United States District Court, E.D. North Carolina, Northern Division
E. Gates United States Magistrate Judge
case comes before the court on the emergency motion filed by
plaintiff Merz North America, Inc. ("plaintiff) (D.E.
10) for an order allowing it to take expedited discovery
prior to conducting a conference pursuant to Rule 26(f) of
the Federal Rules of Civil Procedure and an order requiring
the preservation of evidence by defendants. For the reasons
set forth below, the motion will be allowed in part and
denied in part.
complaint, plaintiff alleges that its former sales
executives, defendants Sean Shapiro ("Shapiro") and
Tracy Andora ("Andora"), signed nondisclosure and
nonsolicitation agreements as a condition of employment with
plaintiff. See Compl. (D.E. 1) ¶¶ 5, 7.
Shapiro and Andora voluntarily resigned from employment with
plaintiff and joined defendant Viveve, Inc.
("Viveve") in its sales leadership team.
Id. ¶¶ 37, 41. Plaintiff alleges that
Viveve, with Shapiro and Andora's assistance, has
unfairly used knowledge and information about plaintiffs
customer relationships for the benefit of Viveve and
defendant Viveve Medical, Inc. ("Viveve Medical").
Id. ¶¶ 43, 44. Plaintiff further contends
that Viveve continues to interfere with plaintiffs
contractual and business relations by soliciting and hiring
plaintiffs employees. Id. ¶ 51. Plaintiff
asserts claims for breach of contract against Shapiro and
Andora (id. ¶¶ 56-62); misappropriation
and/or threatened disclosure of trade secrets against all
defendants (id ¶¶ 63-70); tortious
interference with contractual relations against Viveve and
Viveve Medical (id. ¶¶ 71-77); and unfair
trade practices against all defendants (id.
has moved for a temporary restraining order ("TRO")
(D.E. 3) prohibiting Shapiro and Andora from soliciting its
employees or using its confidential, trade secret, and
business information, and preventing Viveve and Viveve
Medical from assisting any such breaches and utilizing unfair
practices to recruit Merz employees. No hearing on the motion
for a TRO has been scheduled.
instant motion, plaintiff seeks leave to serve eight
expedited requests for production of documents (D.E. 10-1)
and two expedited interrogatories (D.E. 10-2) on each Shapiro
and Andora, and seven expedited requests for production of
documents (D.E. 10-3) and one expedited interrogatory (D.E.
10-4) on Viveve. Plaintiff requests that defendants be
directed to respond to the discovery requests within five
business days of service. It also seeks a directive requiring
all defendants to preserve evidence relevant to the subject
matter of the complaint and to prohibit all defendants from
using, accessing, tampering with, or destroying any documents
relating to Viveve or other Merz employees. Defendants, who
appeared through counsel after the motion was filed, have
filed a memorandum (D.E. 22) in opposition to the
discovery is not permitted until after the parties have
conferred pursuant to Rule 26(f). Fed.R.Civ.P. 26(d)(1).
However, the court has discretion to alter the timing and
sequence of discovery. Id. While the Federal Rules
of Civil Procedure do not set forth the standard to be
applied in assessing a motion for expedited discovery, courts
typically apply either a reasonableness or good cause test
taking into account the totality of the circumstances, or a
modified preliminary injunction test. Gaming v. W.G.
Yates & Sons Constr. Co., No. 1:16CV30, 2016 WL
3450829, at *3 (W.D. N.C. 16 June 2016); Lewis v.
Alamance Cty. Dep't of Soc. Servs., No. 1:15CV298,
2015 WL 2124211, at *1 (M.D. N.C. 6 May 2015).
court agrees with the courts in this circuit that have
applied the reasonableness or good cause standard to requests
for expedited discovery. See Gaming, 2016 WL
3450829, at *3; Chryso, Inc. v. Innovative Concrete Sols,
of the Carolinas, LLC, No. 5:15-CV-115-BR, 2015 WL
12600175, at *3 (E.D. N.C. 30 June 2015); Dimension Data
N. Am., Inc. v. NetStar-1, 226 F.R.D. 528, 531 (E.D.
N.C. 2005). Factors that courts consider under this test
include the procedural posture of the case, whether the
discovery requested is narrowly tailored, whether the party
seeking the information would be irreparably harmed by
waiting until after the parties conduct their Rule 26(f)
conference, and whether the information sought would be
unavailable or subject to destruction in the absence of
expedited production. Chryso, 2015 WL 12600175, at
*3. In any event, under either test, a party must show
"a likelihood of irreparable harm without access to
early discovery." Lewis, 2015 WL 2124211, at
court will examine separately each of the factors relating to
plaintiffs request for expedited discovery. The court's
discussion of the fourth factor, relating to the risk of
spoliation of evidence, includes the court's analysis of
plaintiff s separate request for a preservation order.
plaintiff seeks to conduct discovery prior to defendants
filing answers in the case. As noted, plaintiff has filed a
motion for a TRO, but no hearing is currently scheduled on
that motion. Other courts have permitted expedited discovery
in preparation for a hearing seeking injunctive relief.
See KBG Holding Corp. v. Union Bank, 56 Fed.Appx.
Ill. 114 (4th Cir. 2003) ("The parties engaged in
expedited discovery in preparation for the . . . hearings on
the competing motions for preliminary injunction.").
Because no hearing is currently scheduled, this factor weighs
only slightly in favor of permitting expedited discovery.
Chryso, 2015 WL 12600175, at *3 ("The lack of a
pending motion hearing distinguishes this case from many
other cases regarding expedited discovery. Thus, if the court
were to allow [plaintiffs] expedited discovery, there is the
potential that the parties might engage in discovery in
preparation for a preliminary injunction hearing that never
occurs. Therefore, while the procedural posture of this case
generally weighs in favor of granting [plaintiffs] Motion, it
does so only slightly because of the uncertainty surrounding
a potential preliminary injunction hearing."); see
also Dimension Data, 232 F.R.D. at 532 (noting that
expedited discovery was not warranted because no TRO or
preliminary injunction hearing or determination was pending).
Scope of Discovery Requests
noted, in order to justify expedited discovery, the proposed
discovery requests must be targeted or otherwise tailored to
obtaining injunctive relief, and not simply be addressed to
the ultimate merits of plaintiffs claims. See Nutrition
& Fitness, Inc. v. Progressive EMU, Inc.,
5:12-cv-192-F, 2012 WL 1478734, at *4 (E.D. N.C. 27 Apr.
2012) (finding expedited discovery appropriate but narrowing
the requests from those sought by plaintiff); Dimension
Data, 232 F.R.D. at 532 (denying expedited discovery