Xfinity Mobile's Subpoenas Don't Put 'Undue Burden' on 3rd Parties, Says Counsel
GlobalguruTech’s (GGT) July 14 motion to quash Xfinity Mobile’s subpoenas to payment service companies is improper because defendants don’t have standing to object to the wireless carrier’s subpoenas since they're directed to third parties, not to the defendants, said Xfinity’s Thursday response (docket 2:22-cv-01950) in U.S. District Court for Arizona in Phoenix. Also, a motion to quash must be filed in the place where compliance is required, which is the Northern District of Georgia, not the district of Arizona, it said.
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Xfinity subpoenaed PayPal, UPS and Zelle to identify entities that advertise, buy, sell and unlock handsets and security codes with GGT. Addressing another of GGT's objections to the subpeonas, Xfinity said, “There is no evidence that actual compliance with GlobalguruTech has imposed an “undue burden” on any single third party, said Xfinity Mobile. Xfinity “already received documents from PayPal” and it hasn’t received objections from UPS or Zelle, said the response.
Xfinity’s amended complaint alleges GlogalguruTech and the other defendants knowingly facilitate and encourage others to engage in unlawful business practices involving the unauthorized and deceptive purchase and resale of handsets under the Xfinity Mobile brand, traffic in its security codes and unlawfully access its computer networks.
Defendants participate in the scheme by using UPS to ship phones and Zelle and PayPal to send and receive payments, said the amended complaint. On July 7, Xfinity notified defendants they planned to serve subpoenas on UPS, PayPal and Zelle, with production of documents demanded by July 24. That Xfinity’s document requests didn’t specify the handset carrier brand doesn’t render the carrier’s requests “overly broad or burdensome,” said the response.
Based on her 15 years' experience as Xfinity counsel litigating handset trafficking cases and the "numerous subpoenas" her firm has sent to UPS and financial institutions such as PayPal and Zelle, Gail Podolsky of Carlton Fields said "it is highly unlikely that their records are going to disclose the handset carrier," such as Xfinity Mobile, Verizon or T-Mobile. Limiting subpoenas to producing only documents that reference Xfinity Mobile "will likely result in no responsive documents and unduly burden the non-party," she said, adding, "handset traffickers frequently conceal the carrier names to avoid detection." At most, Podolsky said, third parties are likely to have general references to the make and model of the cellphone or that wireless communications handsets are being shipped in a particular package.
In Podolsky's experience, shipping and logistics companies such as UPS and payment processors like PayPal and Zelle "will have important data that can be used to identify Defendants’ co-conspirators and the transportation and shipment of XM Phones to and from Defendants and their co-conspirators, namely, mailing addresses, names, telephone numbers, account numbers, and details on items purchased and sold," she said.
Plaintiffs aren’t required to rely on defendants’ discovery responses and document production, said Podolsky. “The production of this information by UPS and Zelle, rather than by Defendants, ensures completeness and accuracy at a minimal cost,” she said, saying GlobalguruTech’s motion should be “denied in its entirety.”