Mc Erlain v. Park Plaza Towers Owners Association et al

Filing 51

ORDER REGARDING 48 JOINT DISCOVERY DISPUTE LETTER FILED ON DECEMBER 10, 2013. Signed by Magistrate Judge Laurel Beeler on 12/19/2013.(lblc2, COURT STAFF) (Filed on 12/19/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION PATRICK JOHN MCERLAIN, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 No. C 13-03232 MMC (LB) Plaintiff, ORDER REGARDING JOINT DISCOVERY DISPUTE LETTER FILED ON DECEMBER 10, 2013 v. PARK PLAZA TOWERS OWNERS ASSOCIATION, et al., [Re: ECF No. 48] 15 16 Defendants. ___________________________________/ 17 INTRODUCTION 18 The parties dispute whether Plaintiff Nancy McErlain may subpoena certain documents from 19 third-party Coldwell Banker about a defendant in her son’s related case. See Joint Letter Brief, ECF 20 No. 48. Based on the parties’ joint letter brief and their arguments at the hearing on December 19, 21 2013, the court holds that the certain of the information sought is relevant. The court orders 22 production of the disclosure statement, the agency agreement, and the listing agreement, subject to 23 the privilege review discussed below. STATEMENT 24 25 Park Plaza Towers, located at 110 Park Road in Burlingame, California, is a six-story 26 condominium community comprised of 45 condominium units. The common areas of the Property, 27 is under the control of the Park Plaza Towers Owners Association (the “Association”), by and 28 through its Board of Directors. The Association (including its Board and members) are governed by ORDER (C13-03232 MMC (LB)) 1 the Association’s governing documents, including its Covenants, Conditions and Restrictions 2 (“CC&Rs”) 3 Patrick McErlain, who has been diagnosed with bipolar disorder, lives at Park Plaza Towers in a 4 unit owned by his mother, Nancy McErlain. In this action, McErlain v. Park Plaza Towers Owners 5 Association, No. C13-03232 MMC (LB) the “3232 Action”), he has sued the Association, the 6 property manager (David Behling), the property management company (Behling Property 7 Management Corp.), and 10 building residents—including Julie Robles—who may or may not be 8 members of the Association’s Board of Directors (collectively, “Defendants”), for disability 9 discrimination in violation of federal and state law. Essentially, he alleges that Defendants have and assaultive behavior toward him, encouraging such behavior, or failing to restrain such behavior. 12 For the Northern District of California tried to get him to move out of the Park Plaza Towers by actively engaging in disparaging, mocking 11 UNITED STATES DISTRICT COURT 10 See generally First Amended Complaint, 3232 Action, ECF No. 3. 13 Mr. McErlain’s mother, Nancy McErlain, also has sued some of Defendants. In her action, 14 McErlain v. Park Plaza Towers Owners Association, No. C13-04384 MMC (LB) (the “4384 15 Action”), she has sued the Association, Mr. Behling, and Behling Property Management Corp. for 16 disability discrimination and for breach of the CC&Rs. See generally Complaint, 4384 Action, ECF 17 No. 1. 18 On November 11, 2013, Ms. McErlain served Coldwell Banker, a non-party to this action, with a 19 document subpoena. 12/10/2013 Letter, ECF No. 48 at 1. Ms. McErlain wants Coldwell Banker to 20 produce documents between Julie Robles, who formerly owned a condominium unit in the Park 21 Plaza Towers and who is a defendant in the 3232 Action, and Coldwell Banker, which served as her 22 real estate broker/agent concerning the sale of her unit. Id. Specifically, Ms. McErlain’s subpoena 23 to Coldwell Banker requests Coldwell Banker’s “entire file containing all correspondence and 24 emails between real estate agent Thomas Neel and anyone else affiliated with Coldwell Banker and 25 Julie R. Robles and anyone else concerning the listing and sale of the property located at 110 Park 26 Road, No. 102, Burlingame, CA 94010, including your listing agreement with Julie R. Robles, the 27 sales contract, disclosures, and all sales related documents from the beginning to the present.” Id. 28 On November 21, 2013, Defendants filed, in the 3232 Action (which is Mr. McErlain’s action) a ORDER (C13-03232 MMC (LB)) 2 1 motion to quash Ms. McErlain’s subpoena. Motion to Quash, ECF No. 37. But because Ms. 2 McErlain, rather than Mr. McErlain, served the subpoena, the subpoena presumably relates to the 3 4384 Action. Thus, Defendants should have filed their motion to quash in the 4384 Action, not the 4 3232 Action. The district referred the motion to the undersigned for resolution, and the undersigned 5 promptly dismissed the motion without prejudice and ordered the parties to comply the procedures 6 for resolving discovery disputes that are outlined in the undersigned’s standing order. 12/4/2013 7 Order, ECF No. 47. Those procedures allow parties to file joint discovery dispute letters, rather than 8 discovery motions. 9 On December 10, 2013, Ms. McErlain and Defendants filed a joint letter in the 3232 Action. Defendants ask the court to quash the subpoena because it seeks information that is irrelevant to the 12 For the Northern District of California 12/10/2013 Letter, ECF No. 48. Again, it should have been filed in the 4348 action. In it, 11 UNITED STATES DISTRICT COURT 10 claims and defenses in this action and because it seeks communications that are protected by the 13 attorney-client privilege and thus is overbroad. Id. at 2. 14 15 At the December 19, 2013 hearing, Ms. McErlain limited her request to the disclosure statement, the agency agreement, and the listing agreement only. 16 17 ANALYSIS I. LEGAL STANDARD 18 A. Standing and Rule 45 Subpoenas 19 “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a 20 party to the action, unless the objecting party claims some personal right or privilege with regard to 21 the documents sought.” 9A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & 22 PROCEDURE § 2459 (3d ed. 2008); see also Crispin v. Christian Audigier, Inc., No. CV 09–09509 23 MMM (JEMx), 2010 WL 2293238, at *5 (C.D. Cal. May 26, 2010) (quoting Wright & Miller and 24 providing additional citations). 25 B. Scope of Rule 45 Discovery 26 Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena. The scope of 27 the discovery that can be requested through a subpoena under Rule 45 is the same as the scope under 28 Rule 26(b). Fed. R. Civ. P. 45 Advisory Comm.’s Note (1970) (“[T]he scope of discovery through a ORDER (C13-03232 MMC (LB)) 3 1 subpoena is the same as that applicable to Rule 34 and other discovery rules.”); Fed. R. Civ. P. 34(a) 2 (“A party may serve on any other party a request within the scope of Rule 26(b).”). Unless 3 otherwise limited by court order, Rule 26(b) allows a party to obtain discovery concerning “any 4 nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). This 5 includes “the identity and location of persons who know of any discoverable matter.” Id. “Relevant 6 information need not be admissible at the trial if the discovery appears reasonably calculated to lead 7 to the discovery of admissible evidence.” Id. 8 A court must protect a nonparty subject to a subpoena if a subpoena “requires disclosure of 9 privileged or other protected matter” or the subpoena “subjects a person to undue burden.” Fed. R. obtained from a source that is more convenient or less burdensome, or if the burden of producing it 12 For the Northern District of California Civ. P. 45(c)(3). A court must also limit discovery if it is unreasonably duplicative, if it can be 11 UNITED STATES DISTRICT COURT 10 outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C). Moreover, upon motion from a party who 13 certifies that they have conferred in good faith with the opposing party, a court may also “issue an 14 order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or 15 expense[.]” Fed. R. Civ. P. 26(c). The issuing court also may quash a subpoena if it determines that 16 the subpoena requires disclosure of “a trade secret or other confidential research, development, or 17 commercial information.” Fed. R. Civ. P. 45(c)(3(B). 18 “On a motion to quash a subpoena, the moving party has the burden of persuasion under Rule 19 45(c)(3), but the party issuing the subpoena must demonstrate that the discovery sought is relevant.” 20 Chevron Corp. v. Donziger, 12–MC–80237 CRB (NC), 2013 WL 4536808, at *4 (N.D. Cal. Aug. 21 22, 2013) (citing EON Corp. IP Holdings, LLC v. T–Mobile USA, Inc., No. 12–80082 LHK (PSG), 22 2012 WL 1980361, at *1 (N.D. Cal. June 1, 2012)). 23 II. APPLICATION 24 As an initial matter, the court finds that Ms. Robles—but not Defendants as a group—has 25 standing to ask the court to quash the subpoena. The documents Ms. McErlain seeks from Coldwell 26 Banker are Ms. Robles’s communications with her real estate agent. The court also notes that Ms. 27 McErlain does not contend that Ms. Robles lacks standing here. Accordingly, the court construes 28 the arguments made by Defendants as ones made by Ms. Robles only. ORDER (C13-03232 MMC (LB)) 4 1 As for the substantive arguments, the court first addresses Ms. Robles’s privilege argument. In 2 short, the court finds it unpersuasive. First, Ms. Robles has provided no reason why these requested 3 communications might include privileged ones. Rather, in a single sentence, she merely says that 4 the subpoena asks for communications from “anyone” that are in the “entire file,” and those 5 communications “could” include privileged ones. Second, even if there are privileged 6 communications, and as Ms. McErlain agreed at the hearing, Ms. Robles can withhold any 7 privileged communications and produce a privilege log. 8 9 And although it is a close call, the court also is not persuaded by Ms. Robles’s relevance argument. It is Ms. McErlain’s burden to show relevance, and the court believes that she has, albeit Management Corp. discriminated against her son. She contends that Ms. Robles was one of the 12 For the Northern District of California barely. Ms. McErlain claims, essentially, that the Association, Mr. Behling, and Behling Property 11 UNITED STATES DISTRICT COURT 10 residents at the Park Plaza Towers who instigated and carried out discriminatory activity on behalf 13 of the Association’s Board of Directors. 12/10/2013 Letter, ECF No. 48 at 3. She explains that on 14 May 30, 2013, Ms. Robles obtained a restraining order against her son, and Ms. Robles sold her unit 15 shortly thereafter. Id. She argues that the requested communications are relevant because, for 16 example, “[t]he subpoenaed file should contain a disclosure statement, per Calif. Civil Code section 17 1102, filled out personally by Ms. Robles, in which she discloses ‘all known material or significant 18 items affecting the value or desirability of the property.’” Id. Ms. McErlain “expects” that Ms. 19 Robles filled out the disclosure statement before May 2013, and Ms. McErlain wants to see 20 “[w]hether [Ms.] Robles’[s] descriptions of her situation with [Mr.] McErlain in her disclosure 21 statement differ from those in” her other testimony. Id. The disclosure statement, she argues, “is 22 relevant not only to [Ms.] Robles’[s] credibility, but also to her motivation in discriminating against 23 [Mr. McErlain], obtaining the restraining order, and sending multiple email and letter reports to the 24 [Association’s Board of Directors], the police, fellow neighbors, and the courts about [Mr. 25 McErlain], encouraging them to discipline and/or arrest him.” Id. At the hearing, she also noted 26 that the agency agreement and the listing agreement are relevant to timing. 27 28 Other than saying that Ms. McErlain’s requests have nothing to do with her claims, Ms. Robles makes no real attempt to argue why Ms. McErlain’s explanation is not persuasive. Instead, she ORDER (C13-03232 MMC (LB)) 5 1 asserts that Ms. McErlain’s subpoena is a “fishing expedition” that seeks to “punish” and “humilate” 2 her. Id. at 2-3. The court cannot see, however, how the disclosure of some communications relating 3 to the sale of her unit is humiliating or would punish her, and given Ms. McErlain’s explanation, 4 also does not believe that the subpoena is merely a “fishing expedition.” 5 Accordingly, the court finds that the information requesting by Ms. McErlain’s subpoena could 6 lead to the discovery of admissible evidence and denies Ms. Robles’s request for an order quashing 7 the subpoena. As discussed at the hearing, the court limits the discovery to be produced to the 8 disclosure statement, the agency agreement, and the listing agreement. Coldwell Bankder may 9 produce them through Ms. Robles’s counsel, who can conduct a privilege review. In doing so, she information in the agreements, counsel must meet and confer to see if they can implement a process 12 For the Northern District of California must follow the procedures set forth in the undersigned’s standing order. And if there is private 11 UNITED STATES DISTRICT COURT 10 to protect that information. Given the agreements are relevant to timing, the court is confident that 13 the parties can address this issue. 14 CONCLUSION 15 This disposes of ECF No. 48. 16 IT IS SO ORDERED. 17 Dated: December 19, 2013 _______________________________ LAUREL BEELER United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER (C13-03232 MMC (LB)) 6

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