Akkawi v. Sadr ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DIANA AKKAWI, et al., No. 2:20-cv-1034 MCE AC 11 Plaintiffs, 12 v. ORDER 13 KASRA SADR, et al., 14 Defendants. 15 16 This matter is before the court on non-party Narissa Nelson’s motion to quash a third- 17 party subpoena (ECF No. 108). Also before the court are two motions to quash by non-party 18 Nima Heydari regarding a single third-party subpoena. ECF Nos. 110, 112. Since the second 19 motion is a duplicate of the first, the court DENIES the second motion (ECF No. 112) as MOOT. 20 The motions at ECF Nos. 108 (Nelson motion) and 110 (Heydari motion) are GRANTED on the 21 merits for the reasons explained below. 22 I. Relevant Background 23 Plaintiffs are suing defendants Kasra Sadr, Car Law Firm, The Sadr Law Firm, 24 Nationwide VIN Marketing, and Ryan Bancaya, bringing claims that arise from defendants’ 25 alleged conspiracy to acquire plaintiffs’ personal information without plaintiffs’ consent for the 26 purpose of sending plaintiffs letters to solicit representation for litigation against the sellers of 27 vehicles that plaintiffs purchased. ECF No. 101 at 2 (First Amended Complaint). At issue are 28 two non-party subpoenas issued by plaintiffs’ counsel. Non-party Nima Heydari was personally 1 served, on September 9, 2022, a “Subpoena to Testify at a Deposition in a Civil Action” joined 2 with a Request for Production of Documents, with an appearance date of October 20, 2022. ECF 3 No. 112 at 2. Non-party Narissa Nelson was personally served, on September 30, 2022, a 4 “Subpoena to Testify at a Deposition in a Civil Action” joined with a Request for Production of 5 Documents, with an appearance date of October 19, 2022. ECF No. 108 at 1. Both Heydari and 6 Nelson seek to quash their respective subpoenas. 7 II. Motion to Quash Third Party Subpoena Legal Standard 8 A nonparty may be compelled to produce documents and tangible things via a Rule 45 9 subpoena. Fed. R. Civ. P. 34(c). Rule 45 also permits a party to issue a “subpoena commanding 10 the person to whom it is directed to attend and give testimony or to produce and permit inspection 11 of designated records or things.” Fed. R. Civ. P. 45(a)(1)(C). The recipient may object to a 12 subpoena, or move to quash or modify it. Fed. R. Civ. P. 45(c)(2), 45(c)(3). “The district court 13 has wide discretion in controlling discovery” and “will not be overturned unless there is a clear 14 abuse of discretion.” Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988). “[T]he court that 15 issued the subpoena ... can entertain a motion to quash or modify a subpoena.” S.E.C. v. CMKM 16 Diamonds, Inc., 656 F.3d 829, 832 (9th Cir.2011). The issuing court must quash or modify a 17 subpoena that: 18 (i) fails to allow a reasonable time to comply; 19 (ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is 20 employed, or regularly transacts business in person-except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to 21 attend a trial by traveling from any such place within the state where the trial is held; 22 (iii) requires disclosure of privileged or other protected matter if no 23 exception or waiver applies; or 24 (iv) subjects a person to undue burden. 25 Fed. R. Civ. P. 45(c)(3)(A). Additionally, the issuing court may quash or modify a subpoena if it 26 requires: 27 (i) disclosing a trade secret or other confidential research, development, or commercial information; 28 1 (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the 2 expert’s study that was not requested by a party; or 3 (iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial. 4 5 Fed. R. Civ. P. 45(c)(3)(B). 6 The Federal Rules specifically require parties to avoid creating undue burdens on third 7 parties via subpoenas. Federal Rule of Civil Procedure 45(c)(1) says “[a] party or attorney 8 responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing 9 undue burden or expense on a person subject to the subpoena. The issuing court must enforce this 10 duty and impose an appropriate sanction—which may include lost earnings and reasonable 11 attorney’s fees—on a party or attorney who fails to comply.” “This rule imposes obligations on 12 both attorneys and courts; attorneys must obey their duty under the rule, and courts must enforce 13 it.” Mount Hope Church v. Bash Back!, 705 F.3d 418, 425 (9th Cir. 2012). “In determining 14 whether a subpoena poses an undue burden, courts weigh the burden to the subpoenaed party 15 against the value of the information to the serving party. Generally, this requires consideration of 16 relevance, the need of the party for the documents, the breadth of the document request, the time 17 period covered by it, the particularity with which the documents are described and the burden 18 imposed.” In re Subpoena of DJO, LLC, 295 F.R.D. 494, 497 (S.D. Cal. 2014) (internal citations 19 and quotations omitted). 20 Third party subpoenas under Fed. R. Civ. P. 45 are also subject to the limitations of Fed. 21 R. Civ. P. 26. Fed. R. Civ. P. 26(b)(2)(C)(i) requires the court to limit discovery otherwise 22 allowed if “the discovery sought is unreasonably cumulative or duplicative, or can be obtained 23 from some other source that is more convenient, less burdensome, or less expensive[.]” Courts 24 routinely disallow discovery from third parties where the same discovery is easily obtained from 25 a party. Glass Egg Digital Media v. Gameloft, Inc., No. 17-cv-04165-MMC-RMI, 2019 WL 26 4166780, at *5 (N.D. Cal. Sept. 3, 2019); Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 27 577 (N.D. Cal. 2007) (“There is simply no reason to burden nonparties when the documents 28 sought are in possession of the party defendant.”). 1 III. Discussion 2 A. Nelson Motion 3 Non-party Narissa Nelson was personally served, on September 30, 2022, a “Subpoena to 4 Testify at a Deposition in a Civil Action” joined with a Request for Production of Documents 5 with an appearance date of October 19, 2022. ECF No. 108 at 1. Nelson is the office manager 6 for defendant Car Law Firm, and she resides in San Diego, California. ECF No. 108 at 3; ECF 7 No. 116 at 3. At the time Nelson was served with the subpoena from plaintiffs, the date of 8 appearance was less than 20 days away. Id. Nelson contends that she is responsible for four 9 children, ages 3-16 years, and is responsible for childcare drop-offs and pickups. Id. at 4. The 10 subpoena required her personal appearance in Irvine, California. ECF No. 108-1. Nelson faxed 11 plaintiff’s counsel objecting to the subpoena, asserting that the proposed deposition location 12 nearly 100 miles from her home was unduly burdensome, and the date suggested was not 13 possible. ECF No. 108-2. Nelson suggested an alternative location, alternative dates for the 14 deposition, and asked that the deposition conclude by 3:30 p.m. so she could pick up her child. 15 ECF No. 108-2 at 2. Plaintiffs’ counsel responded stating that he would attempt to be efficient, 16 but the deposition must start by 10 a.m. and continue until completed. ECF No. 108-3. Counsel 17 further stated that he would agree to hold the deposition outside his office only if Nelson or 18 defendants would pay the cost of the conference room. Id. The subpoena also seeks production 19 of documents; each request is related to Nelson’s work for The Car Law Firm as an office 20 manager, including requests such as “All COMMUNICATIONS YOU had with any vehicle 21 auctions (including but not limited to Manheim and/or Adesa) on behalf of DEFENDANTS.” 22 ECF No. 108-1 at 13. 23 Nelson’s motion to quash is GRANTED for two reasons. First, although asking a third- 24 party to travel roughly 80 miles does not violate the milage limit provided by the relevant Federal 25 Rules, the court finds that in this case it poses an undue burden on the non-party deponent. As the 26 party issuing the subpoena, plaintiff’s counsel had the duty to take reasonable steps to avoid 27 undue burden. Here, Nelson proposed an alternative location and alternative dates, and made 28 reasonable requests for accommodations considering her childcare needs. She made a legitimate 1 showing of undue burden, and plaintiffs’ counsel failed in his duty to mitigate the burden. 2 Requiring the non-plaintiff to personally pay the cost of an alternative location within reasonable 3 driving distance from her home is not sufficient. 4 The court also finds that the documents sought from Nelson are readily available from the 5 defendants in this case. “In determining whether [a] subpoena should be enforced, the Court is 6 guided by not only Federal Rule of Civil Procedure 45(d)(3)(A)(iv) which protects subpoenaed 7 parties from ‘undue burden’ but also Rule 26, which provides, inter alia, that a court must limit 8 discovery if ‘the discovery sought . . . is obtainable from some other source that is more 9 convenient, less burdensome, or less expensive.’” Nidec Corp., 249 F.R.D. at 577. Plaintiffs’ 10 counsel argues that all of the document requests are “directed solely to Nelson and seek 11 documents in Nelson’s possession” and that “[n]one of the documents requested go directly to 12 documents in Defendants’ possession.” ECF No. 116 at 9. The face of the requests for 13 production contradicts plaintiff’s conclusory assertion – many of the RFPs at issue ask for 14 documents created or submitted “on behalf of DEFENDANTS” and all the RFPs ask for 15 documents associated with Nelson’s work for defendants. ECF No. 108-1 at 10-13. Plaintiffs do 16 not offer any specific argument as to why these documents are not equally available from the 17 defendants, and the court can think of no reason, considering the plain text of the RFPs, why they 18 would not be equally available from defendant The Car Law Firm. 19 B. Heydari Motion 20 Non-party Nima Heydari was personally served, on September 9, 2022, a “Subpoena to 21 Testify at a Deposition in a Civil Action” joined with a Request for Production of Documents 22 with an appearance date of October 20, 2022. ECF No. 112 at 2. Heydari is an attorney 23 employee of The Car Law Firm who, like Nelson, resides in San Diego. ECF No. 110-2 at 2. On 24 October 12, 2022, Heydari sent plaintiffs’ counsel a letter stating that the subpoena was unduly 25 burdensome because of the location and timing, with suggestions for less burdensome 26 alternatives. ECF No. 110-2 at 2. 27 The analysis above with respect to the Nelson applies equally to the Heydari motion, as 28 the subpoenas and circumstances are (except for Nelson’s childcare situation) essentially 1 | identical. The Requests for Production issued to Heydari are identical to those issued to Nelson. 2 || Compare ECF No. 108-1 and ECF No. 110-1. For all the reasons discussed above, Heydari’s 3 || motion is also GRANTED. 4 IV. Conclusion 5 Per the discussion above, Narissa Nelson’s motion to quash (ECF No. 108) and Nima 6 || Heydari’s motion to quash (ECF No. 110) are GRANTED. The motion at ECF No. 112 is 7 || DENIED as MOOT. 8 IT IS SO ORDERED. 9 | DATED: December 15, 2022 ~ 10 AMhan—Clore ALLISON CLAIRE 1] UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28