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Loparex Response to Emergency Motion

Loparex Response to Emergency Motion

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Published by Seth Leventhal

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Published by: Seth Leventhal on Jan 19, 2010
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01/18/2010

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UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA
IN RE SUBPOENA TOBRIGGS AND MORGAN, P.A.Loparex LLC,Plaintiff,v.MPI Release, LLC, Gerald Kerber, andStephan Odders,Defendants.Court File No. 10-MC-2 (MJD/SRN)
LOPAREX’S MEMORANDUM INOPPOSITION TO MPI’SEMERGENCY MOTION TOENFORCE SUBPOENAINTRODUCTION
More circus. That’s what MPI’s “Emergency” Motion to Enforce Subpoena is.There is no emergency. And MPI’s only reason for serving the subpoena is because itfailed to comply with the Southern District of Indiana Court’s scheduling order in theIndiana case and properly obtain its discovery in that litigation.Loparex, LLC (“Loparex”) and MPI Release Technologies, LLC, Gerald Kerber,and Stephan Odders (collectively, “MPI”) are currently parties to litigation in theSouthern District of Indiana,
 Loparex, LLC vs. MPI Release, LLC, et al.
, Case No. 1:09-cv-1411 (“the Indiana case”). MPI served a third-party subpoena on the Minneapolis lawfirm Briggs & Morgan, requesting a disc of over 11,000 pages of electronic documents produced by Loparex in
 Hanson v. Loparex Inc. et al.
, Case No. 09-cv-1070 (D. Minn.)(“the Minnesota case”), a case before this Court to which MPI is not a party. Of the11,000 pages of documents produced by Loparex in the Hanson case, Loparex has
Case 0:10-mc-00002-MJD-SRN Document 12 Filed 01/15/10 Page 1 of 22
 
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already produced over 8,000 of those pages to MPI in the Indiana case. The remainingdocuments on the disc have not been produced by Loparex because they are not relevantto the Indiana case and contain highly confidential information, such as trade secrets,customer lists, financial information and sales reports.MPI argues for emergency relief before
this
Court as if it has no other remedy.What MPI fails to disclose is that the Indiana court issued a scheduling order governingall discovery matters pertaining to the preliminary injunction hearing. The Indianacourt’s orders prohibited broad discovery and required all motions to compel to be brought on or before December 16, 2009. Indeed, MPI requested additional time to filemotions to compel, and the court set December 30, 2009 as the final deadline for disputesrelating to injunction discovery.MPI brought no motion to compel. Having failed to respect the Indiana court’sscheduling order for injunction discovery, MPI now attempts to do an end-run around itsown court and places the burden on
this
Court to hear this improper “emergency” motion.Loparex respectfully requests this Court deny the emergency motion to enforcesubpoena brought by the MPI defendants for the following reasons: (1) the subpoena andemergency motion filed in this Court are an improper attempt by MPI to circumvent andabuse the proper discovery process in the Indiana case; (2) the Protective Order in theMinnesota case prohibits enforcement of this subpoena; (3) the subpoena must bequashed under Federal Rule of Civil Procedure 45; and (4) the subpoena requestsinformation that is not relevant.
Case 0:10-mc-00002-MJD-SRN Document 12 Filed 01/15/10 Page 2 of 22
 
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FACTUAL BACKGROUND
There are two separate cases implicated by this emergency motion to enforce. Thefirst is
 Hanson v. Loparex Inc.
, Case No. 09-cv-1070-MJD-SRN (D. Minn.) (the“Minnesota case”). In that case, Loparex is the defendant and counterclaimaint. (Defs.’Ex. 1). Jon Hanson, the plaintiff, is represented by Briggs & Morgan. (Streater Decl. ¶¶2-3). Hanson is a former employee of Loparex who was given an offer of employmentwith Mondi Akrosil, LLC (“Mondi”), a competitor of Loparex, after his employmentwith Loparex terminated. (Defs.’ Ex. 5 ¶ 25). The crux of the Minnesota litigation is anon-compete agreement between Loparex and Hanson. (Defs.’ Ex. 1, pg. 8 ¶ 15).Although at one point Mondi was a third-party defendant in this suit, Mondi is no longer a part of the Minnesota litigation.
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(Zamzow Decl. Ex. C). In the
 Hanson
case, thisCourt issued a Protective Order under which 11,536 pages of documents were producedon a disc by Loparex to Hanson. (Zamzow Decl. 2, 3). All of these documents werelabeled “Confidential” or “Confidential—Attorneys Eyes Only.” (Id.)A separate action exists in the Southern District of Indiana,
 Loparex LLC v. MPI  Release, LLC 
, Case No. 09-cv-1411-SEB-JMS (S.D. Ind.) (the “Indiana case”). In theIndiana case, Loparex is the plaintiff and MPI Release, Steve Odders and Gerald Kerber are the defendants. (Defs.’ Ex. 2). Odders and Kerber are former employees of Loparexwho now work for Loparex’s competitor, MPI Release. (Defs.’ Ex. 4, pg. 2 ¶¶ 3–5).
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MPI incorrectly identifies Mondi as a party to the Minnesota case, and refers toLoparex as a “third party plaintiff.” (Defs.’ Br. at 2). Those statements are incorrect asMondi has been dismissed from the suit. (See Zamzow Decl. Ex. C).
Case 0:10-mc-00002-MJD-SRN Document 12 Filed 01/15/10 Page 3 of 22

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