Banga v. Experian Information Solutions et al

Filing 91

AMENDED ORDER re 90 Order on Motion to Quash. Signed by Magistrate Judge Edward M. Chen on 6/10/09. (bpf, COURT STAFF) (Filed on 6/10/2009) Modified on 6/11/2009 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 v. EXPERIAN INFORMATION SOLUTIONS, et al., Defendants. ___________________________________/ KAMLESH BANGA, Plaintiff, No. C-08-4147 SBA (EMC) AMENDED ORDER CONDITIONALLY DENYING PLAINTIFF'S MOTION TO QUASH (Docket No. 80) (Corrections in bold) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has moved to quash a subpoena that was served on her husband, Madan Lal. In her motion, Plaintiff argues that his deposition should be barred in its entirety based on the marital communications privilege. Plaintiff further argues that Mr. Lal has no information relevant to this litigation. The Court rejects Plaintiff's first argument. The marital communications privilege protects only confidential communications.1 See 1-18 Weinstein's Evid. Man. 18.05[3][b] (stating that the privilege "must be asserted regarding a communication" and the communication must have been made in confidence"); United States v. Lustig, 555 F.2d 737, 748 (9th Cir. 1977) (stating that the privilege applies only to matters "communicative" and "confidential in nature"; adding that "[i]t is To the extent Plaintiff asserts the privilege against adverse spousal testimony, that applies only in criminal or related proceedings. See 1-18 Weinstein's Evid. Man. 18.05[1] (noting that "the federal courts recognized two privileges affecting the marital relationship: a testimonial privilege that prevented adverse testimony by a spouse in a criminal case, and a communications privilege that protected confidential communications between spouses"). 1 1 2 3 4 5 6 7 8 9 10 well established that the privilege applies only to utterances or expressions intended by one spouse to convey a message to the other"). Observations of Mr. Lal would not be protected by the privilege; nor would knowledge he has independent of any communications with Plaintiff. Given the limited scope of the privilege, the privilege is not a reason to preclude the deposition in its entirety (although the privilege could be asserted, if necessary, with respect to specific questions asked at the deposition). As to Plaintiff's second argument, Defendant has made an adequate showing of relevance. That Plaintiff has now "withdrawn her claim for emotional distress and all damages in any way related to emotional distress," Reply at 1, does not moot the deposition. As Defendant points out, its position is that the account reviews being challenged by Plaintiff were done in conjunction with open, not closed, accounts involving Plaintiff. Mr. Lal may have information about the account that was opened in his name but with Plaintiff's social security number. In addition, Mr. Lal may have information about his own credit score and/or rating, which may have affected Plaintiff's credit and account reviews. Accordingly, the Court denies Plaintiff's motion to quash and shall allow the deposition of Mr. Lal to proceed. This ruling, however, is conditional. In her reply brief, Plaintiff argued for the first time that the deposition of Mr. Lal should not proceed at all because he is a "heart patient." Lal Decl. 9. If Plaintiff can procure a declaration from the physician who treats Mr. Lal's heart condition specifically stating that, because of his heart condition, he is unable to sit for a short deposition limited to ninety minutes in length and scheduled to take place at a time and location (e.g., his home, an office near his residence) mutually agreeable to the parties, then the Court shall reconsider whether his deposition will go forward and, if not, what alternative may be available. The declaration from the physician, if any, shall be filed by June 24, 2009. Defendant shall then /// /// /// /// /// United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 8 9 10 have until June 29, 2009, to file a response. If the deposition does go forward, then Mr. Lal should be prepared to be deposed prior to the discovery cut-off (i.e., July 10, 2009), but the Court is willing to a date after the discovery cut-off if such date is mutually agreeable to the parties. This order disposes of Docket No. 80. IT IS SO ORDERED. Dated: June 10, 2009 _________________________ EDWARD M. CHEN United States Magistrate Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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