, non ‘third-party’ discovery, as ‘the
`word nonparty serves as a constant reminder of the reasons for the limitations that characterize
`third-party discovery’”) (internal citations omitted)).
`In order for Miller Mendel to obtain the requested information from Guardian, Miller
`Mendel must demonstrate why its need for the discovery outweighs Guardian’s interest in
`nondisclosure. R. Prasad Indus. v. Flat Iron Envtl. Solutions Corp., No. CV-12-08261-PCT-JAT,
`2014 WL 2804276, at *2 (D. Ariz. June 20, 2014). It is difficult to fathom how the above requests—
`and several others in the Guardian Subpoena—will assist Miller Mendel or OKC in proving or
`disproving their patent infringement claims and defenses. Accordingly, this Court should quash the
`Guardian Subpoena because it seeks documents and information non proportional to the needs of
`the case, particularly considering Guardian’s status as a nonparty.
`
`iii.
`
`Fed. R. Civ. P. 45(d)(3)(B)(i) permits a district court to quash or modify a subpoena if it
`requires “disclosing a trade secret or other confidential research, development, or commercial
`information.” Referenced above, the Guardian Subpoena brazenly requests Guardian’s complete
`source code and related documentation:
`6)
`For each version of the GAT platform, all source code and executable code;
`7)
`All software commits for the GAT platform;
`8)
`All developer notes and working papers for the GAT platform;
`***
`19) All software development records, documents and things related to the GAT
`platform;
`20) All product development records, documents and things related to the GAT
`platform;
`Regarding Miller Mendel’s request for Guardian’s source code and related items, such as
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`software commits, developer notes, and product development records, one district court in the
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`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
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`- 10 -
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 10 of 13
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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 11 of 13
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`Tenth Circuit has stated “[t]here is no dispute that [the subpoenaed party’s] source code is a trade
`secret” because “source code is often ‘a company’s crown jewel, the shining star in the constellation
`of a computer program’s intellectual property rights.’” Raytheon Co. v. Cray, Inc., No. 2:16-MC-
`0898 DAK, 2017 WL 398362, at *2 (D. Utah Jan. 30, 2017) (internal quotation omitted). See also,
`Realtime Data, LLC v. MetroPCS Texas LLC, No. 12CV1048-BTM MDD, 2012 WL 1905080, at
`*3 (S.D. Cal. May 25, 2012) (finding that a nonparty whose customer was sued for patent
`infringement should not be compelled to produce its source code because it would constitute an
`“undue burden”). Miller Mendel explicitly asks for all versions of Guardian’s source code. The
`request is not safeguarded by adequate protective measures; it boldly asks Guardian to blindly turn
`over its “crown jewels.”
`Aeritas, LLC v. Delta Airlines, Inc., No. 1:13-CV-00346-RWS-WEJ, 2013 WL 454452, at
`*3 (N.D. Ga. Feb. 7, 2013) is instructive for the present situation. There, even though there was a
`protective order in place in the underlying lawsuits, the court refused to require the nonparty to
`produce its source code even though it appeared—at that time—irrelevant to the underlying
`lawsuits and would constitute an undue burden on the nonparty. Id. Here, Miller Mendel will likely
`argue that the protective order in place in this case contains adequate protective measures. Even if
`Guardian were a party to the litigation, the current protective order would not provide adequate
`protections for production of “for each version of the GAT platform, all source code and executable
`code.” [Guardian Subpoena, Request No. 6]. In districts where such source code review is a routine
`aspect of patent infringement cases, experts conduct those reviews in controlled environments
`where the producing party can rest assured disclosure will not happen outside of that review. This
`case—and certainly not the requests for source code in the Guardian Subpoena—does not provide
`those protections.
`As to the relevance of the Guardian code, Miller Mendel has not yet demonstrated such a
`review is necessary to prove their patent infringement case against OKC. Miller Mendel has
`requested to inspect OKC’s implementation of the GAT platform. Notwithstanding the above, until
`that inspection is complete, there is absolutely no reason for Miller Mendel to inspect the Guardian
`source code, as the infringement determination can possibly be made from inspecting OKC’s
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`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
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`- 11 -
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`
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 11 of 13
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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 12 of 13
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`implementation of the GAT platform. For these reasons, the Court should quash the Guardian
`Subpoena.
`
`CONCLUSION
`The Guardian Subpoena is Miller Mendel’s thinly-veiled attempt to implicate Guardian in
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`this case without having to bring its patent claims on Guardian’s home turf in the Eastern District
`of California. There is absolutely no excuse for Miller Mendel to use a Rule 45 subpoena to
`rampage through patent venue rules and the permissible scope of discovery for nonparties. The
`Guardian Subpoena seeks overly broad and unduly burdensome categories of information, asks for
`irrelevant and nonproportional information, and requests a nonparty’s trade secret, confidential,
`and proprietary information. Accordingly, the Court should quash the Guardian Subpoena.
`
`DATED: January 24, 2020
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`COLEMAN & HOROWITT, LLP
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`By:
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`/s/ Sherrie M. Flynn
`DARRYL J HOROWITT
`SHERRIE M. FLYNN
`Attorneys for Nonparty
`GUARDIAN ALLICANCE
`TECHNOLOGIES, INC.
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`- 12 -
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`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
`
`
`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
`
`Page 12 of 13
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`

`

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`Case 2:20-at-00083 Document 2 Filed 01/24/20 Page 13 of 13
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`PROOF OF SERVICE
`I declare that I am a citizen of the United States and a resident of the County of Oklahoma,
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`in the state of Oklahoma. I am over the age of eighteen (18) years and not a party to the within
`action. My business address is 609 West Sheridan Avenue, Oklahoma City, OK 73102.
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`On January 24, 2020, I served the foregoing document(s) described as NONPARTY
`GUARDIAN ALLIANCE TECHNOLOGIES INC’S MOTION TO QUASH THE GUARDIAN
`SUBPOENA AND BRIEF IN SUPPORT on the interested parties, addressed as follows:
`
`
`Kurt Rylander
`Rylander & Associates PC
`406 West 12th Street
`Vancouver, WA 98660
`rylander@rylanderlaw.com
`
`Todd Nelson
`Paul Rossler
`One Leadership Square, 15th Floor
`211 N. Robinson
`Oklahoma City, OK 73102
`tnelson@gablelaw.com
`prossler@gablelaw.com
`
`
`Attorneys for Plaintiffs
`BY MAIL - by placing [ ] a true and correct copy [ ] the original thereof enclosed in a
`sealed envelope with postage thereon fully prepaid in the firm’s outgoing mail. I am
`“readily familiar” with the firm’s practice of collecting and processing correspondence for
`mailing. It is deposited with United States Postal Service on that same day in the ordinary
`course of business.
`BY ELECTRONIC SERVICE - I caused true and correct copy of the document listed
`above to be served on the person(s) listed above. A copy of the delivery receipt is
`retained with this original Proof of Service in our office.
`STATE: I declare under penalty of perjury under the laws of the State of California that
`the foregoing is true and correct.
`FEDERAL: I declare under penalty of perjury under the laws of the State of Oklahoma
`that the foregoing is true and correct.
`Executed on January 24, 2020, at Oklahoma City, Oklahoma.
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` Evan W. Talley
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`- 13 -
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`BRIEF IN SUPPORT OF MOTION TO
`QUASH GUARDIAN SUBPOENA
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`[ ]
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`[X]
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`[X]
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 13 of 13
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