Case 2:20-mc-00013-JRG-RSP Document 3 Filed 10/26/20 Page 1 of 3 PageID #: 143
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`A-20-MC-1041-RP
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`ORDER
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`GREE, INC.
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`V.
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`SUPERCELL OY
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`Before the Court is Non-Party Andrew Sheppard’s Motion to Quash and Accompanying
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`Motion to Transfer (Dkt. No. 1) as well as Defendant Supercell Oy’s Response (Dkt. No. 2).
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`I. Background
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`Non-Party Andrew Sheppard moves to quash a deposition in three underlying patent suits
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`currently pending in the Marshall Division of the Eastern District of Texas. These three suits are part
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`of eight patent cases where Gree asserts Supercell has infringed multiple patent families. Sheppard
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`has already been deposed in two of these three suits, and testified in Marshall, Texas, in a trial
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`between the parties. In that trial, a jury awarded Gree $8.5 million in damages. Sheppard objects to
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`the deposition. Additionally, Sheppard requests that this Court transfer his motion to the issuing
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`court, which is the Marshall Division of the Eastern District of Texas, as that court is familiar with
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`the suite of patent litigation between these two parties.
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`Supercell opposes Sheppard’s motion to quash. But it does not oppose Sheppard’s request
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`that the Court transfer the motion to the Marshall Division of the Eastern District of Texas.
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`II. Analysis
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`The Court’s analysis in deciding disputes regarding out-of-district subpoenas is governed by
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`Rule 45. Paws Up Ranch, LLC v. Green, 2013 WL 6184940, *1 (D. Nev. Nov. 22, 2013). Generally
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`speaking, Rule 45 requires that disputes related to non-party subpoenas be resolved locally, to avoid
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`Case 2:20-mc-00013-JRG-RSP Document 3 Filed 10/26/20 Page 2 of 3 PageID #: 144
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`imposing undue travel or expense burdens on non-parties who are challenging a subpoena. See, e.g.,
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`FED. R. CIV. P. 45(d)(2)(B)(i) (directing that motions to compel be filed in “the district in which
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`compliance is required”). Effective December 1, 2013, however, a significant change was made to
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`Rule 45 through the addition of a new subsection, which states:
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`(f) Transferring a Subpoena-Related Motion. When the court where compliance
`is required did not issue the subpoena, it may transfer a motion under this rule to the
`issuing court if the person subject to the subpoena consents or if the court finds
`exceptional circumstances. Then, if the attorney for a person subject to a subpoena
`is authorized to practice in the court where the motion was made, the attorney may
`file papers and appear on the motion as an officer of the issuing court. To enforce its
`order, the issuing court may transfer the order to the court where the motion was
`made.
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`FED. R. CIV. P. 45(f). The Advisory Committee’s comments to the amendment indicate that “[t]o
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`protect local nonparties, local resolution of disputes about subpoenas is assured by the limitations
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`of [Rule 45] . . . that motions be made in the court in which compliance is required under Rule 45.”
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`FED. R. CIV. P. 45, Advisory Committee Notes to 2013 Amendments, Subdivision (f). The Notes
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`state further, however, that “transfer to the court where the action is pending is sometimes
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`warranted,” either where the nonparty consents, or where there are exceptional circumstances. Id.
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`In making that decision, the Committee instructs that “the prime concern should be avoiding burdens
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`on local non-parties.” Id.
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`In this case both non-party Sheppard and Supercell Oy have consented to the transfer of
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`Sheppard’s Motion to Quash to the Marshall Division of the Eastern District of Texas. As evidenced
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`by their consents, the Court finds that in this case the interest in the issuing court deciding the
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`discovery dispute outweighs any interest in having the dispute heard in Austin, Texas.
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`Case 2:20-mc-00013-JRG-RSP Document 3 Filed 10/26/20 Page 3 of 3 PageID #: 145
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`IT IS THEREFORE ORDERED that Non-Party Andrew Sheppard’s Motion to Transfer
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`(Dkt. No. 1) is GRANTED and Non-Party Andrew Sheppard’s Motion to Quash is HEREBY
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`TRANSFERRED to the United States District Court for the Eastern District of Texas, Marshall
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`Division, and specifically in reference to E.D. Tex. Civ. Nos. 2:19-cv-00200-JRG-RSP,
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`2:19-cv-00237-JRG-RSP, and 2:19-cv-00413-JRG-RSP. The Clerk is directed to CLOSE this case.
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`SIGNED this 26th day of October, 2020.
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`_____________________________________
`ANDREW W. AUSTIN
`UNITED STATES MAGISTRATE JUDGE
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