Second, Baker argues that the subpoena should have been quashed because it sought private and confidential information. Motion to Stay at 8. In briefing his Motion to Quash the subpoena, Baker had conclusorily asserted that “[t]he subpoena requires disclosure of private and confidential information of Mr. Baker” (Motion to Quash at 2, 5) and of “personal financial information” (Reply ISO Motion to Quash at 4), but he failed to provide any evidence to support this contention. Despite this lack of evidence, during the hearing, the Court modified the subpoena to limit its scope to the email@example.com
account advertised as the contact address for Baker's business, rather than to all gmail accounts used by Baker. Now, Baker belatedly attempts to support his privacy assertion with a vague declaration. See
Motion for Stay at 17 (Baker Decl.) 4-5 (without specifying whether he is referring solely to the one email account that is subject to this Court's Order, he states: “I estimate that since January 1, 2003, I have received and sent thousands, if not tens of thousands, of personal, private emails which have nothing whatsoever to do with the case in which the subpoena originated”). He argues that being forced to pay his attorneys to screen these documents and to create a privilege log would “necessarily involve an exorbitant amount of attorney time resulting in the incurrence of thousands of dollars of attorneys' fees for which Mr. Baker will not be reimbursed.” Id.
at 8. Baker's attorneys do not substantiate this “estimation” of costs with a declaration. Importantly, Baker never even made this cost argument in his briefs or oral argument in support of his Motion to Quash, when he only cursorily argued that his email account contained some private information, but never that the amount was voluminous. Because he did not raise this issue on his Motion to Quash, he waived it on appeal. See
Bolker v. Comm'r of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir.1985) (explaining that, subject to three exceptions, “[a]s a general rule, we will not consider an issue raised for the first time on appeal”). Furthermore, the Court is skeptical that the volume is as great as his “estimate,” and notes that the email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon.