The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
This matter is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 10] of the Honorable Leon Jordan, United States District Judge, for disposition of the plaintiffs' Motion to Compel Compliance with Subpoenas Duces Tecum Served on Non-Parties [Doc. 1]; MasterCraft's Motion to Quash or for Protective Order [Doc. 7]; and the Motion of Skier's Choice, Inc. to Quash Subpoena or, in the Alternative, for a Protective Order [Doc. 8]. The Court held a hearing on these motions on March 16, 2007.
The underlying civil action is pending in the United States District Court for the District of New Jersey. In that action, the plaintiffs Viking Yacht Company and Post Marine Company, Inc. asserts claims against the defendants Composites One LLC and Cook Composites and Polymers ("CCP") for, among other things, breach of contract, express warranty, implied warranty, and fraud in connection with a product sold to the plaintiffs for their use in the boat manufacturing process. Specifically, the plaintiffs claim that a 953 series gel coat manufactured by CCP is defective and causes massive cracking of the boats' outer "skins." CCP asserts that gel coat cracking is common and that the 953 series gel coat performs acceptably on an industry-wide basis.
In connection with that litigation, the plaintiffs served several non-parties, including Skier's Choice, Inc. ("Skier's Choice") and MasterCraft Boat Company ("MasterCraft"), with subpoenas duces tecum, requesting documents regarding these non-parties' use and experience with 953 series gel coats as well as other gel coats. Specifically, the subpoenas seek the following documents from Skier's Choice and MasterCraft:
(1) Communications or correspondence with the defendants regarding "any problems concerning any gel coat manufactured by CCP and purchased by you from 1995 through 2003";
(2) Records "indicating the types and quantities of gel coat purchased by you from CCP from 1995 through 2003";
(3) Documents "indicating any purchases by you from CCP of Series 953 gel coat at any time";
(4) Records "with respect to any problems, investigations, complaints, communications, or correspondence with respect to any cracking problems in boats built by you and using 953 series gel coat"; and
(5) Records "with respect to any problems, investigations, complaints, communications, or correspondence with respect to any cracking problems in boats built by you and using any gel coat purchased by you from CCP, excluding series 953 gel coat."
Additionally, the subpoena served on Skier's Choice requests copies of "agreements, settlements, accommodations, accords or compromises reached between you and [CCP] relating to any issues of gel coat cracking." [Doc. 1 Ex. A].
Skier's Choice and MasterCraft failed to produce the requested records, and the plaintiffs now move to compel these non-parties to comply with the respective subpoenas duces tecum. [Doc. 1]. For grounds, the plaintiffs argue that the requests are relevant to the pending lawsuit, specifically to the issue of whether the 953 series gel coat failure was "ordinary" or whether it was "unique" and to the issue of whether the 953 series gel coat was in fact an improvement over the previously used 952 series gel coat, as CCP warranted. The plaintiffs contend that the time frame (1995 to 2003) is relevant because the 953 series gel coat was brought to market in 1997 as a replacement for the 952 series gel coat, and thus, the plaintiffs will be able to compare the performance of other CCP gel coats used from 1995 to 1997 to the 953 series gel coat. The plaintiffs further argue Skier's Choice has waived any objection to the subpoena by failing to serve written objections within the appropriate time period and that MasterCraft's written objections are insufficient.
Both Skier's Choice and MasterCraft oppose the plaintiffs' motion and move to quash the subpoenas served on them. [Docs. 7, 8]. Specifically, they argue that the requests are overly broad, vague, and seek information without limitation on scope or content. Further, they argue that the requests are unduly burdensome and cumulative, as they seek information already obtained from CCP. Finally, the non-parties argue that the requests seek trade secrets and commercially sensitive information. Alternatively, the non-parties seek a protective order modifying or limiting the scope of the requests in the subpoenas.
In a supplemental brief [Doc. 16], the non-parties argue that the plaintiffs have asserted in the New Jersey litigation that "each variation of gel coat is unique" and that the gel coats at issue in this litigation are only certain variations of the 953 series gel coat -- 953WJ208, 963WJ227, 953WJ458, and 953WA411. The non-parties argue that they never used these "unique" variations of the 953 series gel ...