Earthy, LLC v. BB&HC, LLC, No. 16 C 4934, Slip Op. (N.D. Ill. Oct. 10, 2017) (Kim, Mag. J.).

Magistrate Judge Kim granted declaratory judgment defendant BB&HC’s motion to quash a subpoena of an individual member of BB&HC in this trademark dispute involving BB&HC’s EARTHY DELIGHTS mark.

Because the individual member had a “minimal role” in BB&HC’s daily activities, he was not a managing agent that would be susceptible to subpoena or as a Fed. R. Civ. P 30(b)(1) fact witness. In fact, while BB&HC was created to hold companies originally held by the individual member’s trust, BB&HC had always been managed by someone other than the individual member. The fact that the individual member was the only member of the LLC was irrelevant because BB&HC retained a separate managing agent.

Having held that the individual member was a non-party, the Court turned to whether the deposition would impose an undue burden on the individual member. The Court held that the subpoena would have unduly burdened the individual member because:

  • Certain document requests in the subpoena were over broad;
  • Declaratory judgment plaintiffs (collectively “Earthy”) did not show that they had sought the relevant discovery through less intrusive means; and
  • Earthy had not sufficiently shown that the individual member had unique information that Earthy could not otherwise access. The fact that he co-signed a trademark transfer was not sufficiently unique, absent more explanation.

The Court also refused to allow just the subpoena’s document requests to be responded to because the requests themselves were over broad.