*1 Before the Court is Plaintiff Brianna Arredondo's Motion to Quash Defendant University of La Verne's (“Defendant” or “La Verne”) Subpoenas to Third-Parties Brigham Young University (“BYU”) and Mount San Antonio College (“MSAC”), which was originally filed on October 20, 2021. (Dkt. No. 65.) After Plaintiff withdrew her initial motion, the parties asked the Court to hold an informal discovery conference on the matter, which took place on November 16, 2021. (Dkt. Nos. 66, 69.) Thereafter, the Court invited Plaintiff to file a letter brief if she still intended to move to quash the subpoenas. See Dkt. No. 80. On November 18, 2021, Plaintiff filed a letter brief, in which she moves to quash (“Pl's Brief”). Dkt. No. 82. On November 19, 2021, Defendant filed a letter brief opposing the motion (“Def's Brief”). (Dkt. No. 83.) For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion.

I. INTRODUCTION

On August 23, 2020, Plaintiff commenced this suit against Defendant. (Dkt. No. 1.) On February 22, 2021, Plaintiff filed a Second Amended Complaint (“SAC”), on behalf of a putative class of all persons who paid tuition and/or fees to attend La Verne in person in the spring 2020 semester but who had their course work moved to online-only instruction. (Dkt. No. 44 at 2.) Plaintiff raised claims for breach of contract, unjust enrichment, and conversion and theft of property. (Id. at 23-29.)

On April 21, 2021, the District Judge granted Defendant's motion to dismiss as to Plaintiff's unjust enrichment and conversion and theft of property claims but denied the motion as to her breach of contract claim. (Dkt. No. 50.) On November 8, 2021, Plaintiff filed a motion for class certification. (Dkt. No. 70.) On that same day, Defendant moved to dismiss the action, which Plaintiff has opposed. (Dkt. Nos. 71, 78.) Those motions remain pending.

At issue before the Court are subpoenas that Defendant served on BYU, where Plaintiff took online classes during the 2020 summer semester, and MSAC, where Plaintiff obtained her associate's degree, on October 5 and 6, 2021.[1] (Pl's Brief at 1; Def's Brief at 1.) The subpoenas contained the following document requests that remain in dispute between the parties[2]:

(Dkt. No. 65-3 at 4-5.)

II. LEGAL STANDARDS

Federal Rule of Civil Procedure (“Rule”) 45 governs discovery of nonparties by subpoena. “On timely motion, the court for the district where compliance is required must quash or modify a subpoena that ... [among other things] requires disclosure of privileged or other protected matter, if no exception or waiver applies[ ] or ... subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). “To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires” disclosing certain other protected information. Fed. R. Civ. P. 45(d)(3)(B). Furthermore, subpoenas under Rule 45 are subject to the same scope of the 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).

Under 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] the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

III. DISCUSSION

*3 As a preliminary matter, the Court finds that Plaintiff has standing to move to quash Defendant's subpoenas. Generally, “a party may not quash a subpoena served upon a non-party on any grounds other than privilege.” Televisa, S.A. de C.V. v. Univision Comms, Inc., 2008 WL 4951213, at *1 (C.D. Cal. Nov. 17, 2008). Here, because the subpoenas at issue plainly seek Plaintiff's personal information, Plaintiff has standing to challenge their scope. See, e.g., Bryant v. Shaeffer, 2015 WL 545934, at *3 (E.D. Cal. Feb. 10, 2015); Shinedling v. Sunbeam Prods. Inc., 2013 WL 12142949, at *2 (C.D. Cal. July 9, 2013). Defendant does not contend otherwise.

Plaintiff contends that the subpoena document requests at issue should be quashed because they seek information that is not relevant to her breach of contract claim, which concerns only the Spring 2020 semester at La Verne, and that they needlessly invade her privacy.

Defendant counters that its subpoena requests seek information that is relevant to Plaintiff's qualifications as the putative class representative and to her claims for damages.

The Court agrees with Defendant that it is entitled to some of the requested documents but finds that several of the requests attached to the subpoena are irrelevant and/or overbroad, as follows.

A. Document Request Nos. 4, 9, and 10

Defendant contends that these requests for information about Plaintiff's admissions applications, pre-registration or admission screenings and/or background checks, and disciplinary records seek information that is relevant to “Plaintiff's personal history and qualifications to be Class Representative.” (Def's Brief at 4.)

Under Federal Rule of Civil Procedure 23(a), as relevant here, a district court may certify a class only if “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and [¶] (4) the representative parties will fairly and adequately protect the interests of the class.” Defendant thus argues that it is entitled to discover any personal information that may call into question Plaintiff's ability to fairly and adequately protect the interests of the class, both in order to support its opposition to Plaintiff's class certification motion and to prevent a later collateral attack on any judgment that is rendered in this case. (Def's Brief at 2-3.)

Plaintiff contends that the “key inquiry into the fitness of a class representative” with respect to the “adequacy” component of Rule 23 should be limited to identifying conflicts of interest and the “vigorousness of potential representation.” (Pl's Brief 3-4, citing, inter alia, Kalmbach v. National Rifle Association of America 2018 WL 2411753 (W.D. Wash. May 29, 2018).) She argues that none of Plaintiff's document requests are relevant to this inquiry.

The Court finds the district court's decision in Kalmbach instructive. In that case, the district court denied the defendants' motion to compel discovery responses that purportedly would have uncovered the plaintiff's fraud or improper handling of an estate with the aim of demonstrating that she was unfit to act as a class representative in a case alleging the receipt of unwanted precorded telephone calls, concluding that, “[a]lthough the fitness of a class representative is a relevant topic of discovery ... there is a limit. The key questions for fitness are conflicts of interest with other class members and vigorousness of potential representation.” Id. at *2. See also Torres v. Air to Ground Servs., Inc., 300 F.R.D. 386, 401 (C.D. Cal. 2014) (“An examination of adequate representation consists of two questions: ‘1) [d]o the representative plaintiffs and their counsel have any conflicts of interest with other class members[;] and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?’ ”) (citing Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003)).

*4 The Court acknowledges that the case at bar presents a closer question than the district court faced in Kalmbach. Here, Plaintiff seeks to represent a class action involving Defendant's alleged breach of a contract with students and Defendant's requests seek background information about Plaintiff's application and academic record. The Court also recognizes that any records indicating, for example, that Plaintiff has a criminal record might undermine her credibility in general. Nevertheless, the Court finds that these possibilities are no more than speculative at this time and, thus, insufficient to warrant compelling discovery of the requested personal information. See Torres, 300 F.R.D. at 401 (overruling the defendants' argument that the plaintiff's alleged lack of credibility based on a prior criminal conviction rendered him inadequate to act as class representative).

Additionally, to the extent that Plaintiff's admission applications might shed light on her background, the Court observes that Defendant should already be in possession of Plaintiff's application to study at La Verne and any materials submitted in support of or related to that application. For these reasons, the Court GRANTS Plaintiff's motion to quash the subpoenas with respect to document request numbers 4 and 9.

The Court finds, however, that document request number 10, which seeks Plaintiff's disciplinary records from BYU and MSAC, may result in Defendant obtaining information that is more directly relevant to Plaintiff's ability to fairly and adequately protect the interests of the class. As such, Plaintiff's motion to quash the subpoena is DENIED with respect to document request number 10.

B. Document Request Nos. 8, 11, 12, 17, and 20

Defendant contends that these requests for Plaintiff's attendance records, her student emails, and all communications between BYU or MSAC and Plaintiff regarding (1) her complaints or dissatisfaction with her educational experience; and (2) tuition and financial aid paid or received are relevant to her damages claims and/or possible bases for impeachment.

Plaintiff contends that these requests “seek documents and communications regarding her academic, attendance and disciplinary history at separate universities outside of the class period” and, therefore, are irrelevant to Plaintiff's claim for damages while she was a student at La Verne. (Pl's Brief at 3.)

Here, the Court sides with Defendant for the most part. Defendant has narrowed the scope of its request number 11 so as to seek only communications that involve complaints made by Plaintiff regarding her educational experience and the tuition and financial aid she paid or received. The Court finds that these topics, as well as those presented in document request numbers 8, 17, and 20 are at least arguably relevant to Plaintiff's damages claims and that the requests may lead to the discovery of evidence that might assist Defendant in refuting Plaintiff's damages theory. See, e.g., Charter School Capital, Inc. v. Charter Asset Management Fund, LP., 2015 WL 12655547, at *3 (C.D. Cal., Sept. 1, 2015).

The Court finds that document request number 12, which seeks all emails sent and received by Plaintiff on her school email accounts is impermissibly broad. In the interest of judicial economy, the Court deems it appropriate to modify the request rather than to quash it in its entirety. See Fed. R. Civ. P. 45(d)(3). At this time, with respect to document request number 12, Defendant is entitled to production only of “communications, including without limitation emails sent by and received by Plaintiff on her BYU/MSAC email accounts” that “relate to or concern (1) any complaints or expressions of dissatisfaction with her educational experience; and (2) her tuition and financial aid paid/received at these institutions,” i.e. the same narrowed scope as Defendant provided with respect to document request number 11.

C. Protective Order

*5 Plaintiff requests that the Court enter a confidentiality order so that any documents ordered to be produced from these Subpoenas be filed under seal until the parties submit a joint confidentiality agreement or protective order. (Pl's Brief at 5.) The Court will so order.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion. Defendant is entitled to receive records pursuant only to its document request numbers 2, 8, 10, 11, 12 (as narrowed, above), 17, 18, 19, 20, and 21. In the event that records contain information regarding other, unrelated issues, such information must be redacted. Any documents produced by these subpoena requests shall be marked “Confidential” and filed under seal until further order of the Court.

Defendant is hereby ORDERED to provide a copy of this order to the recipient of the subpoena, as this order shall govern document production in accordance with the subpoena. Defendant shall promptly return or destroy any documents already received that are beyond the permissible scope of the subpoena as defined by this order.

IT IS SO ORDERED.

The document requests in the subpoena for MSAC are identical, other than substituting “Mount San Antonio College” for “BYU” and, in request numbers 20 and 21, substituting “while attending Mount San Antonio College” in place of “for her 2020 Summer Term tuition” and “for classes taken at BYU during the 2020 summer term.” (Compare Dkt. No. 65-3 at 4-5 with Dkt. No. 65-4 at 3-4.)

Defendant has withdrawn subpoena document request numbers 1, 3, 5, 6, 7, 13, 14, and 15. (Def's Brief at 3-4.) Additionally, Defendant accepts that document request number 16 is subsumed within request number 11. (Id. at 4.) Finally, Plaintiff states that she is willing to accept document request numbers 2, 18, 19, and 21, “assuming protections are put in place” to maintain the confidentiality of the documents. (Pl's Brief at 4, 5.)

After service of the subpoenas, Defendant narrowed the scope of document request number 11 as set forth here. (Def's Brief at 4.)