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Frees, Inc. v. McMillian

September 15, 2006

FREES, INC., PLAINTIFF,
v.
PHIL MCMILLIAN, DEFENDANT.



The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge

(Jordan/Shirley)

MEMORANDUM AND ORDER

This matter is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 8] of the Honorable Leon Jordan, United States District Judge, for disposition of the Motion to Quash [Doc. 1] filed by Southeast Business Solutions, Inc. ("Southeast"). The undersigned held a hearing on this motion on August 10, 2006. Participating on behalf of the plaintiff Frees, Inc. ("Frees") was attorney Stephen Doody. Participating on behalf of the defendant Phil McMillian was attorney Alan Stroud. Participating on behalf of the non-party Southeast was attorney Brent Watson. Subsequent thereto, Southeast filed a Motion for the Court to Reconsider Its Decision Regarding the Motion to Quash [Doc. 11], and Frees responded [Doc. 12]. For the following reasons, and to the extent stated herein, Southeast's Motion to Quash [Doc. 1] is GRANTED IN PART, but only to the extent stated herein, and Southeast's Motion for the Court to Reconsider Its Decision Regarding the Motion to Quash [Doc. 11] is DENIED.

I. Factual Background

Plaintiff Frees is a Louisiana corporation that designs and constructs ventilation and dust control systems for manufacturing facilities where fiberglass-reinforced products, such as fiberglass boats, are made. Defendant McMillian was formerly a vice-president of Frees. In connection with his employment, McMillian was provided a laptop computer which contained business data and technological data, which Frees claims constitutes proprietary information. Upon McMillian's resignation, the laptop was repossessed by Frees, and it is alleged that much of Frees' proprietary information was missing from the laptop.

Immediately following his departure from Frees, McMillian went to work for Southeast. Southeast had just then recently hired another ex-employee of Frees, Tony Pierceall. Frees alleges that immediately after hiring McMillian and Pierceall, Southeast commenced the sale and manufacture of fiberglass ventilation and dust control systems virtually identical to those of Frees, filling orders for the same systems and the same manufacturing plants which McMillian had solicited for Frees only weeks before. Frees alleges that the autocad drawings, specifications, pricing, and other information pertinent to those systems and plants were among the data files missing from the laptop.

Frees subsequently filed suit in state court in Louisiana, naming McMillian, Southeast, and Pierceall as defendants. Frees also initiated the underlying action in the United States District Court for the Western District of Louisiana, alleging a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. The federal court action names only McMillian as a defendant. Southeast states that the state court litigation remains in the earliest stages, as Southeast has moved to dismiss for lack of personal jurisdiction. Discovery against Southeast in that case is currently limited to jurisdictional issues only.

II. Analysis

Southeast moves to quash a subpoena issued to Southeast by Frees in connection with the underlying federal litigation. Southeast objects to the subpoena as containing requests that are overbroad, unduly burdensome, immaterial, and unreasonable under the circumstances. [Doc. 1]. Frees opposes Southeast's motion, arguing that the subpoenaed is appropriately tailored and seeks information relevant to the underlying litigation. [Doc. 7].

The subpoena at issues seeks the following information:

1. Any documents of any and every nature (whether stored in paper format, electronically or in any other form, hereinafter "Documents"), that in any way pertain to, reflect, include, refer to or arise from either of the following:

(a) Any work performed or services rendered by Phil McMillian ("McMillian") and/or Lawrence "Tony" Pierceall ("Pierceall") for, through or on behalf of Southeast Building Solutions, Inc., its subsidiaries, divisions or affiliated businesses (hereinafter "Southeast"); or

(b) Any information provided by McMillian and/or Pierceall to or for the benefit of Southeast, in connection with ventilation for fiberglass fabricators (hereinafter "Fiberglass Ventiliation") services, equipment and/or systems, including without limitation the following: designs, design criteria, design parameters, calculations, formulas, data, work sheets, drawings, schedules, spread sheets, plans, specifications, plant layouts, survey materials, computer programs, software, computer or data entries, engineering analysis, reports, cost estimates and price quotations.

2. All Documents which indicate, refer or relate to any agreement between Southeast and ...


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