Zhang v. United Technologies Corporation et al

Filing 66

ORDER denying 55 Plaintiff's Motion to Compel Production of Documents. Signed by Magistrate Judge Mitchell D. Dembin on 9/6/11. (lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HONGWEI ZHANG,

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CASE NO. 10cv0660 DMS (MDD)
Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION TO COMPEL
PRODUCTION OF DOCUMENTS

vs.
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UNITED TECHNOLOGIES
CORPORATION, et al.,

[DOC. NO. 55]
Defendants.

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Background

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On March 26, 2010, this case was removed to this Court by the defendants. Plaintiff filed

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her complaint in the California Superior Court alleging wrongful termination, breach of contract,

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breach of implied covenant of good faith and fair dealing and intentional infliction of emotional

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distress by the Defendants. (See Doc. No. 1). The instant motion was accepted for filing by this

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Court on August 31, 2011. (Doc. No. 55). Defendants’ responsive pleading, mislabeled as a joint

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motion for determination of discovery dispute, was filed the same day. (Doc. No. 53).

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Discussion
Plaintiff seeks an order compelling Defendants to produce certain documents stemming

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from requests for production propounded in August 2010, and which were the subject of multiple

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meet and confers, supplemental productions and joint motions. (See Doc. No. 53, Exh. 2).

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Plaintiff also appears to be seeking to compel Defendants to produce documents that it obtained
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10cv0660 DMS (MDD)

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from a third party but it is not clear whether that request relates back to the August 2010 dispute.

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Plaintiff also seeks to have Defendant intercede in connection with a third party subpoena issued

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by the Plaintiff to a communication service provider. Plaintiff also complains that Defendants

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have not responded to new production requests.

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1.

August 2010 Requests for Production

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As best the court can discern from the moving and responsive papers, in August 2010,

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Plaintiff propounded to the Defendants a number of requests for production of documents.

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Defendants responded in October 2010. Following a number of meet and confer sessions, on

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December 3, 2010, Defendants produced additional documents and served Supplemental

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Objections and Responses. As the parties were laboring under chambers rules that required

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discovery disputes to be brought before the Court no later than sixty (60) days following the date

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that the dispute arose, on December 2, 2010, the parties jointly moved the Court to extend the

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deadline to file motions to compel. (Doc. No. 18). The motion was denied by a newly assigned

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Magistrate Judge who advised the parties that going forward, discovery disputes would be required

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to be brought to the Court no later than thirty (30) days after the dispute arose. (Doc. No. 19). On

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December 23, 2010, the parties again moved to continue the deadline for bringing discovery

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disputes before the Court, among other things. (Doc. No. 20). That motion also was denied.

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(Doc. No. 21).

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To the extent that the disputes at issue are the same disputes that arose either in August or

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December 2010, the time within which to bring the matter before the Court has expired. Plaintiff

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was represented by counsel at the time and good cause to relieve Plaintiff of the deadlines was not

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presented. Nor is good cause shown now. Plaintiff seeks relief on the grounds that litigation was

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stayed on February 17, 2011, for 120 days to allow for Plaintiff to address a medical condition.

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(Doc. No. 25). By the time that the motion for stay was filed, February 16, 2011, however, the

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time within which the discovery dispute should have been brought to Court had already expired by

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at least one month. (Doc. No. 24).

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Accordingly, to the extent that the instant motion seeks to compel production of documents

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10cv0660 DMS (MDD)

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relating to the August 2010 request for production, it is DENIED.

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2.

Edward Jones Documents

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Plaintiff has requested that the Defendants be compelled to produce documents obtained

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from Edward Jones, apparently a former employer of Plaintiff. Defendants have asserted that the

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Federal Rules of Civil Procedure do not require a party to produce documents obtained by

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subpoena from a third party. Defendants assert no authority in support of this position. To the

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contrary, Fed.R.Civ.P. 34(a)(1) requires a party to produce documents within the scope of Rule

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26(b) and which are within the responding party’s possession, custody or control . Rule 26(b)(1)

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allows for discovery of non-privileged matter relevant to a party’s claims or defenses. Neither rule

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excludes material obtained from third parties.

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Plaintiff has not shown that this request was separate from her August 2010 production

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requests. As such, this request is also untimely and is DENIED. Plaintiff retains the option to

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obtain this information directly from the third party through subpoena.

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3.

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As best the Court can discern from the record, Plaintiff issued a subpoena to AT&T for

Subpoena to AT&T

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certain telephone records pertaining to the Defendants. AT&T apparently responded that it had no

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responsive records. Plaintiff seeks an order compelling Defendants to contact AT&T and cause

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AT&T to produce responsive records that Plaintiff believes that are in the possession of AT&T.

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This motion is DENIED; there is no basis for the Court to enter such an Order. Plaintiff can obtain

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from Defendants the correct subscriber identity that it used during the relevant time frame and re-

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subpoena the records.

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4.

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Plaintiff also appears to be requesting an order compelling Defendants to respond to new

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document production requests for which the response date is not until September 15, 2011. The

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motion to compel is DENIED as premature. Moreover, if there is a dispute regarding this

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production, it must be brought before the Court in accordance with this Court’s Chambers Rules.

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///

New Production Requests

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Conclusion

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Accordingly, Plaintiff’s Motion to Compel is DENIED.

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IT IS SO ORDERED:

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DATED: September 6, 2011

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Hon. Mitchell D. Dembin
U.S. Magistrate Judge

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