Doe v. Eating Recovery Center LLC

Filing 72

ORDER signed on 3/10/2025 by Judge Lisa J. Cisneros RESOLVING 71 Discovery Letter Brief.(jaf, COURT STAFF) (Filed on 3/10/2025)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JANE DOE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 23-cv-05561-VC (LJC)
ORDER RESOLVING JOINT
DISCOVERY BRIEF

v.
EATING RECOVERY CENTER LLC,

Re: Dkt. No. 71

Defendant.

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Pending before the Court is a discovery dispute that arises from a subpoena that Defendant

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Eating Recovery Center LLC (ERC or Defendant) served on Plaintiff’s co-counsel, Don Bivens,

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LLC (Bivens firm). ECF No. 71. Defendant seeks to compel the Bivens firm to appear for a

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deposition regarding the creation or preservation of screen shots used in the Complaint and

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produced in discovery.

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Rule 45 does not require that a request to compel compliance with a subpoena be resolved

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exclusively by the court for the district where compliance is required; rather, with the parties’

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consent, the court that issued the subpoena may resolve a dispute arising from the subpoena. See

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Fed. R. Civ. P. 45(d)(2)(B)(i), (f); In re Third-Party Season 4, LLC, No. 23-cv-01318, 2025 WL

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220218, at *4 (S.D. Cal. Jan. 15, 2025). The undersigned construes Plaintiff’s counsel’s decision

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to present this dispute to this Court rather than move to quash the subpoena in the District of

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Arizona as indicative of his consent. In light of the parties’ agreement to present the dispute to

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this Court in a joint discovery letter, and having considered the letter, materials attached to the

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letter, and the relevant authorities, in particular Rules 26 and 45 of the Federal Rules of Civil

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Procedure, the Court DENIES Defendant’s request for the following reasons.

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Under Rule 26, discovery requests must be proportionate to the needs of the case. This

United States District Court
Northern District of California

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principle also applies to subpoenas, and Rule 45 protects non-parties from subpoenas that subject a

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person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). The non-party Bivens firm has provided

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Defendant with a declaration to attempt to respond to and resolve the subpoena. According to the

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Bivens firm, the declaration describes when and how the screenshots were created, and includes

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the settings for the Facebook account and web browser, among other details. Defendant declined

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to attach a copy of the declaration to the discovery letter, and failed to explain why the declaration

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provides insufficient information and what additional information will be gleaned from a

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deposition. Instead, Defendant simply contends that it did not negotiate the proposed declaration

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and therefore cannot accept it. To the extent Defendant is seeking to depose the Bivens firm about

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the creation and preservation of the screenshots Plaintiff produced, which, according to Defendant,

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omit certain data and contain markings that appear unsupported or misleading, it has not stated

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why the declaration is insufficient and why other written discovery requests are not suitable to

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address these concerns.

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Furthermore, Defendant explained that in the meet and confer process, it attempted to

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negotiate a resolution of the dispute by suggesting that Plaintiffs could recreate screenshots in a

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different format. This indicates that the present dispute derives from Defendant’s dissatisfaction

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with the format in which the screenshots were saved, and Defendant has not demonstrated that a

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deposition would resolve that issue or supply other pertinent information not already covered by

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the declaration. Because Defendant’s request fails to meet the threshold showing that its

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discovery request is proportionate to the needs of the case, the Court need not address the other

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arguments that concern work production protection, and the request to compel is DENIED.

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IT IS SO ORDERED.
Dated: March 10, 2025

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LISA J. CISNEROS
United States Magistrate Judge

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