Thambiah SUNDARAM v. GENWORTH LIFE INSURANCE COMPANY, et al Case No. CV 16-06218 TJH (AFMx) United States District Court, C.D. California Filed February 12, 2018 Counsel Michael B. Horrow, Stephen A. Diamond, Donna Marie Puyot, Donahue and Horrow LLP, El Segundo, CA, Steven L. Rodriguez, Rodriguez Law APC, Calabasas, CA, for Thambiah Sundaram. Joshua D. Kroot, Ronald D. Kent, Dentons US LLP, Los Angeles, CA, for Genworth Life Insurance Company, et al. MacKinnon, Alexander F., United States Magistrate Judge Order Granting in Part and Denying in Part Defendant’s Motion to Compel MUFG Union Bank, N.A., AT&T, Inc. and T-Mobile USA to Produce Documents (ECF No. 114) *1 Defendant has moved to compel production of documents in response to subpoenas to MUFG Union Bank, N.A. (“Union Bank”), AT&T, Inc. (“AT&T”), and T-Mobile USA, Inc. (“T-Mobile”). As set forth, below the Court DENIES the motion as to the subpoenas to AT&T and T-Mobile and GRANTS IN PART the motion regarding the subpoena to Union Bank. Federal Rule of Civil Procedure 26(b)(1) provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, a court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Further, the Rules must be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Subpoenas to AT&T and T-Mobile: The subpoena to AT&T seeks account statements and historical cell site location information (“CSLI”) concerning Plaintiff and a former caregiver (Melissa Gomez), for the time period August 1, 2015 to the present. The subpoena to T-Mobile seeks the same categories of documents for the same time period, for another phone number of Ms. Gomez. Defendant has provided no authority that would permit an order requiring production of CSLI data pursuant to a subpoena in a civil case, over the objection of the persons whose location information is at issue. District courts in the Ninth Circuit have held that production of CSLI to the government in criminal investigations may take place only under 18 U.S.C. § 2703(b) of the Stored Communications Act (“SCA”), either by consent or pursuant to a warrant based on probable cause. See, e.g., United States v. Alvarez, 2016 WL 3163005 (N.D. Cal. June 3, 2016); United States v. Williams, 2016 WL 492934 (N.D. Cal. Feb. 9, 2016).[1] Moreover, cases have held that materials protected by the SCA may not be obtained by subpoenas in civil lawsuits because the SCA does provide authorization for access in this manner. See Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 975-76 (C.D. Cal. 2010); Viacom Int. Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008). Thus, there is substantial doubt whether Defendant’s subpoenas to AT&T and T-Mobile are enforceable given the limitations of the SCA. *2 In any event, it is not necessary to resolve this question in connection with the present motion because of other issues regarding the subpoenas for CSLI. As an initial matter, the time period for the requests in these subpoenas goes far beyond the period that could conceivably yield relevant documents. The case involves home care services that Ms. Gomez allegedly provided to Plaintiff for 4-1/2 months from August 1, 2015 to December 15, 2015. Yet the subpoenas seek CSLI data and account documents for 2-1/2 years, all the way to the present. Defendant has made no showing how CSLI over this lengthy period has relevance under the facts of this case. The unreasonableness of the temporal extent of the requests, by itself, is a sufficient reason to deny the motion to compel as to these subpoenas. Moreover, Defendant has already obtained information about the locations of Plaintiff and Ms. Gomez during the relevant time frame (including via security cameras, bank records, and social media postings). In addition, Plaintiff and Ms. Gomez have shown that they have privacy rights in the requested data under California law. After consideration of (i) the overbreadth of the time period in Defendant’s requests, (ii) Defendant’s ability to obtain location information via other means, and (iii) the limited amount at stake in this case ($35,620), the Court finds that enforcing the subpoenas for CSLI would not be proportional to the needs of this case and would impermissibly infringe the privacy rights of Plaintiff and Ms. Gomez without a substantial justification under the circumstances in this case. Subpoena to Union Bank: This subpoena seeks documents reflecting the locations, dates and times for a range of banking transactions in accounts related to Plaintiff for the time period August 1, 2014 to the present. Defendant has stated that it needs information about the locations of Plaintiff and Ms. Gomez because it questions the legitimacy of deposits and withdrawals by Plaintiff into and out of his bank accounts in connection with his alleged payments to Ms. Gomez. Although previous bank records have been produced, they apparently do not contain complete time, date and location information. Therefore, Defendant seeks additional bank records via the current subpoena. Although the location of Plaintiff’s deposits and withdrawals are the stated basis for this subpoena, the actual requests go beyond that information and seek documents about other types of banking transactions that are not alleged to have relevance. As with the CSLI subpoenas discussed above, this subpoena has a time period that is overbroad and well beyond the relevant dates at issue in this matter. The beginning date of August 1, 2014, is too early – being one year before Ms. Gomez is alleged to have started working for Plaintiff. And the end date is too late – seeking documents up to the present even though Ms. Gomez ceased working for Plaintiff on December 15, 2015. Therefore, the Court grants the motion to compel only as to documents showing the location, date and time of withdrawals and deposits by Plaintiff between August 1, 2015 and March 2016. The Court has selected the end date for the production based on documents found in Exhibit 12 to the Kroot declaration (ECF No. 114-2). Although Defendant states that the bulk of the deposits were made in January and February 2017, Exhibit 12 shows that most of the transactions were dated in January and February 2016. (See ECF No. 114-2 at 106-17.) The Court finds the subpoena to be relevant and proportional to the needs of the case if limited to deposits and withdrawals in this shortened time frame and therefore grants the motion regarding the Union Bank subpoena to this narrowed extent only. IT IS SO ORDERED. [1] Currently pending before the United States Supreme Court is Carpenter v. United States, Docket No. 16-402, in which the issue has been presented whether search and seizure of cell phone records, which include the location and movement of cell phone users, violates the Fourth Amendment.