Steshenko v. McKay et al

Filing 378

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S ORDER ENTERED JUNE 4, 2012. Signed by Judge Richard Seeborg on 7/3/12. (cl, COURT STAFF) (Filed on 7/3/2012) Modified on 7/3/2012 (cl, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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GREGORY NICHOLAS STESHENKO,
Plaintiff,

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v.

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ORDER OVERRULING PLAINTIFF’S
OBJECTIONS TO MAGISTRATE
JUDGE’S ORDER ENTERED JUNE 4,
2012

THOMAS MCKAY, et al.,

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No. C 09-5543 RS

Defendants.
____________________________________/

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Plaintiff Gregory Steshenko challenges certain aspects of a discovery order issued by the

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assigned magistrate judge on June 4, 2012. A district court may modify a magistrate judge’s ruling

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on a non-dispositive matter only if the order is “clearly erroneous” or “contrary to law.” 28 U.S.C. §

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636(b)(1)(A); Fed.R.Civ.P. 72(a); Bahn v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir.

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1991). Because Steshenko has shown no such error here, his objections (Dkt. No. 352) will be

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overruled.

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1. Motions to quash subpoenas

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As explained in more detail in the order overruling the objections to the magistrate judge’s

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April 25, 2012, orders, Steshenko’s contention that this court has jurisdiction to resolve disputes

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regarding the propriety of subpoenas issued under the authority of other districts lacks merit. See

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S.E.C. v. CMKM Diamonds, Inc., 656 F.3d 829, 832 (9th Cir. 2011). Steshenko’s objection to the

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magistrate judge’s ruling is overruled.

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2. Motion to disclose source of information leading to subpoena

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Defendants issued a subpoena to San Jose State University seeking Steshenko’s academic

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records. Steshenko surmised that defendants must have learned that he attended San Jose State

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through his former counsel’s improper disclosure of allegedly privileged information, and moved to

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compel defendants to disclose any such information received. (Dkt. No. 243). On reply, Steshenko
asserted that his motion had already served its intended purpose, because defendants’ opposition

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For the Northern District of California

United States District Court

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disclosed that they had run an internet search for “Gregory Steshenko San Jose,” which returned a

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result containing an indication that Steshenko possibly was taking at least one course at San Jose

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State. See Docket No. 271 at 2:22-23 (“This motion has achieved its purpose. Defendants disclosed

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the search engine parameters that they used . . . .”); 3:7-8 (“Defendants could have avoided this

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motion if they disclosed the true search engine parameters during the meet and confer events with

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Plaintiff.”) Not surprisingly, in light of this assertion by Steshenko, the magistrate judge concluded

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that the motion was moot, and denied it on that basis. June 4, 2012 Order at 4:24-25.

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Steshenko now challenges the denial of the motion, contending that the magistrate judge

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used “circular logic” to conclude that he was not entitled to discover evidence of any transmission of

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privileged information from his former counsel to defendants, because there is no indication any

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such improper communications occurred. Even assuming Steshenko’s prior admission that the

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motion had achieved its purpose does not bar him from continuing to pursue this issue, he has

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misconstrued the magistrate judge’s observations in the June 4th Order. Nothing in the ruling

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suggests that Steshenko necessarily was required to have evidence of the transmission of privileged

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information before inquiring into the matter. Rather, even assuming Steshenko had a reasonable

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basis to be concerned that his prior counsel might have disclosed privileged information to

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defendants, the magistrate judge found that defendants have adequately established that no such

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misconduct occurred, and that their discovery requests were formulated based on publicly available

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information (or, in the case of subpoenas served on certain other institutions, based on a document

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included in Steshenko’s formal discovery responses).

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It appears that Steshenko personally continues to find it suspicious that defendants would run

are all based in Santa Cruz County or Monterey. Whether counsel’s inclusion of “San Jose” in the

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search parameters was a fortuitous mistake, or calculated strategy, it is not inherently suspicious,

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given the relative importance of San Jose in the general geographic region. It provides no rational

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basis for calling into question the sufficiency of defendants’ showing that they received no

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information from Steshenko’s former counsel outside of formal discovery. Steshenko has failed to

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show that the magistrate judge’s ruling was clearly erroneous or contrary to law, and his objection is

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For the Northern District of California

an internet search with his name in conjunction with “San Jose,” given that he and the defendants

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United States District Court

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overruled.

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3. Sanctions for subpoenaing records on a “rush” basis

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Through a document service, defendants issued a subpoena to University of California,

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Santa Cruz Extension, Silicon Valley, (“UCSC”) for copies of Steshenko’s academic records. The

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document service enclosed the customary $15 witness fee with the subpoena. UCSC mailed out the

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responsive documents the same day it received the subpoena, despite the fact that it specified a

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production date fourteen days later.

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For reasons that are still unexplained, UCSC then sent Steshenko a “receipt” stating that he

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had made a check payment of $15 as a “rush fee.” Upon inquiry, Steshenko was advised by UCSC

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that the receipt related to the payment made by the document service in connection with the

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subpoena. From this, Steshenko concluded that defendants deliberately paid a “rush fee,” which he

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characterizes as a bribe, to ensure that UCSC would produce his records to them before he had an

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opportunity to object or to have the subpoena quashed. Steshenko moved to impose $3000 in

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sanctions for such “dirty tricks.” (Dkt. No. 246).

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The magistrate judge denied the motion, finding no evidence that defendants paid any “rush

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fees” in an effort to deprive Steshenko of his rights. That conclusion is neither clearly erroneous nor

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contrary to law. The evidence shows that defendants and their document service followed ordinary

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procedures in serving the subpoena, tendering a $15 witness fee, and specifying a production date

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fourteen days later. UCSC’s election to mail out the responsive documents the same day it received

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the subpoena does not support an inference of any wrongdoing by defendants. The “receipt”

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emailed to Steshenko, while inexplicable, was erroneous on its face. There is no dispute that

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Steshenko had made no payment to UCSC whatsoever; the characterization of a “rush fee” is

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entitled to no weight. Whatever UCSC may have intended by sending the “receipt,” it does not

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support a conclusion that defendants or their document service did anything improper. Steshenko’s

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objection to the magistrate judge’s ruling is overruled.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: 7/3/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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