*1 On March 26, 2019, the parties filed a Joint Stipulation (“JS”) (ECF No. 39) with respect to defendant Hastings, Clayton and Tucker, Inc.'s (“Hastings” or “defendant”) Motion to Quash (“Motion” or “Mot.”) the subpoena issued by plaintiff Stiletto Television (“STV” or “plaintiff”) to Pacific Western Bank (the “Subpoena”), and request for sanctions. (ECF No. 38). The parties also filed the declaration of defendant's counsel, Ryan M. Lapine (“Lapine Decl.”) along with exhibits, and the declaration of plaintiff's counsel, Maxim Price (“Price Decl.”) along with exhibits. (ECF No. 38).

Having considered the pleadings and documents submitted in connection with the Motion, the Court has concluded that supplemental memoranda and oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for April 17, 2019, is ordered off calendar. See Local Rule 7-15.

By way of background, defendant states that it “is the producer and rightful copyright owner of multiple productions starring Barry Manilow, including [two] motion pictures” (the “Productions” or the “Works”). (JS at 2). Plaintiff filed this suit alleging copyright infringement “and claiming that STV is the rightful copyright owner of the Productions.” (Id.). The discovery cut-off date in this matter is tomorrow, March 29, 2019, and trial is set for August 20, 2019. (JS at 1, 2; Lapine Decl. Ex. C).

On March 15, 2019, defendant received notice of plaintiff's intent to serve Pacific Western Bank with a subpoena “demanding the production of every record associated with Hastings's bank accounts, ‘open or closed,’ related to any and all subject matter, persons, or transactions under the sun.” (JS at 2). Specifically, the subpoena demanded the production of the following (along with “five pages of definitions and instructions to be applied to the request for production”):

(JS at 11 (quoting Lapine Decl. Ex. A at 12)).

This action has been pending since May 10, 2018. On September 10, 2018, the District Judge issued an Order Re: Jury Trial (“Case Order”) (ECF No. 22) setting March 29, 2019 (the very date suggested by the parties in their Joint Initial Case Management Conference Statement (ECF No. 20)), as the discovery cut-off date. That Case Order also provides (as the parties also reflected in their Joint Initial Case Management Conference Statement (ECF No. 20 at 11)) that the discovery cut-off date “is not the date by which discovery requests must be served; it is the date by which all discovery, including all hearings on any related motions, is to be completed.” (ECF No. 22 at 2 (first emphasis added)). It also provides that “[a]ny 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.” (ECF No. 22 at 3 (emphasis added)). Finally, the text entry docketing the scheduling Order clearly states the following: “These dates and requirements are firm. The Court is very unlikely to grant continuances unless the parties establish good cause through a concrete showing. Failure to complete discovery in a timely manner does not constitute good cause ....” (ECF No. 22). Plaintiff states that on March 14, 2019, it made a motion to the District Judge to extend the discovery deadline, and that the parties have agreed “to conduct at least some additional discovery after the current deadline.”[1] (JS at 4).

*2 In this case, plaintiff did not serve the subpoena until March 15, 2019, two weeks prior to the discovery cut-off date, setting the production date as March 27, 2019 -- just two days prior to the cut-off date. (Lapine Decl. Ex. A). Defendant immediately commenced the Rule 37 meet and confer process regarding the sweeping scope of the subpoena and filed the JS on March 26, 2019 -- just one day before the scheduled production and three days prior to the discovery cut-off. This is exactly the sort of situation that the District Judge's Case Order was intended to avoid -- plaintiff did not serve the subpoena sufficiently in advance of the cut-off date to either leave defendant enough time to have a motion to quash or motion for protective order heard prior to the discovery cut-off date, or leave plaintiff itself enough time before the cut-off date to move to enforce the subpoena in the event that the third-party failed to comply. Indeed, with the hearing set for April 17, 2019, if the Court were to order any documents to be produced, this would occur weeks after the discovery cut-off date.

Under Rule 45, the non-party witness, or a party (such as defendant) claiming the information sought is privileged or otherwise protected, may move to modify or quash the subpoena under Rule 45, or move for a protective order under Rule 26(c). Based on the late issuance of the subpoena by plaintiff, defendant's Motion to quash is untimely. Federal Rule of Civil Procedure 26(c), however, governing the granting of a protective order, allows for such an order when the moving party establishes “good cause” for the order and “justice requires [a protective order] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....” Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court may sua sponte grant a protective order for good cause shown. See McCoy v. S.W. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. Nov. 7, 2002) (quoting Lesal Interiors, Inc. v. Resolution Tr. Corp., 153 F.R.D. 552, 558 n.4 (D.N.J. Jan. 11, 1994)).

Here, defendant contends that the “overwhelming majority” of the requested records have “absolutely nothing to do with this copyright dispute involving two Barry Manilow concerts that took place more than a decade ago,” and that the subpoena “lacked evidence of any effort to particularize the demand for the discovery of relevant, admissible evidence.” (JS at 2). On March 18, 2019, the parties met and conferred regarding the subpoena and Hastings offered to “accept limitations to the subpoena that would enable STV to procure Hastings' bank records related to the Productions without opening the vault” into all of its unrelated bank records. (Id.). Plaintiff agreed to limit the scope to the years between 2005 and 2009, but refused any other limitations. (Id.). Defendant contends that the parties are currently “embroiled in an unrelated state court action” and that the subpoena is a “wholly overbroad fishing expedition for use in the state court action.” (JS at 3). Defendant also argues that, under California law, it has a recognized privacy interest in nondisclosure of sensitive business and financial information. (JS at 7-8 (citations omitted)). It submits that its banking records include proprietary and sensitive information regarding its dealings and relationships with other persons, and include the private financial information of its sole shareholder, Garry Kief, as well as private financial information of artists that it works with, all of whom have “a robust right to privacy in their personal affairs and financial activities.” (JS at 8-10). Defendant notes that plaintiff “refused to reasonably narrow or circumscribe” the subpoena to seek only relevant documents, and asserts that plaintiff has “no interest in these materials, legitimate or otherwise.” (JS at 10).

Plaintiff states that it served Interrogatories on defendant on October 26, 2018, and that in its discovery responses served on February 22, 2019, defendant objected to Interrogatory number 6, which asked defendant to identify any profits and expenses that it made or incurred from the Productions and other works, and then responded with a list of expenses it had allegedly paid to produce and advertise one of the Works, including from its Pacific Western bank account. (JS at 4). Plaintiff states that its subpoena is limited to the time period when the Works were produced and shortly thereafter and that “Hastings placed payment [from its Pacific Western Bank] account at issue” as a “direct result of its response” to Interrogatory number 6. (JS at 4-5). Plaintiff states that during the meet and confer, it “not only offered to further limit the time period but also offered to remove from the scope of the subpoena any bank accounts that did not contain any transactions that could lead to the discovery of relevant information, such as accounts for other lines of business or personal accounts.” (JS at 5). Plaintiff argues that the protective order in this action will address defendant's privacy concerns and that defendant's response to Interrogatory number 6 opened the door to the banking records sought by the subpoena, especially in light of the fact that defendant has thus far refused to produce corporate records that are “solely within its control, including bank records,” giving plaintiff “little choice but to obtain those records directly” from the financial institution. (JS at 14-15). Plaintiff also asserts that the records “will provide insight” into at last three key disputes in this action: (1) whether certain accounts were used solely for the benefit of Hastings or STV or whether the assets of Stiletto Entertainment and STV were commingled by Gary Kief; (2) bank records associated with Hastings will show that Hastings' assertion that STV never had a bank account is false; and (3) Hastings' infringing sales and income from those sales are likely to be apparent from the bank records, and are relevant to STV's claim for damages. (JS at 15-16). Plaintiff disputes defendant's contention that the bank records contain any privileged or private information that cannot be adequately protected by the protective order issued in this action. (JS at 16-17). Finally, plaintiff asserts that it would be overly burdensome on Pacific Western Bank “to require the bank to sort through Hastings's records and pull specific subjects, names, and transactions related to the hundreds of individuals and companies and thousands of transactions involved in the production of the Works, especially as a protective order is in place to guard the privacy of transactions that may be deemed irrelevant after further review.” (JS at 17).

*3 The Court finds that the subpoena served on Pacific Western Bank was untimely pursuant to the Case Order in this action as it was not served sufficiently in advance of the cut-off date to permit a challenge to the production of documents, or for modifying or quashing the subpoena, if ordered, before March 29, 2019. The Court will not change, alter, or modify a deadline established by the District Judge. But as the Motion itself is also untimely under the Case Order, pursuant to Rule 26(c) the Court finds that good cause has been shown -- as the documents requested were not reasonably particularized and the subpoena on its face seeks vast amounts of information that is not relevant to any parties' claims or defenses and proportional to the needs of the case pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure -- and hereby issues a protective order “forbidding the discovery” sought by the subpoena, without prejudice to plaintiff later seeking reasonably particularized documents from Pacific Western Bank relevant to the parties' claims or defenses and proportional to the needs of the case should the District Judge grant plaintiff's motion to extend the cut-off date.

Defendant's Motion, including its request for sanctions, is denied as moot.