*1 On December 28, 2023, plaintiff Citizens Business Bank filed motions to compel third parties Alta Farms LLC (“Alta”), A&L Partida, LLC (“A&L”), and Jose Partida (“Partida”) (together, the “subpoenaed parties”) to produce documents in compliance with plaintiff's Rule 45 subpoenas duces tecum, and for the court to issue an order to show cause why a contempt citation should not issue and why the subpoenaed parties should not be required to reimburse plaintiff's attorney fees and costs incurred in drafting these motions. Docket nos. 46, 47, 48. Plaintiff's motions are supported by the declarations of Ketajh Brown (“Brown Decls.”) and exhibits.[1] Docket no. 46-1, 47-1, 48-1. The subpoenaed parties did not oppose the motions to compel. Plaintiff filed a supplemental memorandum on January 16, 2024. Docket no. 62.

The court found a hearing on the motion would not be of assistance, and so vacated the hearings scheduled for January 30, 2024. The court now grants plaintiff's motions to compel compliance with the subpoenas but denies plaintiff's request for an order to show cause, for the reasons that follow.

On August 19, 2022, plaintiff filed a complaint against defendant alleging misappropriation of trade secrets, intentional interference with contractual relations, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage, and unfair competition following plaintiff's acquisition of Suncrest Bank in January 2022.

On August 11, 2023, plaintiff served subpoenas pursuant to Rule 45 of the Federal Rules of Civil Procedure on Alta, A&L, and Partida. Brown Decls. ¶ 4, Ex. 1. The subpoenas commanded Alta, A&L, and Partida, by September 1, 2023, to produce documents responsive to 20 discovery requests, which may be divided into three categories: (1) documents and communications between the subpoenaed parties and defendant; (2) documents and communications between the subpoenaed parties and 11 specified former employees of plaintiff; and (3) communications between the subpoenaed parties and any parties related to any account or business that the customer contemplated opening with plaintiff but ultimately opened with defendant. Id., Ex. 1. Alta, A&L, and Partida did not produce any documents, respond to the subpoenas, or move to quash or for a protective order. Id. ¶ 5.

On November 27, 2023, pursuant to Local Rule 37-1, plaintiff sent letters to Alta, A&L, and Partida requesting that they comply with the subpoenas by contacting plaintiff to discuss the document production or producing the documents as instructed by December 1, 2023. Id. ¶ 6, Ex. 2. Alta, A&L, and Partida did not respond to the November 27, 2023 letter or produce any documents. Id. ¶ 7.

A. The Subpoenaed Parties Must Produce All Documents Responsive to Plaintiff's Subpoenas

*2 Plaintiff seeks an order compelling Alta, A&L, and Partida to produce all documents responsive to the Rule 45 subpoenas served on them on August 11, 2023. Docket nos. 46, 47, 48.

Federal Rule of Civil Procedure Rule 45 permits a party to serve a subpoena commanding a nonparty to produce and permit inspection or copying of documents and electronically stored information. Fed. R. Civ. P. 45(a)(1)(D). Rule 45 subpoenas must meet the same requirements applicable to any discovery sought because “[t]he scope of discovery [sought] through a subpoena under Rule 45 is the same as the scope of discovery permitted under Rule 26(b).” Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V., 123 F. Supp. 3d 1215, 1217 (N.D. Cal. 2015) (citation omitted); ATS Prods., Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 527, 530 (N.D. Cal. 2015) (citing the Advisory Committee Notes to Rule 45). Rule 26(b) allows a party to obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1).

The nonparty served with the subpoena must make any objections to it within 14 days after service, or before the time for compliance if less than 14 days. Fed. R. Civ. P. 45(d)(2)(B). “A nonparty's failure to timely make objections to a Rule 45 subpoena ... generally requires the court to find that any objections have been waived.” Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (citations omitted). But “[i]n unusual circumstances and for good cause, ... the failure to act timely will not bar consideration of objections [to a Rule 45 subpoena].” McCoy v. Sw. Airlines Co., Inc., 211 F.R.D. 381, 385 (C.D. Cal. 2002). “[A] court determining the propriety of a [Rule 45] subpoena balances the relevance of the discovery sought, the requesting party's need, and the potential hardship to the party subject to the subpoena.” ATS Prods., Inc., 309 F.R.D. at 531 (citation omitted).

Objection to a subpoena does not relieve a nonparty of its obligation to comply with the subpoena. See Franco v. Alorica Inc., 2021 WL 6104816, at *3 (C.D. Cal. Nov. 5, 2021). Instead, the nonparty may move to quash or modify the subpoena before the requested date for production under Fed. R. Civ. P. 45(d)(3). See id. The objecting person may also seek a protective order under Rule 26(c), which requires a showing of “good cause ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c); U.S. v. King Cnty., Wash., 2022 WL 16835866, at *3 (W.D. Wash. Nov. 9, 2022); see also Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1322-23 (Fed. Cir. 1990) (outlining a nonparty's options in responding to a subpoena).

Here, Alta, A&L, and Partida were served with the subpoenas on August 11, 2023 and commanded to produce the responsive documents by September 1, 2023. Brown Decls. ¶ 4, Ex. 1. Alta, A&L, and Partida did not produce responsive documents, file any written objections, move to quash the subpoenas, or move for a protective order. Id. ¶ 5. Alta, A&L, and Partida similarly failed to respond in any way to plaintiff's November 27, 2023 letter requesting compliance with the subpoenas by December 1, 2023. Id. ¶¶ 6-7, Ex. 2. As such, the court finds the subpoenaed parties have waived any grounds for objections. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”).

*3 Moreover, the subpoenaed parties failed to oppose the instant motions to compel by the January 8, 2024 deadline (see L.R. 7-9), or at all, and as such may be deemed to have consented to the granting of the motion. See L.R. 7-12. Given that Alta, A&L, and Partida have waived any objections to the subpoenas and ignored plaintiff's requests for production without any excuse despite being given substantial time to comply, plaintiff's motion to compel is plainly justified. The court therefore grants plaintiff's motions to compel the subpoenaed parties to produce all documents in their possession, custody, or control responsive to the subpoenas.

B. An Order to Show Cause Is Premature

Plaintiff also moves for an order to show cause, which would require the subpoenaed parties to show cause why a contempt citation should not be issued and why they should not be required to reimburse plaintiff for the attorney's fees and costs incurred in filing these motions to compel. Docket no. 46 at 2, 7; docket no. 47 at 2, 7; docket no. 48 at 2, 7.

“Rule 45 provides the only basis to sanction non-parties for failing to comply with a subpoena duces tecum.” Beverly v. Interior Elec. Inc. Nevada, 2023 WL 355692, at *1 (9th Cir. Jan. 23, 2023); Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983). Rule 45 provides that a court may hold in contempt a person who fails without adequate excuse to obey a subpoena or order related to it, “but it does not independently provide for the award of attorneys' fees as a sanction.” Beverly, 2023 WL 355692 at *2 (citing Fed. R. Civ. P. 45(g)). As such, a court may not impose sanctions against a non-party under Rule 45 until after a contempt finding, notice, and an opportunity to be heard. Id.; see also In re Plise, 506 B.R. 870, 879 (Bankr. 9th Cir. 2014) (before sanctions can be awarded, “the requesting party must first file a motion for contempt[ ] and the subpoenaed party must be found to be in contempt”).

Plaintiff's request for an order to show cause why a contempt citation should not be issued and attorney's fees awarded is premature at this time, given that the court is just now ordering compliance with the subpoenas. Nevertheless, the court appreciates plaintiff's frustration given the apparent lack of any legitimate basis for the subpoenaed parties to have ignored the subpoenas and plaintiff's efforts to discuss the matter. The court cautions the subpoenaed parties that if they fail to comply with the court's order, they may be found in contempt and subject to sanctions. Should the subpoenaed parties be found in contempt, plaintiff will be required to submit a declaration or other evidence establishing the amount of time plaintiff's counsel spent in drafting these motions and any other basis for the monetary sanctions requested.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motions to compel (docket nos. 46, 47, 48) are granted to the extent set forth above. Alta, A&L, and Partida are ordered to promptly produce all documents responsive to the subpoenas, and by no later than February 9, 2024.