I. SUMMARY

*1 On April 9, 2024, Plaintiffs Leprino Foods Company and Leprino Foods Health & Welfare Plan (collectively, “Plaintiffs”) filed a Motion to Compel Compliance with 30(b)(6) Deposition Subpoena for Appearance and Production of Documents from Third-Party Arti Enterprises, Inc. (“Motion to Compel”).[1] Plaintiffs essentially seek an order directing non-party Arti Enterprises, Inc. (“Arti”) to produce a witness and documents responsive to a subpoena and directing Arti and its current counsel, jointly and severally, to pay the fees and costs incurred by Plaintiffs in connection with enforcing compliance with the subpoena.[2] The Motion to Compel is set for a telephonic hearing before this Court on April 30, 2024 at 9:00 a.m.

Based upon the parties' submissions in connection with the Motion to Compel and the pertinent facts and law, and as detailed below, the Court is tentatively inclined to (1) grant in part and deny in part the Motion to Compel; (2) direct Arti to produce specified documents called for by the subpoena within twenty (20) days of the Court's final order on the Motion to Compel subject to potential cost-shifting for reasonable significant expenses resulting from compliance; (3) direct Plaintiffs to renotice and serve Arti with a deposition notice directing Arti to designate and produce a witness for deposition on July 11, 2024 at 9:30 a.m.; (4) direct Arti to designate, prepare, and produce a witness to testify regarding the specified subpoena topics as noticed at a deposition on July 11, 2024 at 9:30 a.m.; and (5) deny the Motion to Compel to the extent it calls for Arti to pay the fees/costs incurred by Plaintiffs in connection with the Motion to Compel.

The parties may address the tentative rulings at the scheduled telephonic hearing on the Motion to Compel.

II. PERTINENT BACKGROUND

On November 28, 2023, Plaintiffs' counsel advised counsel for Defendants Avani Outpatient Surgical Center (“Avani”), Mountain View Surgical Center (“Mountain View”), and Charles K. Neal (“Neal”) (“Defendants' counsel”) that Plaintiffs intended to depose third party Arti and asked Defendants' counsel to let her know if Defendants' counsel wanted to accept service of the deposition subpoena by close of business on Thursday, November 30, 2023. (Bowles Ex. B1).[3] In the same email, Plaintiffs' counsel asked Defendants' counsel to supply deposition dates for Avani/Mountain View and Neal, and for three other individuals – Salve Caldozo, Jason Eligio and Osie Schmaeff – that were on such Defendants' interrogatory responses and as to which such Defendants had indicated that Plaintiffs should contact Defendants' counsel to arrange depositions. (Bowles Ex. B1).

*2 On November 30, 2023, Defendants' counsel, via email, supplied deposition dates for Avani/Mountain View and Neal and indicated that Defendants' counsel would get back to Plaintiffs' counsel regarding the other items in the November 28, 2023 email as soon as Defendants' counsel could. (Bowles Ex. B1). On the same date, Plaintiffs' counsel responded via email, thanking Defendants' counsel for confirming and indicated that amended deposition notices would be issued for those dates. (Bowles Ex. B1). Later that afternoon, Defendants' counsel, via email, advised Plaintiffs' counsel that Salve Caldozo no longer worked for Mountain View and that Defendants' counsel was not representing him at that time. (Bowles Ex. B1).[4]

The record does not include any correspondence relating to Arti between December 1, 2023 and January 21, 2024, though it appears that at some point during that time frame, Plaintiffs' counsel served Defendants' counsel with an original and first amended deposition notice for Arti. (See Bowles Decl. ¶ 3).

On January 22, 2024 at 10:35 a.m., Defendants' counsel, via email, advised Plaintiffs' counsel that Defendants' counsel would need to reschedule the Arti deposition, offered February 12, February 14, and February 16 as possible dates that may work but noted that Defendants' counsel still needed to clear those dates with the designee, and indicated that if any of those dates worked for Plaintiffs' counsel, she should let Defendants' counsel know, and Defendants' counsel would confirm. (Bowles Ex. B2). A few minutes later, Plaintiffs' counsel, via email, advised Defendants' counsel that February 14, 2024 was available, requested that Defendants' counsel confirm, and indicated that Plaintiffs' counsel would send an amended notice that day. (Bowles Ex. B2).

On January 23, 2024 at 10:48 a.m., Defendants' counsel, via email, advised Plaintiffs' counsel that Defendants' counsel was still awaiting confirmation from Arti's designee but that, due to the handling attorney's schedule, such deposition would have to have a hard stop at 5:00 p.m., in any event. (Bowles Ex. B1).

On January 24, 2024 at 12:25 p.m., Plaintiffs' counsel indicated that she could accommodate a 5:00 p.m. stop time, and indicated that she had served an Amended Notice of Deposition for February 14, 2024 and anticipated that such deposition would go forward since it had been rescheduled at the request of Defendants' counsel and the witness. (Bowles Ex. B1).

On January 24, 2024 at 12:49 p.m., Plaintiffs' counsel sent a cover email to Defendants' counsel and others, indicating that Plaintiffs' Second Amended Notice of 30(b)(6) Deposition Subpoena to Arti was attached. (Bowles Ex. A). The attachment to such email – which appears to have been mistitled as “Plaintiffs['][ ] First Amended Notice of 30(b)(6) Deposition Subpoena to Arti [ ]” – included a deposition subpoena issued on January 23, 2024 that called for Arti to designate a witness to testify about five topics (“Deposition Topics”)[5] and to produce documents responsive to five document requests (“Document Requests” or “RFP”)[6] on February 14, 2024 at 9:30 a.m. (Bowles Ex. A).

*3 On February 12, 2024, at 9:26 a.m., Defendants' counsel, via email, advised Plaintiffs counsel that it was his understanding that Arti had not been served with a subpoena and therefore was not going to appear on Wednesday, February 14, 2024. (Bowles Exs. B, D).

On February 12, 2024 at 10:14 a.m., Plaintiffs' counsel, via email: (1) advised Defendants' counsel that it was Plaintiffs' understanding that Defendants' counsel had agreed to accept service for “everyone except Salve Caldozo,” based on the above-described emails dating back to November 30, 2024; (2) noted that the Arti deposition had been rescheduled to February 14, 2024 at Defendants' counsel's request and based on his representation that Arti was available on that date; (3) asserted that service was therefore completed when Plaintiffs' counsel served Defendants' counsel; and (4) indicated that if Arti did not show and Defendants' counsel took the position that Arti was a third party (i.e., not represented by Defendants' counsel), then Plaintiffs would file a motion seeking sanctions for Defendants' counsel's interference with a third party deposition and seeking issue and/or evidentiary sanctions. (Bowles Exs. B, D).

On February 12, 2024 at 11:17 a.m., Defendants' counsel, via email: (1) stated that he was “sorry about [Plaintiffs' counsel's] confusion,” but that Defendants' counsel had “never agreed to accept service on behalf of Arti, ... nor ... stated that [Defendants' counsel] was authorized to accept service”; (2) stated that Defendants' counsel had “never even confirmed with Plaintiffs' counsel the date of 2/14,” noting that on January 22, Defendants' counsel had provided her with dates that worked for Defendants' counsel, that Plaintiffs' counsel had asked Defendants' counsel to confirm, but that Defendants' counsel had not confirmed, that Plaintiffs' counsel had unilaterally stated that she would notice the new date for 2/14, and that at that point, Defendants' counsel had never communicated to Plaintiffs' counsel that Defendants' counsel was authorized to accept service or that the date had been confirmed; (3) Defendants' counsel had assumed that Plaintiffs' counsel had served or was going to serve the subpoena on Arti; (4) pointed to Plaintiffs' counsel's February 7, 2024 email in which she had asked Defendants' counsel if they were representing Arti which Defendants' counsel had not confirmed in any way; (5) indicated that Defendants' counsel has not been authorized to accept service on behalf of Arti; (6) stated that Plaintiffs had no basis to file a motion to compel at that point since Arti was a third party and needed to be subpoenaed to appear and provide documents; and (7) proffered that there was a simple solution – i.e., Plaintiffs could properly serve a subpoena on Arti and Arti could then respond accordingly. (Bowles Ex. D).

On February 12, 2024 at 11:28 a.m., Plaintiffs' counsel, via email, advised Defendants' counsel (1) if it was his expectation that he would not be representing Arti, there would have been no reason for him to “clarify” matters that morning; (2) if Defendants' counsel expected Plaintiffs to shoulder the burden of serving Arti and everyone with a new date, then Plaintiffs would be filing a motion for third party interference and seeking monetary relief; (3) Defendants' counsel's prior emails made clear that Defendants' counsel had been speaking on behalf of Arti, not just Defendants' availability; and (4) absent Defendants' counsel's cooperation on the Arti deposition, Plaintiffs' counsel would be keeping other noticed depositions on calendar for February 21, and would expect Defendants' counsel to appear and be ready to proceed. (Bowles Ex. D).

*4 On February 12, 2024 at 11:56 a.m., Defendants' counsel, via email, questioned whether Plaintiffs' counsel was threatening to punish Mountain View and Avani by keeping a deposition on calendar that Plaintiffs' counsel herself had previously moved off calendar, indicated that Defendants' counsel had already told their clients to release those dates, and asked Plaintiffs' counsel to confirm if she was now saying that she wanted to keep those depositions on calendar as he had already communicated her request to move those depositions to June to the clients and did not know if the February 21 date was still available. (Bowles Ex. D).

On February 12, 2024 at 12:43 p.m., Plaintiffs' counsel, via email, advised that the Arti deposition was scheduled for February 14, 2024 at Defendants' counsel's request and that Defendants' counsel's prior email confirmed that Defendants' counsel was in contact with the 30(b)(6) witness, but that if Defendants' counsel did not intend to honor that agreement, then Plaintiffs' counsel would proceed as if Defendants' counsel had interfered with the third party deposition to ensure that Plaintiffs' counsel did not serve the subpoena so that Defendants' counsel could then cancel it at the last minute when it was too late for Plaintiffs to serve the witness personally. (Bowles Ex. D). Plaintiffs' counsel further stated that Plaintiffs' counsel was in full control of the deposition schedule for the Avani/ Mountain View deposition and did not have to agree to continue it if Defendants were going to play games. (Bowles Ex. D).

On February 12, 2024 at 1:08 p.m., Defendants' counsel, via email, advised Plaintiffs' counsel that no one had obstructed her from serving the Arti deposition subpoena or was blocking her from anything and that she still had plenty of time to serve a subpoena and take the deposition at a proper time, and requested clarity by 5:00 p.m. regarding Plaintiffs' counsel's intentions on the scheduling of the Avani/Mountain View depositions. (Bowles Ex. D).

On February 12, 2024 at 3:55 p.m., Plaintiffs' counsel, via email, advised Defendants' counsel: She had approached Defendants' counsel's office in November to confirm which people/entities in their interrogatory responses they were and were not representing for purposes of scheduling and serving deposition notices. Of that list, which included Arti, Defendants' counsel wrote back that only Salve Caldozo would not be represented because he/she was a former employee. Counsel then engaged in a series of emails where Defendants' counsel asked her to reschedule Arti's deposition to February 14 to accommodate schedules, including the designee's schedule. Now, two days before the deposition, when it was too late to personally serve a notice, Defendants' counsel emailed Plaintiffs' counsel reneging on Defendants' counsel's agreement to represent Arti. The noticed time/date worked for everyone and by unilaterally taking it off calendar, Defendants' counsel was forcing significant delay and prejudice to Plaintiffs, entitling Plaintiffs to monetary, evidentiary and issue sanctions. She further anticipated that after Plaintiffs served Arti personally, Defendants' counsel would end up representing Arti, so that Defendants were sending Plaintiffs on a fool's errand. (Bowles Ex. D).

On the morning of February 13, 2024, Defendants' counsel assertedly telephonically advised Plaintiffs' counsel that she should proceed by serving him with the Third Amended Deposition Notice for March 7, 2024 – the date coordinated with him – and that he would respond by follow up email later that day confirming he could accept service of the deposition subpoena for Arti. (Bowles Decl. ¶ 4; see Bowles Ex. D).

*5 On February 13, 2024 at 11:21 a.m., Plaintiffs' counsel, via email, advised Defendants' counsel that per their conversation that morning, she was sending a copy of the Third Amended Deposition Notice for March 7, 2024 and anticipated that she would hear from Defendant's counsel by 2:00 p.m. that date. (Bowles Ex. D).

On February 13, 2024 at 12:13 p.m., Defendants' counsel, via email, advised Plaintiffs; counsel that he had been “authorized for the limited purpose by Arti to accept service of [the] subpoena,” that Arti “intended to be represented by a different counsel in connection with this deposition,” that the “date of March 7 ha[d] not yet been cleared with Arti's counsel,” and that, therefore, he was “accepting service of the subpoena with the caveat that if March 7 [did] not work for the new counsel, Arti and [Plaintiffs] [would] work together to agree on a mutually agreeable date close to March 7.” (Bowles Ex D).

On February 13, 2024 at 6:03 p.m., Plaintiffs' counsel's office, via email, sent Defendants' counsel Plaintiffs' Third Amended Notice of 30(b)(6) Deposition Subpoena of Arti which called for Arti to designate and produce a witness to testify about the Deposition Topics (see supra note 5) and to produce the documents called for by the Document Requests (see supra note 6) on March 7, 2024 at 9:00 a.m. (Bowles Ex. C).

On February 23, 2024, Defendants' counsel, via email, asked whether it would be possible to start the Arti deposition at 10:30 a.m. (Bowles Ex. E). On the same date, Plaintiffs' counsel, via email, indicated she had no objection to starting at 10:30 a.m. so long as the deponent was prepared to continue until the deposition was complete which could go after 6:00 p.m., and asked Defendants' counsel to confirm. (Bowles Ex. E).

On February 29, 2024, Plaintiffs' counsel followed up via email, inquiring whether Defendants' counsel still wanted the Arti deposition to commence at 10:30 a.m., whether Defendants' counsel would be representing the deponent and producing records three business days beforehand (i.e., on Monday March 4, 2024), and who would be designated for Arti. (Bowles Ex. E).[7] On the same date, Defendants' counsel, via email, confirmed the 10:30 a.m. start time and indicated he would get back to Plaintiff's counsel about everything else as soon as possible. (Bowles Ex. E).

On March 5, 2024, at approximately 10:21 a.m., Attorney Setara Qassim (“Qassim” or “Attorney Qassim”), via email, advised Plaintiffs' counsel that Qassim's office had been retained to represent Arti at the deposition, and requested – due to her firm's recent retention – that the deposition be rescheduled to another time convenient for all counsel and that Plaintiffs' counsel provide alternate dates. (Bowles Exs. F, G; Qassim Ex. A).[8] On March 5, 2024 at 5:34 p.m., Plaintiffs' counsel, via email, advised Attorney Qassim that since the notice was properly served well in advance of the deposition and she was just now hearing from Attorney Qassim – two days before the deposition, and after the deadline to produce responsive documents – she was only willing to continue the deposition if Attorney Qassim provided the responsive documents by the next day, March 6, 2024, and indicated that if she received the documents by the next afternoon she would agree to reschedule the deposition for another day in the next two weeks. (Bowles Exs. F, G; Qassim Ex. B).

*6 On March 6, 2024 at 11:10 a.m., Plaintiffs' counsel, via email, followed up and advised Attorney Qassim that if she got the documents to Plaintiffs' counsel that day, the deposition could be continued to March 22 or March 25, 2024. (Bowles Exs. F, G; Qassim Ex. C). On March 6, 2024 at 3:43 p.m., Attorney Qassim, via email, represented that all responsive documents had been produced in discovery, there were no other outstanding materials at this time, and March 25, 2024 was a good date for the continued deposition. (Bowles Exs. F, G; Qassim Ex. D).[9] On the same date at 3:51 p.m., Plaintiffs' counsel, via email, responded that not all responsive documents had been produced, including Arti's text messages and employment records and payments exchanged with Defendants, among many other documents, and that she would see Attorney Qassim the next day at 10:30 a.m. (for the deposition). (Bowles Ex. F; Qassim Ex. E). On the same date, at 5:10 p.m., Attorney Qassim reiterated that her firm had just been retained and that she was trying to get a handle on the matter, represented that they would not be appearing the next day, and suggested that they reschedule the deposition to March 25, 2024 and use March 7, 2024 to meet and confer telephonically regarding documents Plaintiffs' counsel believed to be outstanding so that could be sorted out before March 25, 2024. (Bowles Ex. F; Qassim Ex. F). At approximately 5:17 p.m., Plaintiffs' counsel, via email, reiterated that the witness had been properly served weeks ago, asserted that it was not appropriate to summarily not show up within two day of the noticed date, and indicated that a court reporter and videographer had already been reserved and that it was too late to cancel them. (Bowles Ex. F; Qassim Ex. G). Plaintiffs' counsel further indicated that she would be willing to take the hit for such costs if Attorney Qassim showed good faith by producing the subpoenaed documents but that since Qassim had not even agreed to collect responsive documents, Plaintiffs' counsel could not in good faith delay the deposition. (Bowles Ex. F). At 5:36 p.m., Plaintiffs' counsel's office, via email, notified all counsel that the deposition of Arti had been rescheduled from 9:00 a.m. to 10:30 a.m. to accommodate the schedule of counsel for Avani/Mountain View. (Bowles Ex. K; Qassim Ex. I). At 5:45 p.m., Defendants' counsel, via email, advised Plaintiffs' counsel that he had been following the emails between Plaintiffs' counsel and Qassim, reminded Plaintiffs' counsel that he had only accepted service of the subpoena and had told Plaintiffs' counsel that he likely would not be representing Arti at the deposition, indicated that he had since identified a potential conflict and Arti had independently retained its own counsel, and expressed his view that under the circumstances, the two-week continuance requested by Qassim was not unreasonable. (Qassim Ex. I). On the same date – March 6, 2024 – Arti, through Attorney Qassim served Objections to the Third Amended Deposition Notice which reflect Arti's objections to each of the Document Requests in the subpoena. (Bowles Ex. H).

On March 7, 2024, at 8:06 a.m., Attorney Qassim emailed all counsel that her office represented Arti, that she had informed Plaintiffs' counsel earlier in the week that her office had just been retained and would not be ready to go with the deposition on March 7, 2024 and had requested a brief continuance to March 25, 2024, that Plaintiffs' counsel had not granted such request, and that her office and the witness/Arti would not be present for the deposition. (Bowles Ex. K; Qassim Ex. I). At 9:58 a.m., Plaintiffs' counsel emailed all counsel and indicated that the deposition would proceed as noticed. (Bowles Ex. K; Qassim Ex. J).

On March 7, 2024, Plaintiffs counsel obtained a Certificate of Nonappearance of Arti at the deposition. (Bowles Decl. ¶ 8; Bowles Ex. I). The court reporter/videographer billed Plaintiffs' counsel $1,457.25. (Bowles Decl. ¶ 8; Bowles Ex. J).

On March 11, 2024, Plaintiffs' counsel sent Attorney Qassim a meet and confer letter setting out a chronology of events, addressing Arti's objections, and indicating that this was her final effort to meet and confer regarding the matter, and that if Arti's counsel did not contact her to advise that Arti was prepared to meet Plaintiffs' demands, Plaintiffs would file a motion to compel. (Bowles Ex. L). On March 21, 2024, at 5:30 p.m., Attorney Qassim sent a response, setting out a chronology of events, recommending that Plaintiffs' counsel provide mutually agreeable dates for the continued deposition and a time and date to meet and confer regarding the Document Requests, and indicating that she looked forward to hearing from Plaintiffs' counsel. (Bowles Ex. M; Qassim Ex. K). Plaintiffs' counsel, via email, responded, essentially just pointing to the fact that Qassim had sent a letter “at 5 PM on the last day of the 10-day final meet and confer period, without offering any solution....” (Qassim Ex. L).

On March 22, 2024 at 10:47 a.m., Qassim, via email, inquired whether Plaintiffs' counsel had actually read her letter, pointing to the fact that she had asked Plaintiffs' counsel to provide new dates for the deposition and had requested that they meet and confer telephonically regarding any outstanding documents. (Qassim Ex. M). At 2:42 p.m., Plaintiffs' counsel, via email, essentially responded that pursuant to the Local Rules, the issues identified in her meet and confer letter were supposed to have been resolved by the end of the prior day. (Qassim Ex. N).

Plaintiffs' counsel thereafter sent Plaintiffs' portion of the Joint Stipulation to Qassim, who, on April 3, 2024, via email, advised Plaintiffs' counsel that Qassim would shortly send Plaintiffs' counsel Arti's portion of the Joint Stipulation with exhibits, proposed the week of April 15, 2024 for the rescheduled deposition, inquired whether Plaintiffs' counsel was agreeable to any day that week, and indicated that she would prefer to move forward with the deposition rather than litigate the matter. (Qassim Ex. O). Plaintiffs' counsel assertedly did not respond to this email. (Qassim Decl. ¶ 19).[10]

*7 As noted above, Plaintiffs' Motion to Compel followed on April 9, 2024. (Docket Nos. 400, 401).

On April 18, 2024, this Court directed Plaintiffs and Arti further to meet and confer on specified matters and to file a status report. (Docket No. 413).

On April 25, 2024, Plaintiffs and Arti filed the Joint Supplemental Memorandum which reflects that on April 24, 2024, they met and conferred via video conference and “landed on July 11, 2024 at 9:30 a.m.” for the continued deposition, and which sets out the parties' respective positions on the Document Requests. (Joint Supp. at 2).

The discovery cut-off in this action is currently September 13, 2024. (Docket No. 356).

III. PERTINENT LAW

Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[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 the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).

Pursuant to Rule 30(a) of the Federal Rules of Civil Procedure, a party may, by oral questions, depose any person, including a party, without leave of court subject to certain exceptions not applicable here. Fed. R. Civ. P. 30(a)(1). Fed. R. Civ. P. 30(b)(6) governs deposition notices or subpoenas directed to organizations. “Rule 30(b)(6) depositions, ..., are often referred to as ‘persons most knowledgeable’ or ‘persons most qualified’ depositions because ‘the notice of deposition or subpoena is directed at the entity itself’ and ‘[t]he entity will then be obligated to produce the “most qualified” person [or persons] to testify on its behalf....’ ” Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792, 798 n.4 (9th Cir. 2003) (quoting Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial ¶ 11:1409 (The Rutter Group 2003)); but see Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial ¶ 11:1414 (The Rutter Group 2024) (“A party need not produce the person most knowledgeable about the matters designated. Rather, ‘it need only produce a person with knowledge whose testimony will be binding on the party.’ ”) (quoting Rodriguez v. Pataki, 293 F. Supp. 2d 305, 311 (S.D.N.Y. 2003), aff'd, 293 F. Supp. 2d 315 (S.D.N.Y. 2003) (emphasis original)).

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, any party may serve a subpoena commanding a non-party witness to, among other things, “attend and testify[ ]” and “produce designated documents [or] electronically stored information ... in that person's possession, custody, or control[.]” Fed. R. Civ. P. 45(a)(1)(A)(iii). The scope of discovery allowed under a Rule 45 subpoena is the same as the scope of discovery allowed under Rule 26. Zucchella v. Olympusat, Inc., 2020 WL 13250450, at *4 (C.D. Cal. Apr. 1, 2020); Much v. Gessesse, 339 F.R.D. 625, 629 (C.D. Cal. 2018).

*8 If the subpoena commands the production of documents, a non-party witness may challenge the subpoena in one of three ways: (1) by written objection; (2) by moving to quash or modify the subpoena; or (3) by moving for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(c); 45(d)(2)(B), 45(d)(3). The non-party witness must serve written objections within fourteen days after the service of the subpoena. Id. A non-party witness's failure to serve timely objections waives all grounds for objection, including privilege. In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir. 1998); Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (citations omitted).[11] In unusual circumstances and for good cause, the failure timely to act will not bar consideration of objections to a Rule 45 subpoena. Id. (citations and quotation marks omitted).

A non-party witness, however, may not challenge a deposition subpoena calling for testimony by written objections. See Fed. R. Civ. P. 45(d)(2)(B); In re Coan, 2007 WL 128010 *2 n.3 (N.D. Cal. Jan. 12, 2007). Instead, a non-party witness must either move to quash or modify the subpoena or move for a protective order pursuant to Rule 26(c). Id.

If an objection is made to a subpoena that calls for the production of documents, the party who served the subpoena duces tecum may move the court for the district where compliance is required for an order compelling production. Fed. R. Civ. P. 45(d)(2)(i). In that event, the production called for by a subpoena may be required only as directed in an order, and such order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. Fed. R. Civ. P. 45(d)(2)(ii); Legal Voice v. Stormans, Inc., 738 F.3d 1178, 1184 (9th Cir. 2013) (“Rule 45(d)(2)(B)(ii) requires the district court to shift a non-party's costs of compliance with a subpoena, if those costs are significant.”); Diamond Resorts U.S. Collection Development, LLC v. Pandora Marketing, LLC, 2020 WL 6526356, at *1 (C.D. Cal. Sept. 11, 2020) (cost-shifting appropriate when non-party incurs significant reasonable expenses resulting from compliance with subpoena; assessment of whether expenses are “significant,” requires consideration of “financial ability” of non-party to bear some costs of production) (citations omitted); United States v. McGraw-Hill Companies, Inc., 302 F.R.D. 532, 536 (C.D. Cal. 2014) (“Without knowing what the non-parties intend to claim, it would be premature for the Court to catalogue the types of expenses that fall on either side of the line between expenses and non-expenses. But one thing is certain: an unreasonably incurred expense is not an expense ‘resulting from compliance.’ ”) (internal citation omitted).

The only sanction available when a nonparty witness fails without adequate excuse to obey a subpoena is a contempt citation. See Fed. R. Civ. P. 45(g); Sali v. Corona Regional Medical Center, 884 F.3d 1218, 1224 (9th Cir. 2018) (Rule 45 “obligates the nonparty to appear at the scheduled deposition at pain of being held in contempt. None of the other sanctions available under Rule 37 are available against the nonparty.”); Beverly v. Interior Electric Inc, Nev., 2023 WL 355692, at *1-*2 (9th Cir. Jan. 23, 2023) (“[T]he only authority in the Federal Rules of Civil Procedure for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum is Rule 45 [which] provides that the court may hold a non-party in contempt for failure to obey a subpoena ... but it does not independently provide for the award of attorneys' fees as a sanction.”) (citation and internal quotation marks omitted); Aguilar v. City of Azusa, 2016 WL 11755112, at *1 (C.D. Cal. Jan. 5, 2016) (“Under [Rule 45], the only sanction available when a nonparty witness fails without adequate excuse to obey a subpoena is a contempt citation.”); see also Echostar Satellite L.L.C. v. Viewtech, Inc., 2010 WL 653186, at *1 (E.D. Cal. Feb. 22, 2010) (“If the recipient fails or refuses to respond to the subpoena, the proponent may first try to negotiate compliance, as by offering to meet and confer, but ultimately, if the recipient fails to comply without adequate excuse, the recipient is in contempt of court, and the proponent must file an application for an order to show cause why a contempt citation should not issue.”); Martinez v. Antique & Salvage Liquidators, Inc., 2011 WL 798707, at *2 (N.D. Cal. Feb. 8, 2011) (“The only sanction available against nonparties for failure to comply with deposition subpoenas is a contempt citation.”) (citation and emphasis omitted).

IV. DISCUSSION AND (TENTATIVE) ORDERS

*9 First, as it appears to the Court that Plaintiffs and Arti now agree that Arti will appear for a deposition on July 11, 2024 at 9:30 a.m., the Court is inclined to direct Plaintiffs to renotice Arti's deposition for such date and time and to order Arti to designate, prepare, and produce a witness to testify regarding the Deposition Topics as renoticed on July 11, 2024 at 9:30 a.m.

Second, as it appears to the Court that Arti was served with the Third Amended Deposition Notice and accompanying subpoena no later than February 13, 2024, Arti's objections to the Document Requests – filed more than fourteen (14) days later on March 7, 2024 – are untimely. Fed. R. Civ. P. 45(d)(2)(B). Accordingly, the Court is inclined to find that Arti has waived all objections to the Document Requests. See In re DG Acquisition Corp., 151 F.3d at 81; Moon, 232 F.R.D. at 636. The Court sees no basis in the record to find that there are unusual circumstances or good cause to excuse such untimeliness/waiver. Having said that, the Court has reviewed the parties' respective positions on each of the Document Requests, and, in an exercise of its discretion and after considering the factors set out in Fed. R. Civ. P. 26(b)(1), deems it appropriate to narrow certain such requests based on proportionality, and pursuant to Fed. R. Civ. P. 45(d)(2)(B)(i) is inclined to order Arti to produce the below-specified documents in Arti's possession, custody or control that are called for by the Document Requests within twenty (20) days of this Court's final Order on the Motion to Compel subject to the Stipulated Protective Order and subject to potential cost-shifting for reasonable significant expenses resulting from compliance.

As to RFP No. 1 – which essentially calls for Arti to produce all documents evidencing payments made to or received from any Defendant regardless of whether those payments specifically related to a member of Leprino's Health Plan from January 1, 2019 to December 31, 2022 and to authentication of the same – the Court is inclined to narrow such request to call for Arti to produce all documents evidencing payments made to or received from any Defendant that are related to members of Leprino's Health Plan from January 1, 2019 to December 31, 2022 and to authentication of the same.

As to RFP No. 2 – which essentially calls for Arti to produce documents evidencing the administrative services agreement, management services agreement, or any other agreement, signed or unsigned, or any Document evidencing a financial or business relationship between Arti and any Defendant from January 1, 2019 to December 31, 2022, and authentication of the same, the Court is inclined to direct Arti to produce all documents responsive to this request in its possession, custody or control except for a copy of the unsigned management agreement between Arti and Mountain View that has already been produced by Mountain View, but including any other version, draft, amendment, signed or unsigned, of the management agreement between Arti and Mountain View and all other responsive documents involving the specified agreements between Arti and Avani and any other Defendant.

As to RFP No. 3–which essentially calls for Arti to produce multiple categories of communications between Arti and others for the period of October 6, 2020 through December 31, 2022 – the Court is inclined to narrow such request to call for Arti to produce for the specified time frame: (1) all communications between Arti and any of the 62 patients/members of Leprino's Health Plan that are reflected on the list supplied by Plaintiffs to Arti; (2) all communications between Arti and the FBI concerning Avani, Mountain View, or any of the Defendants; (3) all communications between Arti and any of the Defendants or Defendants' staff; (4) all communications between Arti and United Health Care Services, Inc. or its affiliated companies concerning Avani, Mountain View, or any of the Defendants relating to members of Leprino's Health Plan; and (5) authentication of the same.

*10 As to RFP No. 4 – which essentially calls for Arti to produce all documents evidencing Arti's involvement in Avani and Mountain View's response to United Healthcare Services, Inc.'s or its affiliated companies' inquiries into Avani, Mountain View, or any other Defendants' procedures, treatments, claims, or bills for Leprino Health Plan's members, and authentication of the same – the Court is inclined to require Arti to produce all documents in its possession, custody or control called for by this request.

As to RFP No. 5 – which essentially calls for Arti to produce all documents evidencing all training, policies, procedures, billing, coding, collections, marketing, advertising, recruiting and hiring (of any employee, physician, surgeon, anesthesia provider, or other provider) that Arti provided to Avani, Mountain View or any other Defendant from January 1, 2019 to December 31, 2022, and authentication of the same – – the Court is inclined to require Arti to produce all documents in its possession, custody or control called for by this request.

Finally, the Court is inclined to deny the Motion to Compel to the extent it seeks an order compelling Arti/its counsel to pay Plaintiffs' fees/costs incurred in connection with the Motion to Compel as it does not appear from the authorities cited above, that such an order is authorized absent a finding of contempt and Plaintiffs have not sought a contempt order in this matter.

IT IS SO (TENTATIVELY) ORDERED.

In connection with the Motion to Compel, Plaintiffs and Third Party Arti Enterprises, Inc. submitted Plaintiffs' Notice of Motion, a Joint Stipulation (“JS”) with attached Scheduling Orders, a Declaration of Katherine A. Bowles (“Bowles Decl.”) with exhibits (“Bowles Ex.”), a Declaration of Setara Qassim (“Qassim Decl.”) with exhibits (“Qassim Ex.”), and a Joint Supplemental Memorandum (alternatively, “Joint Supp.”). (Docket No. 400, 401, 425).

Plaintiffs' Notice of Motion reflects that Plaintiffs seek to compel Arti to designate and produce Parvin Atabay as Arti's Fed. R. Civ. P. 30(b)(6) witness. (Notice at 2). However, as Arti points out, the subpoena in issue calls for Arti itself to designate a witness to testify regarding the specified topics pursuant to Fed R. Civ. P. 30(b)(6) and does not call for, or require Arti to designate/produce Parvin Atabay to testify. Accordingly, the Court declines to compel Arti to designate/produce Atabay as its Rule 30(b)(6) witness, but nothing in this Order prohibits Arti from doing so.

Plaintiffs' counsel attests that Arti “is emerging as the entity – with its CEO, CFO, Secretary, Agent for Service, President, Board Member, and Owner Parvin Atabay – as the ‘boss lady’ in charge of Defendants Mountain View Surgical Center and Avani Outpatient Surgical Center.” (Bowles Decl. ¶ 13; Bowles Ex. N).

Plaintiffs' counsel apparently inferred from such email and Defendants' counsel's non-response regarding the remaining individuals/entity about whom she had inquired in her November 28, 2023 email, that Defendants' counsel did represent the remaining individuals/entity, including Arti. (Bowles Decl. ¶ 3). Arti's current counsel has since confirmed that Defendants' counsel previously represented Arti. (Qassim Decl. ¶ 12).

The Deposition Topics essentially called for testimony regarding: (1) all payments made to or received from any Defendant regardless of whether those payments specifically related to a member of Leprino's Health Plan from January 1, 2019 to December 31, 2022, including checks, electronic funds transfers, wire transfers, bank statements, and financial reports and receipts showing payments and authentication of documents supporting the same; (2) the administrative services agreement, management services agreement, or any other agreement, signed or unsigned, or any Document evidencing a financial or business relationship between Arti and any Defendant from January 1, 2019 to December 31, 2022, and authentication of documents supporting the same; (3) from October 6, 2020 through December 31, 2022 (a) all communications between Arti and any member of Leprino's Health Plan, regardless of whether Arti knew at the time that the person was a member of the Health Plan; (b) all communications between Arti and the FBI concerning Avani, Mountain View, or any of the Defendants; (c) all communications between Arti and any of the Defendants or their staff including Salve Caldozo, Leslie Garcia, etc.; (d) all communications between Arti and United Health Care Services, Inc. or its affiliated companies concerning Avani, Mountain View, or any of the Defendants; and (e) authentication of documents supporting the same; (4) Arti's involvement in Avani and Mountain View's response to United Healthcare Services, Inc.'s or its affiliated companies' inquiries into Avani, Mountain View, or any other Defendants' procedures, treatments, claims, or bills for Leprino Health Plan's members, and authentication of documents supporting the same; and (5) all training, policies, procedures, billing, coding, collections, marketing, advertising, recruiting and hiring (of any employee, physician, surgeon, anesthesia provider, or other provider) that Arti provided to Avani, Mountain View or any other Defendant from January 1, 2019 to December 31, 2022, and authentication of documents supporting the same. (Bowles Ex. A).

The Document Requests called for the production of: (1) all Documents evidencing payments made to or received from any Defendant regardless of whether those payments specifically related to a member of Leprino's Health Plan from January 1, 2019 to December 31, 2022, including checks, electronic funds transfers, wire transfers, bank statements, and financial reports and receipts showing payments and authentication of the same (RFP No. 1); (2) all Documents evidencing the administrative services agreement, management services agreement, or any other agreement, signed or unsigned, or any Document evidencing a financial or business relationship between Arti and any Defendant from January 1, 2019 to December 31, 2022, and authentication of the same (RFP No. 2); (3) from October 6, 2020 through December 31, 2022 (a) all communications between Arti and any member of Leprino's Health Plan, regardless of whether Arti knew at the time that the person was a member of the Health Plan; (b) all communications between Arti and the FBI concerning Avani, Mountain View, or any of the Defendants; (c) all communications between Arti and any of the Defendants or their staff including Salve Caldozo, Leslie Garcia, etc.; (d) all communications between Arti and United Health Care Services, Inc. or its affiliated companies concerning Avani, Mountain View, or any of the Defendants; and (e) authentication of the same (RFP No. 3); (4) all Documents evidencing Arti's involvement in Avani and Mountain View's response to United Healthcare Services, Inc.'s or its affiliated companies' inquiries into Avani, Mountain View, or any other Defendants' procedures, treatments, claims, or bills for Leprino Health Plan's members, and authentication of the same (RFP No. 4); and (5) all documents evidencing all training, policies, procedures, billing, coding, collections, marketing, advertising, recruiting and hiring (of any employee, physician, surgeon, anesthesia provider, or other provider) that Arti provided to Avani, Mountain View or any other Defendant from January 1, 2019 to December 31, 2022, and authentication of the same (RFP No. 5). (Bowles Ex. C).

Plaintiffs' counsel attests that she “followed up several times with [Defendants' counsel] to confirm they would be completing the document production responsive to the Third Amended Deposition Subpoena by the deadline of three business days beforehand.” (Bowles Decl. ¶ 5). The source of such obligation is unclear to the Court as the subpoena itself called for the production of documents on March 7, 2024 at 9:00 a.m., i.e., the day of the then-scheduled deposition. (Bowles Ex. C).

Plaintiffs' counsel was then in a full-day deposition of another witness. (Bowles Decl. ¶ 5).

Attorney Qassim attests that this representation to Plaintiffs' counsel was based on representations made to her by “Arti Enterprises's prior counsel,” who she elsewhere identified as Defendants' counsel. (Quassim Decl. ¶¶ 6, 12).

Qassim attests that she has “not refused to produce Arti Enterprises for its deposition and [has], instead, repeatedly tried to coordinate with [Plaintiffs' counsel] for the scheduling of the continued deposition and the production of any outstanding responsive documents.” (Qassim Decl. ¶ 20).

If the non-party witness seeks to challenge the subpoena by moving to quash or modify the subpoena, such a motion must be made promptly, allowing it to be heard and granted before the scheduled deposition. See Fed. R. Civ. P. 45(d)(3)(A); In re Coan, 2007 WL 128010, at *2 (N.D. Cal. Jan. 12, 2007).