Fishman v. Tiger Natural Gas, Inc.

Filing 341

Order denying #319 Motion to Compel. Signed by Judge Thomas S. Hixson on 12/21/2018. (tshlc2S, COURT STAFF) (Filed on 12/21/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EMILY FISHMAN, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 17-cv-05351-WHA (TSH)
DISCOVERY ORDER

v.

Re: Dkt. No. 319
TIGER NATURAL GAS, INC., et al.,
Defendants.

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Defendant Tiger Natural Gas, Inc. (“Tiger”) has moved to compel the Pacific Gas and

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Electric Company (“PG&E”) to comply with a deposition and document subpoena. ECF No. 319.

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Some procedural background is helpful to understand the motion. On November 20, 2018 Judge

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Alsup granted class certification with regard to the California recording law, but denied it with

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respect to the California consumer protection statutes, citing Plaintiffs’ inability to show they can

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obtain records from PG&E to prove damages on a classwide basis. ECF No. 250.

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The following day Plaintiffs served a subpoena on PG&E for a December 7, 2018

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deposition concerning six topics about PG&E’s billing data and records. Plaintiffs served an

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amended subpoena on November 29, 2018 with nine topics of examination, again all about billing

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data and records. The following day Tiger served a Rule 45 notice on Plaintiffs of Tiger’s intent

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to serve a subpoena on PG&E. The subpoena’s topics for examination incorporated by reference

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all of Plaintiffs’ topics and added three more. It also noticed the deposition for December 7, at the

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same location Plaintiffs’ subpoenas had noticed. In addition, Tiger’s subpoena requested

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production of certain records (unlike Plaintiffs’ subpoenas, which sought only testimony about

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records). Tiger served the subpoena on PG&E on December 3.

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PG&E emailed Plaintiffs its objections to their subpoenas on December 5, 2018. Plaintiffs

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and PG&E then worked out an agreement that Plaintiffs would drop their deposition subpoenas in

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exchange for the Declaration of Kellie Reem. (In brief, the Reem declaration states that PG&E

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retains certain data and records since at least July 2013.) At that point PG&E decided not to show

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up for the deposition noticed for December 7. However, Tiger had not withdrawn its own

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subpoena to PG&E; nor had PG&E served any objections to Tiger’s subpoena. At the deposition,

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Tiger made a record of PG&E’s nonappearance.

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This looks bad, but there is no evidence that the PG&E attorney responsible for handling

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Tiger’s subpoena actually knew before December 10 that PG&E had in fact been served with one.

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There was a delay in PG&E’s assigned paralegal’s realizing that the subpoena had been received
due to the large number of subpoenas PG&E received in that time period and the backlog in

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United States District Court
Northern District of California

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logging them following the Thanksgiving holiday. In any event, Tiger did not get to depose

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PG&E. On December 13, 2018, PG&E emailed Tiger its objections to the latter’s subpoena.

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On December 16, 2018 Plaintiffs filed a supplemental motion to certify a class under the

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consumer protection statutes, saying that the Reem declaration shows that the data exist to support

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a finding of classwide damages. Judge Alsup denied this motion, stating that “plaintiffs may have

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shown that certain data exists but they have not shown that this data is available,” i.e., that

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Plaintiffs can obtain it. ECF No. 331.

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With that background, the Court turns to the merits of the motion. As an initial matter, the

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Court finds that PG&E has not waived its objections to Tiger’s subpoena. While PG&E should

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have done a better job tracking the subpoena, serving a subpoena only four days before the date of

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compliance was unreasonable and prejudiced PG&E’s ability to respond in a timely fashion.

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Rule 45 provides that a district court “must quash or modify a subpoena that” “fails to

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allow a reasonable time to comply” or that “subjects a person to undue burden.” Tiger’s subpoena

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fails both of those criteria. With respect to document requests 1-5, PG&E states that although this

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information is contained in its Customer Care and Billing database, PG&E does not have a

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standard reporting tool that could pull the requested information, so it would have to build, test

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and verify a customized report. In addition, because these requests include metering information

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and personal identifying information, PG&E would need to provide the affected customers – here,
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thousands of them – with seven days’ notice and an opportunity to object before producing the

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requested data. It was impossible for PG&E to comply with these requests in the four days

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between service of the subpoena on December 3 and the December 7 deadline for compliance, or

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even in the 11 days between service of the subpoena and the close of fact discovery on December

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14. Requests 6 and 7 are much narrower, to be sure, because they relate only to the named

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Plaintiffs. But the notice and opportunity to object requirements in Gas Rule 27 also made

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compliance by the return date of December 7 a literal impossibility and by the December 14 close

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of fact discovery a practical impossibility. Request 8 is again extremely broad, would have

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triggered the notice requirement, and could not have been complied with by either December 7 or

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14. Deposition topic 1 incorporated by reference all of the Plaintiffs’ deposition topics, and, when

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United States District Court
Northern District of California

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combined with topics 2-4, made four days’ notice (or even 11, if measured against the close of fact

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discovery instead of the deadline for compliance stated in the subpoena) an unreasonable time to

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comply. Put simply, this was a broad subpoena. A litigant that wants this much information from

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a non-party should not wait until the closing days of fact discovery to serve a subpoena like this,

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and then demand compliance in four days.

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Tiger argues it is not to blame for the late service of the subpoena, contending that Judge

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Alsup’s November 20, 2018 class certification order is what put it on notice that it needed to

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subpoena PG&E for this information. See ECF No. 250 at 4 (“Going forward, Tiger bears the

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burden of demonstrating that any particular class member does not fit within the class definition

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because she switched to Tiger’s program from another CTA.”). In reality, that argument has

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nothing to do with most of the deposition topics in Tiger’s subpoena, nor with document requests

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3-8. It does relate to document requests 1 and 2 but does not change the fact that there is no way

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PG&E could have produced this data in the four days Tiger demanded or even in the 11 days

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between December 3 and the close of fact discovery. The Court notes that the only reason Tiger

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bears the burden of showing that a particular alleged class member is not actually a member of the

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recording law class is Tiger’s “own failure to maintain records” as required by Gas Rule 23. Id.

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However, one issue remains. Tiger’s subpoena had both an offensive purpose (get
information) and a defensive purpose (undermine information PG&E might give to Plaintiffs in
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response to Plaintiffs’ subpoenas). Plaintiffs’ subpoenas were an attempt to get information from

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PG&E so they could use it in support of their renewed class certification motion. The defensive

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purpose of Tiger’s cross-notice, and the reason its subpoena incorporated all of Plaintiffs’

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deposition topics by reference, was to ensure that Tiger could cross-examine PG&E concerning

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whatever information PG&E provided to Plaintiffs. After all, Plaintiffs were trying to get

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information to support their renewed class certification motion, and Tiger justifiably wanted to

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ensure it had a seat at the table and could also ask the witness questions. When Plaintiffs dropped

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their deposition subpoenas in exchange for a declaration, and then PG&E did not show up for

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Tiger’s noticed deposition, Tiger’s ability to cross-examine PG&E was destroyed. Plaintiffs then
ran into Court with the Reem declaration in support of their renewed class certification motion,

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United States District Court
Northern District of California

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untroubled by the possibility that the declaration could be undermined by adverse testimony –

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because there wouldn’t be any PG&E testimony. This was unfair to Tiger.

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At oral argument the Court offered to order PG&E to sit for deposition concerning the

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content of the Reem declaration. Tiger declined the offer. Yes, at the time it seemed like Tiger

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had been prejudiced by the production of the uncross-examined declaration, but it doesn’t matter

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anymore. Judge Alsup’s recent order means that the Reem declaration got Plaintiffs nowhere, and

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Tiger sees no need to cross-examine PG&E about it.

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Accordingly, Tiger’s motion to compel PG&E, in its entirety, is DENIED.

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IT IS SO ORDERED.

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Dated: December 21, 2018

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THOMAS S. HIXSON
United States Magistrate Judge

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