Vysata v. Menowitz
Vysata v. Menowitz
2019 WL 2871145 (C.D. Cal. 2019)
May 30, 2019

Oliver, Rozella A.,  United States Magistrate Judge

Third Party Subpoena
Cost Recovery
Proportionality
Download PDF
To Cite List
Summary
The Court quashed the subpoenas as to items 2 through 4 due to attorney-client privilege, and found that Defendants lacked standing to challenge the subpoenas as to items 1 and 5 through 9. The Court also ordered Plaintiff to return any documents produced pursuant to the subpoenas and to destroy all additional copies, and prohibited her from using or disclosing the information contained in the documents. ESI was important in this case as it was the primary source of evidence for the communications that were the subject of the subpoenas.
Alice VYSATA
v.
Marc MENOWITZ, et al
Case No.: CV 18-06157 JAK (RAO)
United States District Court, C.D. California
Filed May 30, 2019
Oliver, Rozella A., United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO QUASH SUBPOENAS [136]

*1 Pending before the Court is Defendants' Motion to Quash Vysata's Subpoenas (“Motion”). (Dkt. No. 136.) Plaintiff filed an untimely Opposition on May 21, 2019 (Dkt. No. 155),[1] and Defendants filed a Reply on May 22, 2019 (Dkt. No. 160).
The Court finds this matter suitable for disposition without oral argument. See Local Rule 7-15. The hearing noticed for June 5, 2019 is hereby VACATED.
After considering Defendants' Motion, Plaintiff's Opposition, and Defendants' Reply, the Court GRANTS IN PART Defendant's Motion. The Court DENIES both parties' requests for attorneys' fees and costs.
I. LEGAL STANDARDS
Under Federal Rule of Civil Procedure 26 (“Rule 26”), “[p]arties 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, considering [1] the importance of the issues at stake in the action, [2] the amount in controversy, [3] the parties' relative access to relevant information, [4] the parties' resources, [5] the importance of the discovery in resolving the issues, and [6] whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevance for purposes of Rule 26 is not the same as under the Federal Rules of Evidence, as Rule 26 states that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that ... 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 ... [or] the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).
Federal Rule of Civil Procedure 45 (“Rule 45”) governs discovery of nonparties by subpoena. Subpoenas under Rule 45 are subject to the same scope of discovery defined in Rule 26(b). See Fed. R. Civ. P. 45 advisory committee's note (1970 amendments) (“[T]he scope of discovery through a subpoena is the same as that applicable to Rule 34 and other discovery rules.”); see also Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006). On timely motion, the Court must quash or modify a subpoena that requires disclosure of privileged or other protected matter or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A). Rule 26 and Rule 45 give “ample discretion” to the Court to quash or modify a subpoena that causes undue burden. Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774, 779 (9th Cir. 1994). The party moving to quash a subpoena has the burden of persuasion, “but the party issuing the subpoena must demonstrate the discovery sought is relevant.” Chevron Corp. v. Donziger, No. 12-MC-80237 CRB (NC), 2013 WL 4536808, at *4 (N.D. Cal. Aug. 22, 2013); accord Green v. Baca, 226 F.R.D. 624, 654 (C.D. Cal. 2005), order clarified, No. CV 02-204744-MMM-MANX, 2005 WL 283361 (C.D. Cal. Jan. 31, 2005).
*2 “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 973-74 (C.D. Cal. 2010) (citing 9A Charles Wright & Arthur Miller, Federal Practice & Procedure, § 2459 (3d ed. 2008)); see Televisa, S.A. de C.V. v. Univision Commc'ns, Inc., No. CV 05-3444 PSG (MANx), 2008 WL 4951213, at *1 (C.D. Cal. Nov. 17, 2008). A party may also seek a protective order where a subpoena to a third party seeks confidential information implicating that party's privacy interests or bears on that party's business relationships. See Cabell v. Zorro Productions, Inc., 294 F.R.D. 604, 607-08 (W.D. Wash. 2013).
II. DISCUSSION
A. Waiver of Objections
Plaintiff contends that Defendants have waived objections to the subpoenas due to their delay in filing the Motion and their failure to meet and confer with Plaintiff prior to the subpoena compliance date of April 29, 2019. (See Dkt. No. 155 at 5.) The Court rejects this argument.
Defendants received notice of the subpoenas on April 8, 2019. (Chase Decl., Dkt. No. 136-1 ¶ 5 & Ex. A.) On April 9, 2019, Defendants' counsel objected to the subpoenas' issuance and requested a telephone call in the next two days. (Chase Decl. ¶ 6 & Ex. B.) Plaintiff's counsel replied in the early morning hours of April 12, 2019, requesting a letter in compliance with Local Rule 37-1. (Chase Decl. ¶ 8 & Ex. G.) On April 16, 2019, Defendants' counsel sent three letters detailing Defendants' objections to the subpoenas. (Chase Decl. ¶ 9 & Exs. D-F.) That same day, Plaintiff's counsel stated that she was available to meet and confer on April 26, 2019, and Defendants' counsel sent a joint stipulation. (Chase Decl. ¶ 10 & Exs. G, I.) On April 23, 2019, Plaintiff's counsel inquired as to whether Defendants' counsel could meet and confer on April 26, 2019. (Chase Decl. ¶ 17 & Ex. M.)
Defendants first filed a motion to quash the subpoenas on April 24, 2019. (Dkt. No. 124.) On April 26, 2019, the Court denied the motion without prejudice, finding that the motion was premature because the parties had not yet met and conferred in compliance with the Local Rules. (Dkt. No. 129.) Defendants' counsel then sent an email to Plaintiff's counsel, as well as a follow-up email on April 30, 2019. (Chase Decl. ¶ 30.) Counsel for the parties exchanged emails and letters over the next two days. (See id. ¶¶ 31-35.) Defendant filed this Motion on May 8, 2019. (Dkt. No. 136.)
Defendants have raised objections to Plaintiff since April 9, 2019, and their original motion to quash—which contained substantially the same objections as this Motion—was filed before the subpoenas' compliance deadline. The Court therefore finds that Defendants have not waived their objections to the subpoenas.
B. Service of Subpoenas
Under Rule 45, before a subpoena for documents, electronically stored information, or tangible things is served, “a notice and a copy of the subpoena must be served on each party.” Fed. R. Civ. P. 45(a)(4).
According to Defendants, the third-party subpoenas at issue were served on or around April 4, 2019. (See Chase Decl., Exs. N-CC (subpoenas), Ex. JJ (letter from Plaintiff's counsel stating, “Plaintiff served subpoenas on various third parties on or about April 4, 2019”).) However, notice of the subpoenas was not sent to Defendants until April 8, 2019. (See Chase Decl., Ex. A.)
*3 According to Plaintiff, the subpoenas were drafted and signed on April 4, 2019, but they were not provided to any process servers until April 9, 2019, after providing notice to Defendants. (Dkt. No. 155 at 5; Figari Decl., Dkt. No. 155-1 ¶¶ 2-5.)
Plaintiff submits proofs of service and non-service reports for most of the subpoenas,[2] documenting service attempts after April 8, 2019. (Figari Decl., Ex. B.) Because Plaintiff served the subpoenas in compliance with Rule 45, the Court cannot quash the subpoenas on this basis.
C. The Subpoenas
1. Subpoena to Audrey Yeboah
Plaintiff served a subpoena on Audrey Yeboah seeking all documents relating to her relationship with Defendant Menowitz, including retainer agreements and contracts (item 1); all documents reflecting accounting done for Defendants (item 2); all documents reflecting accounting done for any person or entity who paid money to Plaintiff (items 3 and 4); all invoices submitted to Defendants since January 1, 2011 (items 5 and 6); all documents reflecting any money or other remuneration provided by Defendants (item 7); all documents reflecting communications with Defendant Menowitz, Kenneth E. Chase, Aryeh Kaufman, or Zachary Slankard since January 1, 2011 (items 8-11); all documents reflecting all communications with any person about Plaintiff (item 12); and all non-privileged documents relating to any criminal action in which Ms. Yeboah was a defendant (item 13). (Chase Decl., Ex. P.)
Although Defendants lack standing to challenge several of the requested items, the Court exercises its inherent power to limit discovery. See Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii). As an accountant and tax preparer, Ms. Yeboah is prohibited from disclosing some of the requested information. See, e.g., 26 U.S.C. §§ 6713, 7216(a); Cal. Bus. & Prof. Code § 17530.5(a). Items 1 through 8 seek information that presumably would have been obtained by Ms. Yeboah through her role as a tax preparer. It is not clear whether items 9 through 11 also relate to information obtained from tax preparation, but the Court nevertheless is not persuaded by Plaintiff's argument regarding their relevance. Plaintiff notes that Defendants previously produced a declaration from Ms. Yeboah that included information obtained through Ms. Yeboah's preparation of Plaintiff's taxes. (Dkt. No. 155 at 6-7.) Plaintiff contends that items 9 through 11 “are relevant to determine why, how and under what circumstances Defendants counsel and/or Ms. Yeboah decided to disclose this information.” (Id at 7.) It is not clear to the Court how this is relevant to a claim or defense in this action, and so the Court must limit discovery. See Fed. R. Civ. P 26(b)(2)(C)(iii).
The subpoena served on Ms. Yeboah is therefore QUASHED as to items 1 through 11.
Defendants' Motion is DENIED with respect to items 12 and 13, as Defendants lack standing.[3] See Crispin, 717 F. Supp. 2d at 973-74.
2. Subpoena to LinkedIn[4]
*4 Plaintiff served a subpoena on LinkedIn seeking all postings for intern positions and other job positions submitted by Defendants since January 1, 2010; all documents reflecting communications between LinkedIn and Defendants, Kenneth E. Chase, Aryeh Kaufman, or Zachary Slankard since January 1, 2011; all documents reflecting communications with any person about Plaintiff; all documents relating to complaints of discrimination, harassment, or retaliation made against Defendants; all documents relating to every housing transaction worked on in any manner by Plaintiff; and all documents relating to this lawsuit. (Chase Decl., Ex. Q.)
Defendants challenge the fact that Plaintiff “literally served a subpoena for her opposing counsel's social media accounts,” and they contend that documents relating to Defendants' counsel “do not have a scintilla of relevance to this case.” (Dkt. No. 136 at 12-13.) However, Defendants do not have standing to challenge this aspect of the subpoena, as they do not claim a privacy or privilege interest in the communications. See Crispin, 717 F. Supp. 2d at 973-74.
As Defendants appear to challenge only portions of the subpoena for which they lack standing, the Motion is DENIED with respect to the LinkedIn subpoena. Additionally, the Court notes that Plaintiff's counsel represented that during the meet and confer process, she agreed that the requests for communications by Mr. Chase, Mr. Kaufman, and Mr. Slankard would be withdrawn. (Dkt. No. 155 at 4; Figari Decl., Ex. H at 9.)
3. Subpoenas to Defendant Menowitz's Family Members
Plaintiff served subpoenas on Defendant Menowitz's mother, father, brother, and sister. (Chase Decl., Dkt. No. 136-2, Exs. N, O, R, V; seeDkt. No. 136-1 at 10, 12, 14, 21.) The subpoenas seek all documents reflecting communications with Defendant Menowitz, Kenneth E. Chase, Aryeh Kaufman, and Zachary Slankard since January 1, 2011. (Chase Decl., Exs. N, O, R, V.) They also seek all documents reflecting all communications with any person about Plaintiff; all documents relating to complaints of discrimination, harassment, or retaliation made against Defendants; all documents relating to every housing transaction worked on in any manner by Plaintiff; and all documents related to this lawsuit. (Id.)
Defendants contend that the subpoenas served on Defendant Menowitz's family members are overbroad, unduly burdensome, vague, and facially defective. (See Dkt. No. 136-1 at 10, 12, 14, 21.) Defendants also contend that the subpoenas seek privileged and irrelevant documents. (Id.)
Plaintiff defends the subpoenas on the grounds that Defendants lack standing to challenge the subpoenas and Defendants waived any objections. (Dkt. No. 155 at 4-5.)
Although Defendants appear to lack standing, the Court nevertheless exercises its inherent power to limit discovery. See Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii). Plaintiff provides no explanation as to the relevance or necessity of family members' documents reflecting communications with or relating to Defendant Menowitz. The Court agrees with Defendants that these subpoenas appear to have been served for the purpose of harassing Defendants and the subpoenas' recipients. The Court finds that Defendant Menowitz has met his burden of persuasion, and Plaintiff has failed to demonstrate that the discovery sought is relevant. See Chevron Corp. v. Donziger, No. 12-MC-80237 CRB (NC), 2013 WL 4536808, at *4 (N.D. Cal. Aug. 22, 2013).
For these reasons, the subpoenas served on Suzanne Menowitz, Fred Menowitz, Todd Menowitz, and Lisa Hamburger are hereby QUASHED. See Fed. R. Civ. P. 45(d)(3)(A)(iv) (the Court must quash a subpoena that subjects a person to undue burden).
4. Subpoenas to Defendant ARA's Employees
*5 Plaintiff served subpoenas on Apolonia “Nonee” Darner and Helen Guei. (Chase Decl., Exs. T, U; see Dkt. No. 136 at 13; Dkt. No. 136-1 at 17-21.) The subpoenas seek all documents reflecting communications with Defendant Menowitz, Kenneth E. Chase, Aryeh Kaufman, and Zachary Slankard since January 1, 2011 (items 1-4). (Chase Decl., Exs. T, U.) They also seek all documents reflecting all communications with any person about Plaintiff (item 5); all documents relating to complaints of discrimination, harassment, or retaliation made against Defendants (items 6 and 7); all documents relating to every housing transaction worked on in any manner by Plaintiff (items 8); and all documents related to this lawsuit (item 9). (Id.)
Defendants contend that these subpoenas must be withdrawn because they were served on employees of Defendant ARA. (Dkt. No. 136 at 13; Dkt. No. 136-1 at 17, 19.) Defendants also contend that the subpoenas are overbroad, unduly burdensome, vague, facially defective, and seek privileged communications and irrelevant documents. (Dkt. No. 136 at 14; Dkt. No. 136-1 at 18-20.)
Plaintiff argues that the subpoenas are proper because Ms. Darner and Ms. Guei are not officers, directors, or managing agents of Defendant ARA, and thus a subpoena is required for production of documents. (Dkt. No. 155 at 5-6.) Plaintiff also contends that Defendants lack standing to quash any third-party subpoena on grounds other than privilege. (Id. at 4-5.)
The Court finds that Defendants' concerns about attorney-client privilege are sufficient to give them standing as to items 2 through 4. SeeCrispin, 717 F. Supp. 2d at 973-74; Cabell, 294 F.R.D. at 607-08. Communications made by employees to their employer's counsel, when acting as counsel and seeking information so that the employer can seek legal advice, are protected by attorney-client privilege. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 394-95, 101 S. Ct. 677, 685, 66 L. Ed. 2d 584 (1981). Because the subpoenas seek “all” communications with Defendants' counsel and the request is not limited to non-privileged communications, the subpoenas are QUASHEDas to items 2 through 4.
With respect to item 1, although the subpoena requests documents reflecting communications with Defendant Menowitz, Defendants do not raise any specific claim of privacy or privilege over these communications. Thus, the Court finds that Defendants lack standing to challenge this portion of the subpoenas. For the same reason, Defendants also lack standing as to items 5 through 9. See Playstudios, Inc. v. Centerboard Advisors, Inc., No. 2:18-CV-01423-JCM-NJK, 2019 WL 1995326, at *2-3 (D. Nev. May 6, 2019) (finding no standing to quash subpoenas served on a party's employees that sought documents and communications related to, inter alia, the employer's executives, business matters, and assessments of management competence and employee morale).
Accordingly, Defendants' Motion is DENIED as to items 1 and 5 through 9.
5. Subpoenas to Other Individuals
Plaintiff served subpoenas on Jon McLelland, Len Pall, Dawn Ricca, Ben Levine, Wendy Rolon, Tim Tucker, and Rich Miller. (Chase Decl., Exs. W, X, Y, Z, AA, BB, CC.)
Defendants object to the issuance of these subpoenas, but they do not explain who these third parties are or what privacy interests are implicated. (See Dkt. No. 136-1 at 22-33.) Defendants only state that the individuals are Defendant Menowitz's “professional colleagues and investors.” (Dkt. No. 136 at 14.)
Because Defendants lack standing to challenge these subpoenas, Defendant's Motion is DENIED with respect to these subpoenas.
D. Request for Order to Show Cause and Hearing
Defendants request that the Court issue an order to show cause and schedule a hearing, pursuant to the Court's April 30, 2019 order. (Dkt. No. 136 at 1; see Dkt. No. 131.) As the subpoenas at issue were served prior to the Court's April 30, 2019 order, this request is DENIED.
E. Attorneys' Fees and Costs
*6 Defendants request that Plaintiff pay Defendants' attorneys' fees and costs associated with the Motion. (Dkt. No. 136 at 14-15; Dkt. No. 160 at 10.) Because the Court grants Defendants' Motion only in part and denies the Motion in part, Defendants' request for attorneys' fees and costs is DENIED.
Plaintiff's request for attorneys' fees and costs (Dkt. No. 155 at 7-8) is also DENIED.
III. CONCLUSION
Defendants' Motion is GRANTED IN PART. The subpoena served on Audrey Yeboah is hereby QUASHED as to items 1 through 11. The subpoenas served on Suzanne Menowitz, Fred Menowitz, Todd Menowitz, and Lisa Hamburger are also QUASHED. The subpoenas served on Apolonia “Nonee” Darner and Helen Guei are QUASHED as to items 2 through 4.
Plaintiff is ORDERED to return any documents that were produced pursuant to these subpoenas and is ORDERED to destroy all additional copies in her possession, custody, or control. Further, Plaintiff is prohibited from using or disclosing the information contained in the documents. Counsel for Plaintiff shall file a declaration by June 13, 2019, stating whether any production has already occurred, and, if so, confirming that all documents and copies have been returned or destroyed.
Defendants' Motion is DENIED in all other respects.
IT IS SO ORDERED.


Footnotes

The Motion noticed a hearing on June 5, 2019. Although a supplemental memorandum to a joint stipulation may be filed no later than fourteen days prior to the hearing, see Local Rule 37-2.3, Defendants filed a motion, not a joint stipulation signed by both parties. Defendants' counsel indicated that Plaintiff's counsel did not respond to his meet and confer efforts or complete the proposed joint stipulation. (See generally Chase Decl., Dkt. No. 136-2.) Thus, Local Rules 6-1, 7-9, and 7-10 apply. SeeLocal Rule 37-2.4. Based on the noticed hearing date, any opposition was due by May 15, 2019. See Local Rule 7-9 (oppositions to motions are due “not later than twenty-one (21) days before the date designated for the hearing of the motion”). The failure to file an opposition by the deadline may be deemed consent to the granting of the motion. See Local Rule 7-12. The Court nevertheless declines to grant the Motion solely on this basis and addresses the arguments on the merits.
No documentation was provided for the subpoenas issued to LinkedIn or Leonard Pall.
Item 12's request for documents reflecting Ms. Yeboah's communications “with any person” about Plaintiff shall not include communications that would otherwise fall into the categories of items that the Court has ordered quashed.
Although the attached “joint stipulation” also addresses a subpoena to Internships.com (see Dkt. No. 136-1 at 15-17), the Motion challenges only the subpoena served on LinkedIn.