Frary et al v. County of Marin et al

Filing 88

Discovery Order re: Dkt. No. 68. Signed by Judge Maria-Elena James on 5/22/2014. (cdnS, COURT STAFF) (Filed on 5/22/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LYNNETTE FRARY, et al.,

Case No. 12-cv-03928-MEJ

Plaintiffs,
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ORDER RE: MOTION TO COMPEL
RESPONSE TO SUBPOENA

v.
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COUNTY OF MARIN, et al.,

Re: Dkt. No. 68

Defendants.

United States District Court
Northern District of California

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Currently before the Court is a letter brief regarding Plaintiff Lynette Frary’s (“Plaintiff”)

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motion to compel a response from nonparty AT&T Mobility, LLC (“AT&T”) to a subpoena

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requesting telephone records of Defendant Officer Stephanie Commisto. Pl.’s Ltr., Dkt. No. 68.

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Plaintiff seeks to compel the cellular phone used by Officer Commisto from July 29, 2011, at 5:00

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p.m. to 7:00 a.m. on July 30, 2011. Id. at 2.

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On November 21, 2013, Plaintiff served a subpoena on AT&T, the service provider for the

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phone from which Officer Commisto is alleged to have made a call to Plaintiff during which Ms.

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Frary raised concerns that her son, Brandon Carmignani, may have consumed lethal amounts of

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narcotics prior to his arrest. Id. at 4. The subpoena was served by fax, the method designated by

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AT&T. Id. at 3. In accordance with Federal Rule of Civil Procedure (“Rule”) 45, Plaintiff also

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served notice of service of the subpoena on counsel for each of the defendants on the same date.

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Id. at 7-9. The date for compliance with the subpoena was December 4, 2013. Id. at 4.

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Defendants did not object to the subpoena. The fact discovery cutoff in this case was January 17,

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2014. Dkt. No. 62. Plaintiff timely moved to compel compliance with the subpoena.

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After service, Plaintiff’s counsel (“Counsel”) contacted AT&T to confirm receipt of the
subpoena and was advised that the request had been received but that AT&T would likely respond

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after the date specified in the subpoena. Pl.’s Ltr. at 2. With the discovery cutoff looming,

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Counsel spoke with an unnamed “subpoena service center representative” on January 13, 2014, to

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advise that a prompt response was needed. Id. Counsel further advised that he would file a

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motion to compel if no response was received by January 24, 2014. Id. The representative stated

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she would pass the message on to her managers. Id. AT&T did not produce the documents and

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has not communicated with Counsel. Id. Neither Defendants nor AT&T have objected to the

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subpoena.
Under Rule 45(a)(1), any party may serve a subpoena commanding a nonparty to “produce

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designated documents, electronically stored information, or tangible things in that person’s
possession, custody, or control.” The subpoena is subject to the relevance requirements set forth

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United States District Court
Northern District of California

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in Rule 26(b). Thus, the subpoena may command the production of documents and tangible things

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that are not privileged and are relevant to the subject matter, if they would be admissible at the

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trial or are reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P.

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26(b)(1).
A person commanded to produce documents may serve a written objection to the

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subpoena. Fed. R. Civ. P. 45(c)(2)(B). After a written objection has been made, the party serving

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the subpoena may not have access to the requested documents absent a court order, but may at any

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time move for an order to compel document production. Id.; see also Fed. R. Civ. P. 37(a) (any

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party may upon notice request an order compelling discovery or disclosure).
Under Civil Local Rule 37-2, a party moving to compel discovery must “detail the basis

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for the party’s contention that it is entitled to the requested discovery and show how the

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proportionality and other requirements of Rule 26(b)(2)1 are satisfied.” The court has discretion to

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Rule 26(b)(2) provides that the Court must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient,
less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
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determine whether to grant a motion to compel. Garrett v. City and Cnty. of San Francisco, 818

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F.2d 1515, 1519 (9th Cir. 1987).
Here, the Court finds that Plaintiff is entitled to the phone records. Plaintiff has established

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that these records are relevant because one of the central issues in this case is whether the

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defendants had knowledge that Mr. Carmignani had ingested lethal amounts of drugs prior to his

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arrest and subsequent incarceration in the Marin County Jail. Plaintiff asserts that she told Officer

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Commisto about her fear that her son had ingested these drugs by telephone after he had been

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arrested, but Officer Commisto denies that this conversation took place. Pl.’s Ltr. at 2.
For the foregoing reasons, the Court finds that Defendant Officer Commisto’s phone

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records during the time period stated above are discoverable. The records are relevant and any

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United States District Court
Northern District of California

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applicable privacy interests can be protected by limiting the disclosure to records of only the calls

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made to or received from Plaintiff. Although the defendants have not objected to the scope of the

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subpoena, the Court further finds it appropriate to limit its scope to only those records pertaining

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to calls made to or received from Plaintiff on July 29, 2011, at 5:00 p.m. to 7:00 a.m. on July 30,

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2011.

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Accordingly, Plaintiff's Motion to Compel is GRANTED.

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IT IS SO ORDERED.

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Dated: May 22, 2014
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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controversy, the parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving
the issues.
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