*1 On December 1, 2020, Defendant Walgreen Co. (“Defendant”), filed the operative Amended Notice of Motion and Motion to Compel Compliance with Subpoena to Wellcare Pharmacy and to Continue Plaintiff's Deposition (“Motion to Compel”) with a Joint Stipulation (“JS”), a Declaration of Leslie Helmer (“Helmer Decl”) with exhibits (“Helmer Ex.”), and a Declaration of Sean M. Novak (“Novak Decl.”) with exhibits (“Novak Ex.”). (Docket Nos. 28-30).[1] On December 8, 2020, Plaintiff Amira Saad (“Plaintiff” or “Ms. Saad”) filed a Supplemental Memorandum (“P. Supp. Memo”). (Docket No. 33). On the same date, Defendant filled a Supplemental Memorandum (“D. Supp. Memo”), with a Supplemental Declaration of Leslie Helmer (Helmer Supp. Decl.”). (Docket No. 34). The Motion to Compel is noticed for hearing before this Court on December 22, 2020.

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the Motion to Compel appropriate for decision without oral argument and submits the matter for decision. The hearing calendared for December 22, 2020 is hereby vacated and the matter taken off calendar. For the reasons explained below, the Court grants in part and denies in part the Motion to Compel.

II. BACKGROUND

On August 5, 2019, Plaintiff filed an employment action against the Walgreen, Co. and the Walgreen Family of Companies in the Los Angeles County Superior Court, asserting claims for physical disability discrimination, failure to provide reasonable accommodation for physical disability, failure to engage in the interactive process, retaliation, harassment, failure to take all reasonable steps to prevent discrimination, harassment, and retaliation, wrongful termination in violation of public policy, failure to provide overtime and wages when due, and praying for, among other things, general/special damages, loss of earnings/earning capacity, and punitive/exemplary damages. (Docket No. 1-1; Novak Decl. ¶ 2). On September 24, 2019, Defendant filed its Answer and asserted multiple affirmative defenses, including the failure to mitigate. (Docket No. 1-8). Defendants removed the action to this federal court on the basis of diversity jurisdiction on November 18, 2019, and the case was assigned to the Honorable Dale S. Fischer. (Docket Nos. 1, 6; Novak Decl. ¶ 4).[2]

On April 22, 2020, Judge Fischer issued an Order Re: Jury Trial (“Judge Fischer's Scheduling Order”) setting, among other dates, a discovery cut-off of July 28, 2020. (Docket No. 15; Helman Ex. 1; Novak Decl. ¶ 6). The Scheduling Order defined the discovery cut-off as the date by which all discovery, including all hearings on any related motions, is to be completed and directed that any motion challenging the adequacy of discovery responses must be filed, served and calendared sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date, if the motion is granted. Id. On July 21, 2020, Judge Fischer approved the parties' stipulation and, among other things, extended the discovery cut-off from July 28, 2020 to September 29, 2020. (Docket No. 19; Helman Ex. 2; Novak Decl. ¶¶ 9, 10).

*2 Meanwhile, on July 17, 2020, Defendant served Plaintiff with a Notice of Issuance of Subpoena, notifying Plaintiff of Defendant's intention to subpoena financial and business records from Wellcare Pharmacy, LLC (“Wellcare”). (Helmer Decl. ¶ 3; Helmer Ex. 4). A proof of service reflects that on July 21, 2020, Defendant's representative delivered a document subpoena (“Subpoena”) directed to the Custodian of Records of Wellcare, by personally serving Naila Houston, Secretary, at 8383 Wilshire Boulevard, Suite 634, Beverly Hills, CA 90211 – the address for Plaintiff's counsel in the instant action. (Helmer Decl. ¶ 3; Helmer Ex. 5).[3] The Subpoena called for Wellcare's Custodian of Records to produce specified records by not later than August 5, 2020. (Helmer Decl. ¶ 3; Helmer Ex. 5).[4] As of the execution of the Helmer Declaration on November 18, 2020, neither Plaintiff nor Wellcare had served Defendant with any written objections to the Subpoena. (Helmer Decl. ¶ 3).

*3 Between July 24, 2020 and September 9, 2020, Defendant's deposition agent contacted Wellcare and spoke with Plaintiff – assertedly the Custodian of Records for Wellcare – several times in an effort to obtain records from Wellcare. (Helmer Decl. ¶¶ 4 ¶, 10; Helmer Ex. 6). On September 9, 2020, Plaintiff advised Defendant's deposition agent that Plaintiff would bring records to her deposition, which was then scheduled to take place on September 17, 2020. (Helmer Decl. ¶ 4; Helmer Ex. 6).

On September 17, 2020, Plaintiff appeared for the remote deposition but it ultimately did not go forward and Plaintiff did not produce any records for Wellcare on such date. (Helmer Decl. ¶ 5).

On September 22, 2020, Defendant's counsel followed up with Plaintiff's counsel regarding the Wellcare records and asked that he produce the same prior to Plaintiff's deposition, which had been rescheduled for September 29, 2020. (Helmer Decl. ¶ 7; Helmer Ex. 8). Plaintiff's counsel responded that no document request to Plaintiff with regard to Wellcare was pending. (Helmer Decl. ¶ 7; Helmer Ex. 8). Defendant's counsel clarified that she was referring to the Subpoena and that it was her understanding the Plaintiff was the Custodian of Records for Wellcare and had not yet produced the Subpoenaed documents. (Helmer Ex. 8). Plaintiff's counsel stated his belief that Wellcare had served a timely objection, and noted that Defendant had not met and conferred with Wellcare and that the deadline to do so had passed (in light of the September 29, 2020 discovery cut-off). (Helmer Ex. 8).

On September 23, 2020, this action was transferred to District Judge Stanley Blumenfeld, Jr. (Docket No. 21).

On September 25, 2020, Defendant's counsel sent Plaintiff's counsel a Local Rule 37-1 meet and confer letter indicating that Defendant was writing in a “final effort” to obtain compliance with the Subpoena served on Plaintiff's business Wellcare. (Helmer Decl. ¶ 8; Helmer Ex. 9). Defendant enclosed a copy of the Subpoena with proof of service, and noted that since neither Plaintiff nor Wellcare had served objections, any objections had been waived. (Helmer Decl. ¶ 8; Helmer Ex. 9). On September 28, 2020, Plaintiff's counsel responded, advised that he did not formally represent Wellcare and accordingly was not obligated to meet and confer with Defendant on the Subpoena, and indicated that it was his understanding that Wellcare's legal representative (who was not identified) had served a timely objection to the Subpoena and that it was Plaintiff's obligation to meet and confer with that representative regarding any claimed lack of production in any capacity. (Helmer Ex. 10). Plaintiff's counsel further noted that Defendant's deposition demand to Plaintiff did not include a demand for document production, and that Plaintiff had no obligation to produce documents in the possession, custody or control of a separate legal entity (such as Wellcare) at her deposition or otherwise. (Helmer Ex. 10). On the same date, Defendant's counsel replied, indicating that it needed to meet and confer about a motion to compel compliance with the Subpoena, that since it was Defendant's understanding that Plaintiff is the Custodian of Records for Wellcare, Defendant was conferring with Plaintiff's counsel, but that if there was someone else Plaintiff's counsel believed it should be conferring with, to identify such person. (Helmer Ex. 11). Plaintiff's counsel responded that Plaintiff is not the Custodian of Records for the financial documents for the entity Wellcare but that, if Defendant “prepare[d] a meet and confer on the subpoena issue” Plaintiff's counsel could “ensure that it is reviewed by the appropriate parties.” (Helmer Ex. 11). Plaintiff's counsel did not, however, identify Wellcare's alleged legal representative. (Helmer Decl. ¶ 10; Helmer Ex. 11). Defendant again requested that Plaintiff's counsel identify the person whom he contended was the correct contact for Wellcare's Custodian of Records so that Defendant could contact such person and, absent Plaintiff's counsel's representation of such individual/entity declined Plaintiff's counsel's offer to serve as an intermediary. (Helmer Ex. 11).

*4 On September 29, 2020 – a date that was then the discovery cut-off – Defendant deposed Plaintiff for at least seven hours on the record. (Helmer Decl. ¶ 11; Novak Decl. ¶¶ 11, 19). During such deposition, Plaintiff testified to the following: Plaintiff set up Wellcare and registered it to do business in California. Plaintiff was the 100% owner and sole proprietor of Wellcare. A friend was then volunteering to work with her. She had been running Wellcare for twelve months. Plaintiff understood that Defendant had subpoenaed Wellcare to produce records it believed were related to this lawsuit. She had told “them” that she had the records but would not produce them unless her lawyer would “go over.” There was no lawyer that Defendant should be talking to who represents Wellcare with respect to the Subpoena. Plaintiff gave Wellcare records to her personal accountant. She has had no income of any kind in the last year since she began running Wellcare and has made nothing working for Wellcare. (Helmer Ex. 12 at 124-28, 134-35). Plaintiff also assertedly testified to the existence of text messages – that had not previously been identified or produced – that Plaintiff had exchanged with other employees of Defendant – including an employee who had reported to Plaintiff regarding the investigation that led to Plaintiff's termination. (Helmer Decl. ¶ 11).

On October 5, 2020, Judge Blumenfeld posted his original MSC Order which, like Judge Fischer's Scheduling Order, required discovery motions to be resolved by the discovery cut-off. (See Docket No. 31 at 1-2).

On October 7, 2020 – after the then September 29, 2020 discovery cut-off – counsel conferred and Plaintiff's counsel, notwithstanding the expiration of the discovery cut-off, assertedly agreed to produce that week Wellcare's financial records and the assertedly missing text messages between Plaintiff and her subordinate. (Helmer Decl. ¶ 12; Novak Decl. ¶¶ 12, 13). Notwithstanding the foregoing, Defendant received nothing further that week. (Helmer Decl. ¶ 13).

On October 9, 2020, Defendant filed an ex parte application for an order reopening discovery and continuing all dates. (Docket No. 22). On October 13, 2020, Plaintiff filed an opposition to such ex parte application (Docket No. 23) and served Defendant with “Plaintiff's Supplemental Disclosure Report Made Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure” (“Supplemental Production”) which included the assertedly missing text messages identified during Plaintiff's deposition and Wellcare's 2019 federal income tax return, the latter of which were sought by the Subpoena. (Helmer Decl. ¶ 13; Helmer Ex. 11; Novak Decl. ¶ 14). The Supplemental Production did not include supporting documentation of Wellcare's underlying revenues or expenses and provided no information regarding Wellcare's revenue or expenses for 2020. (Helmer Decl. ¶ 13). On or about October 15, 2020, Defendant received certified copies of Plaintiff's deposition transcript. (Helmer Decl. ¶ 11). On October 22, 2020, the District Judge granted the ex parte application and extended the discovery cut-off from September 29, 2020 to November 28, 2020, but observed that Defendant had not exercised full diligence in seeking the requested scheduling modification. (Docket No. 24; Helman Ex. 3; Novak Decl. ¶ 15).

On October 26, 2020, Judge Blumenfeld posted an updated version of his MSC Order which, like his original MSC Order and Judge Fischer's Scheduling Order, requires discovery motions to be resolved by the discovery cut-off (i.e., November 28, 2020). (See Docket No. 31 at 1).

On November 2, 2020, counsel again conferred telephonically. (Helmer Decl. ¶ 14; Novak Decl. ¶ 16). Plaintiff's counsel assertedly voiced no objection to the substance of the Subpoena with the sole exception of the request for bank account records – item iii in the Subpoena. (Helmer Decl. ¶ 14). Plaintiff's counsel further indicated that Plaintiff had provided her accountant and/or Wellcare's accountant with all of the underlying financial records supporting the figures in the 2019 tax return and stated he would have no objection if Defendant subpoenaed the accountant. (Helmer Decl. ¶ 14; Novak Decl. ¶ 17; Novak Ex. A). Defendant agreed to withdraw the request for Wellcare's bank account records and stated Defendant's intention to subpoena Plaintiff's accountant for the underlying financial records used to prepare Wellcare's 2019 tax return. (Helmer Decl. ¶ 14).

*5 Following the November 2, 2020 meet and confer, Defendant assertedly issued a document subpoena to Plaintiff's tax preparer. (Helmer Supp. Decl. ¶ 2).[5] Defendant's counsel also reviewed Plaintiff's deposition testimony (which, as previously indicated had been received more than two weeks earlier on or about October 15, 2020) and noted that Wellcare had only started doing business in October 2019, despite registering to do business in September 2018. (Helmer Decl. ¶ 15). On November 3, 2020, Defendant wrote to Plaintiff's counsel, requesting that Plaintiff produce Wellcare's financial records for 2020, as the 2019 records assertedly were unlikely accurately to reflect Wellcare's performance to date. (Helmer Decl. ¶ 15; Helmer Ex. 13). On the same date, Plaintiff's counsel indicated that he would provide a formal response shortly and noted that Defendant's deadline to file a motion to compel had expired. (Helmer Ex. 13; Novak Ex. A). Plaintiff apparently did not provide the indicated formal response to Defendant. (Helmer Decl. ¶ 15; Helmer Ex. 13).

On November 10, 2020, Defendant followed up with Plaintiff's counsel regarding the 2020 Wellcare records, indicated that it would file a motion to compel if Plaintiff did not respond and that Fed. R. Civ. P. 37 assertedly had no deadline, and asserted in the same communication that it had not received any written objections to the Subpoena, and that Plaintiff had not objected to the Subpoena other than its request for Plaintiff's bank records which had been resolved. (Helmer Ex. 13; Novak Ex. A). On the same date, Plaintiff responded, indicating that Defendant had mischaracterized the parties' meet and confer, and that it had been agreed that the tax returns produced were sufficient and that Plaintiff had no additional documents. (Helmer Ex. 13; Novak Ex. A). Plaintiff's counsel further correctly pointed out that any motion to compel would be untimely under Judge Blumenfeld's MSC Order. (Helmer Ex. 13; Novak Ex. A).

On November 23, 2020, Defendant received an initial response to the subpoena directed to Plaintiff's tax preparer. (Helmer Supp. Decl. ¶ 2). The tax preparer's production consisted of Plaintiff's personal income tax returns. (Helmer Supp. Decl. ¶ 2). After additional communications between Defendant's counsel and Plaintiff's tax preparer, the latter produced a profit and loss statement, transaction report, and balance sheet for Wellcare limited to such entity's 2019 business operations. (Helmer Supp. Decl. ¶ 2). It is Defendant's understanding that Plaintiff's tax preparer does not have 2020 records for Wellcare in its possession, custody or control. (Helmer Supp. Decl. ¶ 2). As of the execution of the Supplemental Helmer Declaration on December 8, 2020, Defendant had received no further production of Wellcare business and financial records from any source and had never received any Wellcare records for 2020. (Helmer Supp. Decl. ¶ 3).

On November 25, 2020, Defendant filed an “Ex Parte Application to Extend Discovery Cut-Off to Permit Consideration of Its Motion to Compel Compliance with Subpoena to Wellcare Pharmacy and to Continue Plaintiff's Deposition” (“Ex Parte Application”) (Docket No. 25). The Ex Parte Application used the term “Motion to Compel” as a shorthand reference to its “Motion to Compel Compliance with Subpoena to WellCare Pharmacy and to Continue Plaintiff's Deposition[.]” (Docket No. 25 at CM/ECF Page 2 of 18 & Page 8 of 18). On November 27, 2020, Plaintiff filed an opposition to such ex parte application. (Docket Nos. 26). On November 30, 2020, the District Judge granted in part and denied in part the ex parte application. (Docket No. 31). After observing that Defendant's counsel's failure to read the MSC Order was not indicative of diligence, the District Judge granted the ex parte application and continued the discovery cut-off from November 28, 2020 “to January 13, 2021 for the limited purpose of allowing judicial consideration of [Defendant's] motion to compel.” The District Judge denied the ex parte application “to the extent [Defendant] [sought] any additional relief[.]” (Docket No. 31).

III. DISCUSSION AND ORDERS

*6 In its Motion to Compel Defendant essentially requests that the Court (1) compel Ms. Saad – in her asserted capacity as the Custodian of Records for Wellcare – to produce documents responsive to the Subpoena; and (2) compel Ms. Saad – in her capacity as Plaintiff – to appear for a further deposition. Plaintiff opposes the Motion to Compel, arguing (1) it is untimely; (2) it is moot; (3) Defendant failed to meet and confer with Wellcare representatives regarding the Subpoena (4) Defendant is not entitled to conduct a further deposition of Plaintiff because Defendant has already deposed Plaintiff for at least seven hours, was not efficient in its use of time, had a full opportunity to examine Plaintiff on all issues, and seeks to further depose Plaintiff solely to harass Plaintiff and her counsel; and (5) Defendant has “unclean hands” and has refused to cooperate with Plaintiff in discovery by refusing to produce witnesses for timely and properly noticed depositions.

First, in light of the District Judge's November 30, 2020 Order, the Court rejects Plaintiff's arguments regarding the untimeliness of the Motion to Compel. To the extent Plaintiff suggests that the District Judge's November 30, 2020 Order allows the Magistrate Judge to consider only the portion of the Motion to Compel which is directed to the Wellcare Subpoena and does not allow consideration of the portion which seeks a further deposition of Plaintiff, the Court disagrees. As noted above, the Ex Parte Application used the term “Motion to Compel” as a shorthand reference to its “Motion to Compel Compliance with Subpoena to WellCare Pharmacy and to Continue Plaintiff's Deposition” and this Court reads the District Judge's reference to “motion to compel” to encompass both the portion of the Motion to Compel which is directed to the Wellcare Subpoena and the portion of the Motion to Compel which seeks a further deposition of Plaintiff.

Second, the Court rejects Plaintiff's suggestion that the Motion to Compel is moot to the extent it is addressed to the Wellcare Subpoena. As detailed above, although Plaintiff has produced certain 2019 financial records relating to Wellcare, the Subpoena calls for the production of more than just such 2019 records and indeed, Defendant focuses primarily on records for the year 2020 which have not been provided.

Third, based on the current record, the Court finds Defendant's meet and confer efforts to be adequate, or to the extent deficient, excuses such deficiency and finds no due process violation relative to its efforts to enforce the Subpoena. In light of Plaintiff's deposition testimony regarding her role vis-a-vis Wellcare (i.e., sole owner, no employees) and its lack of counsel, her apparent receipt/knowledge of the Subpoena as evidenced by her deposition testimony and records of Defendant's deposition agent, the Rules of Professional Conduct (see supra note 3), and the absence of any timely or written objection to the Subpoena/its manner of service or the filing of a motion to quash (see Fed. R. Civ. P. 45(d)(2)(B), 45(d)(3)), the Court finds that Wellcare has waived any objections to the Subpoena/its form/manner of service, that Plaintiff has likewise waived any objections to the Subpoena, that – notwithstanding Plaintiff's counsel's protestations to the contrary – Ms. Saad is Wellcare's Custodian of Records for all practical purposes, has possession, custody or control of Wellcare's records, and is the person best positioned to determine the existence and location of the documents called for by the Subpoena.

Fourth, in light of the foregoing, the Motion to Compel is granted in part and denied in part to the extent it seeks to compel Ms. Saad to produce documents in her possession, custody or control responsive to the Subpoena. To the extent Plaintiff has not already done so in a prior production, Ms. Saad – in her capacity as the Custodian of Records of Wellcare – is ordered to produce all documents called for by the Subpoena in Ms. Saad's/Wellcare's possession, custody or control except Wellcare's bank account records (item iii in the Subpoena which Defendant agreed to withdraw), by not later than January 4, 2021.[6]

*7 Finally, the Court grants in part and denies in part the Motion to Compel to the extent it seeks to compel a further deposition of Plaintiff, authorizes Defendant to notice and conduct a further remote deposition of Plaintiff for not more than four additional hours, exclusive of reasonable breaks to take place by not later than January 13, 2021 and directs Plaintiff to remotely appear for the same.[7] The Court has closely reviewed the parties' submissions/the record in connection with Plaintiff's initial aborted deposition on September 17, 2020 and actual deposition on September 29, 2020. Suffice to say that the parties have vastly different views regarding such proceedings and the manner in which they have engaged with one another has been less than ideal.[8] The Court grants four – not seven – additional hours to Defendant to depose Plaintiff because it views such additional time – but no more – to be consistent with Rule 26(b)(1) and 26(b)(2) in light of the scope of Plaintiff's allegations/claims and the length of her employment with Defendant and does not view such further deposition to be sought for purposes of harassment. See Fed. R. Civ. P. 30(a)(2)(A)(ii). To the extent Plaintiff's counsel has an objection to any question posed at such deposition, he shall simply state the legal ground(s) for such objection (and, absent a question calling for privileged information as to which an instruction not to answer may be appropriate), then allow the witness to answer as best she can. Counsel for both sides are directed to make all efforts to have this deposition proceed efficiently and are admonished to refrain from engaging in irrelevant colloquy, personal commentary, and discussion of other litigation in which they may have been involved.

IT IS SO ORDERED.

On November 30, 2020, Defendant filed a prior version of such motion which has been withdrawn and superseded by the above-discussed version. See Docket Nos. 27, 32.

The Novak Declaration reflects that the action was removed on or about September 25, 2019, but the docket reflects that it was removed on November 18, 2019. Compare Novak Decl. ¶ 3 with Docket No. 1.

The Court takes judicial notice of public records of the California Secretary of State – accessible via businesssearch.sos.ca.gov – which reflect that Amira Saad – Plaintiff in the instant action – at the address 17530 Hawthorne Blvd., Torrance, CA 90504, has been Wellcare's registered agent for service of process at all pertinent times. The Court surmises that Defendant delivered the Subpoena to counsel for Ms. Saad in the instant action – rather than delivering a copy to Ms. Saad at the Hawthorne address (see Fed. R. Civ. P. 45(b)(1)) to avoid running afoul of Rule 4.2 of the California Rules of Professional Conduct (generally prohibiting lawyer from communicating with person represented by another lawyer about subject of representation absent other lawyer's consent). Plaintiff's counsel represents that he is not Wellcare's counsel (Helmer Ex. 12 at 126). Wellcare apparently is not represented by counsel in this matter (Helmer Ex. 12 at 128), and may not appear pro se. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993) (corporations, partnerships, and associations may not appear in federal court other than through a licensed attorney); D-Beam Ltd. Partnership v. Roller Derby Skates, Inc., 366 F.3d 972, 973-74 (9th Cir. 2004) (corporations and other unincorporated associations, including limited liability partnerships must appear in court through an attorney); Securities and Exchange Commission v. Pacheco, 2020 WL 5100844, *2 (C.D. Cal. Apr. 3, 2020) (limited liability companies cannot proceed pro se in federal action) (citing Osgood v. Main Streat Mktg., LLC, 2017 WL 7362740, *2 (S.D. Cal. Mar. 27, 2017) (explaining that a limited liability company may not proceed without counsel in federal court)); see also Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007) (“[A] limited liability corporation ... may appear in federal court only through a licensed attorney.”).

More specifically, the Subpoena essentially called for Wellcare to produce the following documents in its possession, custody or control: (i) all agreements between the parties, any party's agreement with Wellcare, and agreements concerning Wellcare; (ii) all of Wellcare's meeting minutes and notes taken concerning the meeting minutes; (iii) all of Wellcare's bank account records; (iv) all of Wellcare's tax returns; (v) All K-1s issued by Wellcare; (vi) a listing of all contributions made to Wellcare, including who paid the contributions, the date and the amounts; (vii) a listing of all distributions made by Wellcare, including payee, dates and amounts (item vii); (viii) Wellcare's annual profit and loss statements to record revenue and expenses; (ix) Wellcare's annual balance sheets to record assets, liabilities and equity; (x) annual reconciliation of the equity in Wellcare as a whole and for each individual with an ownership interest in Wellcare; (xi) for any refinances, the final closing statements of the refinance and details regarding the disbursements of loan funds; (xii) a listing of all capital expenditures made to the properties owned or held by Wellcare, the amounts paid, dates paid, the payee and payor; (xiii) all communications between Wellcare and any of the parties in this litigation concerning Wellcare; (xiv) all communications between Wellcare and any brokers, real estate agents, and escrow officers concerning any property Wellcare holds interest and/or title to; and (xv) communications between Wellcare and Sean Novak and/or the Novak Law Firm, P.C. concerning the entity Wellcare. (Helman Ex. 4).

Plaintiff's counsel attests that as of his execution of the Novak Declaration on November 30, 2020, Defendant had not issued a subpoena to the tax preparer. (Novak Decl. ¶ 18).

Although the instant matter involves a subpoena and not Fed. R. Civ. P. 34 document requests, the Court views the case law under Fed. R. Civ. P. 34 to be instructive regarding what documents are in a party's possession, custody or control, and finds such authorities to be equally applicable to determining what a subpoenaed party's obligations are in responding to a subpoena and what items are in a subpoenaed party's possession, custody or control. “[F]ederal courts have consistently held that documents are deemed to be within [a party's] ‘possession, custody or control’ for purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995) (emphasis original, citations omitted), cert. dismissed, 517 U.S. 1205 (1996); see also United States v. International Union of Petroleum and Industrial Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (“Control is defined as the legal right to obtain documents upon demand.”). Accordingly, a party has an obligation to conduct a reasonable inquiry into the factual basis of its responses to discovery, National Association of Radiation Survivors v. Tunnage, 115 F.R.D. 543, 554-56 (N.D. Cal. 1987), and, based on that inquiry, “[a] party responding to a Rule 34 production request ... ‘is under an affirmative duty to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.’ ” Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted); see also Milner v. National School of Health Technology, 73 F.R.D. 628, 632 (E.D. Pa. 1977) (If a party is a corporation or other entity, information in the hands of its agents and others within its control must be supplied); A. Farber & Partners v. Garber, 234 F.R.D. 186, 189-90 (C.D. Cal. 2006) (a party must make reasonable inquiry of such agents/third parties to ensure that it has produced all documents in its possession, custody and control).

Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. Fed. R. Civ. P. 30(d)(1). A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) (governing the scope of discovery) and 26(b)(2) (governing limitations on the frequency and extent of discovery) if the parties have not stipulated to a deposition and the deponent has already been deposed in the case. Fed. R. Civ. P. 30(a)(2)(A)(ii).

The Court is not persuaded that Defendant's asserted “unclean hands”/refusal to cooperate with Plaintiff in discovery affords a basis upon which to deny Defendant a further deposition of Plaintiff. Discovery is not conducted on a tit-for-tat basis. See National Academy of Recording Arts & Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 680-81 (C.D. Cal. 2009). Plaintiff obviously could have sought court intervention for any perceived discovery violations as Defendant has done but presumably elected not to do so for Plaintiff's own reasons.