David Lillie v. Mantech Int l Corp., et al

Filing 139

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: JPLS EX PARTE APPLICATION TO QUASH TRIAL SUBPOENAS AND FOR A PROTECTIVE ORDER 129 . JPLs ex parte application to quash plaintiffs trial subpoenas is DENIED. JPLs request for a protective order is also DENIED. (lc) .Modified on 2/15/2019 (lc).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-02538-CAS-SSx
Date  February 15, 2019
DAVID LILLIE v. MANTECH INT’L. CORP. ET AL.

Present: The Honorable

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

I.

(IN CHAMBERS) - JPL’S EX PARTE APPLICATION TO
QUASH TRIAL SUPOENAS AND FOR A PROTECTIVE ORDER
(Dkt. [ 129 ], filed February 11, 2019)

INTRODUCTION & BACKGROUND

On April 3, 2017, plaintiff David Lillie filed this action against his former
employer, defendant ManTech International Corporation (“ManTech”). Plaintiff claims
that defendant illegally retaliated against plaintiff by terminating his employment after
plaintiff reported that he had received allegedly-unauthorized access to
“classified/proprietary” information owned by JPL, a third-party government contractor.
Plaintiff alleges claims for (1) retaliation in violation of the False Claims Act (“FCA”),
31 U.S.C. § 3730(h), (2) retaliation in violation of the Defense Contractor Whistleblower
Protection Act (“DCWPA”), 10 U.S.C. § 2409, and (3) retaliation in violation of
California Labor Code § 1102.5(b) (“Section 1102.5”). Dkt 1.1 On September 24, 2018,
the Court denied defendant’s motion for summary judgment. Dkt. 80. Trial is currently
set for February 19, 2019.
On February 8, 2019, the Court denied plaintiff’s motion to add the California
Institute of Technology – Jet Propulsion Laboratory (“JPL”) as a party in this case. Dkt.
128. That same day, plaintiff served subpoenas for trial on five JPL employees: Chau
Brown (“Brown”), Linda Facto (“Facto”), Ernest Fierheller (“Fierheller”), John Klohoker
(“Klohoker”), and Lani De Benedictis (“De Benedictis”). On February 11, 2019, JPL

1

Although plaintiff’s complaint initially alleged additional claims of (1) breach of
contract, and (2) breach of the implied covenant of good faith and fair dealing, the Court
dismissed these claims on August 14, 2017, in response to defendant’s motion to dismiss.
Dkt. 23.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-02538-CAS-SSx
Date  February 15, 2019
DAVID LILLIE v. MANTECH INT’L. CORP. ET AL.

certified itself as an interested party in this case, dkt. 130, and filed an ex parte
application to quash the trial subpoenas, on behalf of its employees, dkt. 129 (“EPA”).
On February 13, 2019, plaintiff filed an opposition to JPL’s ex parte application, dkt. 134
(“Opp’n”), and defendant filed a notice of non-opposition, dkt. 133. Having carefully
considered the parties’ arguments, the Court rules as follows.
II.

DISCUSSION
A.

JPL’s Motion to Quash

Pursuant to Federal Rule of Civil Procedure 45, “on timely motion, the court for
the district where compliance is required must quash or modify a subpoena that: (i) fails
to allow a reasonable time to comply; (ii) requires a person to comply beyond the
geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other
protected matter, if no exception or waiver applies; or (iv) subjects a person to undue
burden.” Fed. R. Civ. P. 45.
“[W]hether a subpoena is burdensome depends on the facts of the case.” Green v.
Baca, 226 F.R.D. 624, 653–54 (C.D. Cal. 2005), order clarified, No. CV 02-204744
MMM (MANx), 2005 WL 283361 (C.D. Cal. Jan. 31, 2005) (quoting Hussey v. State
Farm Lloyds Ins. Co., 216 F.R.D. 591, 596 (E.D.Tex.2003)). “It is the burden of the
party seeking to quash the subpoena to demonstrate that the subpoena is unduly
burdensome.” Anhing Corp. v. Thuan Phong Co. Ltd., No. CV 13-05167 BRO (MANx),
2015 WL 12747605, at *2 (C.D. Cal. Apr. 23, 2015) (citing Goodman v. United States,
369 F.2d 166, 169 (9th Cir. 1966)). “The party issuing the subpoena must demonstrate[,
in turn,] that the information sought is relevant and material to the allegations and claims
at issue in the proceedings.” Green, 226 F.R.D. at 653–54 (citing Night Hawk Ltd. v.
Briarpatch Ltd., L.P., No. 03 Civ.1382, 2003 WL 23018833, *8 (S.D.N.Y. Dec. 23,
2003)). In a Rule 45 inquiry, “concern for the unwanted burden thrust upon non-parties
is a factor entitled to special weight in evaluating the balance of competing needs,” and a
court may quash a subpoena where the court determines that the same evidence could be
obtained from a party to the litigation. Amini Innovation Corp. v. McFerran Home
Furnishings, Inc., 300 F.R.D. 406, 409–10 (C.D. Cal. 2014). The federal rules do not
impose a strict deadline by which a party must serve subpoenas for trial. “Service of
subpoenas at least 10 days before the deposition or production is customary, but not
mandatory. The provisions of Rule 45 dealing with objections to a subpoena specifically
contemplate that less than 14-day service may be proper.” Judge Beverly Reid
O’Connell et al., Federal Civil Procedure Before Trial, § 11:2277 (2018).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-02538-CAS-SSx
Date  February 15, 2019
DAVID LILLIE v. MANTECH INT’L. CORP. ET AL.

JPL moves to quash plaintiff’s subpoenas because the burden on JPL outweighs
the relevancy of this information. EPA at 8.2 JPL argues that it cannot adequately
prepare its employees in the eleven days before trial begins. It contends that testimony
from JPL’s employees would be duplicative of testimony that is available from ManTech
witnesses or could inquire into highly sensitive contractual information. Id. at 9–11.
Finally, JPL calls plaintiff’s subpoenas a “fishing expedition for discovery” against a
non-party that plaintiff has unsuccessfully attempted to add as a defendant in this case.
Id. at 15.
The Court declines to quash plaintiff’s subpoenas for trial. As a preliminary
matter, plaintiff provided JPL and its employees reasonable time to comply with
plaintiff’s trial subpoenas. Plaintiff served these subpoenas eleven days in advance of
trial. The federal rules contemplate that a trial subpoena may be served fewer than
fourteen days in advance, and courts have declined to quash subpoenas where parties
provided fewer than eleven days. See, e.g., Fraser v. Wyeth, Inc., 992 F. Supp. 2d 68, 95
(D. Conn. 2014) (denying a motion to quash a trial subpoena which was served on the
first day of trial for testimony to occur seven days later). Additionally, JPL admits that,
while plaintiff waited to serve the actual trial subpoenas until February 8, 2019, on
October 24, 2018, plaintiff notified JPL via email of its intention to serve these
subpoenas. EPA at 2; see dkt 129-1, Ex. 1.
The JPL witnesses who were subpoenaed may be able to provide relevant
testimony regarding the events in 2014 that allegedly led plaintiff to believe that he had
received unauthorized access to proprietary information. Based on the record before the
Court, and as plaintiff represents, each of these JPL employees participated in events
which allegedly gave rise to plaintiff’s retaliation claims against ManTech. Plaintiff
worked on an engineering project with Facto, Brown, and Fierheller. See Dkt. 48-1
(“DSUF”) No. 46, 48. De Benidictis is the Ethics Office Manager for JPL, and plaintiff
allegedly reported his receipt of unauthorized access to proprietary information to this
office. Dkt. 50 (“PSSF”) No. 36. Klohoker was a JPL Group Supervisor who

2

JPL asserts that it has standing to file this motion to quash plaintiff’s subpoenas
on behalf of its employees because JPL, as their employer, has a personal right or
privilege with respect to the subject matter requested in the subpoena. EPA at 8–9 (citing
Sparks v. seltzer, C.A. No. 05-1061, 2006 WL 2358157, *4 (E.D.N.Y. Aug. 14, 2006); In
re Grand Jury, 619 F.2d 1022, 1025 (3d Cir. 1980)). Plaintiff does not contest this issue.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-02538-CAS-SSx
Date  February 15, 2019
DAVID LILLIE v. MANTECH INT’L. CORP. ET AL.

communicated with defendant about the availability of work for ManTech employees,
like plaintiff. DSUF No. 38.
On balance, the Court thus finds that the value and relevance of the requested
testimonies outweigh the burden to JPL and its employees. Nonetheless, plaintiff has
expressed an intention to sue JPL. Accordingly, to address JPL’s concerns that plaintiff
seeks to misuse the trial subpoena in an attempt to seek discovery for a putative claim
against JPL, the Court will not permit plaintiff to solicit testimony on events unrelated to
his operative claims against defendant. The Court also will not permit cumulative
testimony. Additionally, counsel for JPL may be present at trial and may raise
objections, where appropriate, on grounds of privilege.
B.

JPL’s Request for a Protective Order

JPL also moves this Court, under Federal Rule of Civil Procedure 26, to issue a
protective order that “forbids plaintiff from inquiring into irrelevant or privileged matters,
or trade secret or conditional information from [JPL] employees.” EPA at 16. Pursuant
to Rule 26, a “court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,” arising out of a
discovery request. Fed. R. Civ. P. 26(c).
JPL appears to argue that Rule 26 should apply to limit plaintiff’s trial subpoenas
because plaintiff is “essentially using the trial subpoena as a Rule 45 pretrial discovery
subpoena.” EPA at 16. However, JPL cites no authority for its claim that Rule 26 is
applicable in these circumstances. Additionally, even assuming that Rule 26 applied to
these trial subpoenas, the Court would not issue a protective order for the same reasons
that the Court declines to quash plaintiff’s subpoenas under Rule 45.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:17-cv-02538-CAS-SSx
Date  February 15, 2019
DAVID LILLIE v. MANTECH INT’L. CORP. ET AL.

III.

CONCLUSION

For the foregoing reasons, JPL’s ex parte application to quash plaintiff’s trial
subpoenas is DENIED. JPL’s request for a protective order is also DENIED.
IT IS SO ORDERED.
:

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Initials of Preparer

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CMJ

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