Case 4:16-cv-00350-ALM Document 80 Filed 09/07/16 Page 1 of 2 PageID #: 1836

United States District Court

EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ORTHOACCEL TECHNOLOGIES, INC.,

v.

PROPEL ORTHODONTICS, LLC,

PROPEL ORTHODONTICS USA, LLC,

CASE NO. 4:16-CV-350

Judge Mazzant

ORDER
Pending before the Court is Defendants Emergency Motion for Protective Order (Dkt.
#60). The Court, having considered the relevant pleadings, finds that Defendants motion should
be denied.
On August 21, 2016, Defendants filed an Emergency Motion for Protective Order (Dkt.
#60). In their motion, Defendants assert that Plaintiff has violated this Courts Joint Order
Regarding E-Discovery (the ESI Order) (Dkt. #47) by issuing subpoenas to Defendants
customers. Defendants request that the Court immediately order Plaintiff to refrain from issuing
any further third-party subpoenas to Defendants customers (Dkt. #47 at p. 12).
On August 26, 2016, Plaintiff filed its Response in Opposition to Defendants Emergency
Motion for Protective Order or in the Alternative Motion for Limited Expedited Discovery (Dkt.
#69). Plaintiff asserts that third party discovery is proper and necessary to acquire the evidence
needed to prove their claim under the Lanham Act (Dkt. 69 at p. 5-6). Plaintiff argues that the
patent infringement cases relied upon by the Defendants do not apply here because Plaintiff must
have contact with Defendants customers to prove deception (Dkt. #69 at p. 7). Further, Plaintiffs
argue that the ESI Order does not apply to third parties and Plaintiffs alleged violations are not
good cause for protection (Dkt. #69 at pp.7-9).

Case 4:16-cv-00350-ALM Document 80 Filed 09/07/16 Page 2 of 2 PageID #: 1837

On August 30, 2016, Defendants filed their Reply in Support of Propel Defendants
Emergency Motion for Protective Order (Dkt. #74). In their reply, Defendants claim Plaintiffs
communications with Defendants customers constitutes harassment and Plaintiff should seek the
information from Defendants rather than Defendants customers (Dkt. #74 at pp. 1-3).
The Court finds that Defendants motion should be denied. The ESI Order does not
apply to third parties and Defendants have failed to show good cause for limiting third party
discovery. Plaintiff must have contact with Defendants customers to prove deception under the
.

Lanham Act, and third party subpoenas are a proper discovery device to obtain such
information. 1
It is therefore ORDERED that Defendants Emergency Motion for Protective Order
(Dkt. #60) is DENIED.
SIGNED this 7th day of September, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

Defendants argue that Plaintiff is harassing Defendants customers by issuing

threatening letters and asks that the Court prevent OrthoAccel from contacting Propels
customers (Dkt #60 at pp.1, 12). The Court will not address whether the letters are improper on
this motion because the Court is limited to only offering protection from certain discovery
requests under Rule 26(c)(1).
2