Bickoff v. Wells Fargo Bank, N.A. et al

Filing 28

ORDER Granting Plaintiff's 27 Ex Parte Application for an Order to Quash the Deposition Subpoenas as to Jaime Steward and Remy Bickoff. Should Defendant wish to augment the record with a Response to Plaintiff's Ex Parte Application, any Response shall be filed by March 19, 2015, at 5:00 p.m. Signed by Magistrate Judge William V. Gallo on 3/18/2015.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BRUCE F. BICKOFF,
Plaintiff,

v.

WELLS FARGO BANK, N.A., et al.,
Defendants.

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Civil No. 14-CV-1065-BEN (WVG)
ORDER GRANTING PLAINTIFF’S
EX PARTE APPLICATION FOR AN
ORDER TO QUASH THE
DEPOSITION SUBPOENAS AS TO
JAIME STEWARD AND REMY
BICKOFF
[DOC. NO. 27]

I. BACKGROUND
On August 15, 2014, this Court issued a Sc
heduling Order, and set the fact discovery
cutoff date for March 27, 2015. (Doc. No. 11 at 2.) In the Scheduling Order, the Court
instructed the parties that “completed” mean s that all discovery under Rules 30-36 of the
Federal Rules of Civil Procedure must be initiated a sufficient period of time in advance of
the cut-off date, so that it m be completed by the cut-off da taking into account the tim
ay
te,
es
for services, notice, and response as set forth in the Federal Rules of Civil Procedure. Id.
The Court also instructed that all disputes concerning discovery shall be brought to the
Court’s attention no later than 30 days following the date upon which the event giving rise
to the discovery dispute occurred. Id.

The Court ordered counsel to m eet and confer

pursuant to the requirements of Fed. R. Civ. P. 26 and Local Rule 26.1(a), if a discovery
dispute arose. Id.
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II. EX PARTE APPLICATION
On March 18, 2015, Plaintiff filed anEx Parte Application for an Order to Quash the

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Deposition Subpoenas as to Remy Bickoff and Jaime Steward. (Doc. No. 27.) Plaintiff

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seeks to quash the deposition subpoenas se rved upon Mr. Remy Bickoff for a March 19,

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2015, deposition, and upon Ms. Steward fo r a March 20, 2015, deposition. Id.

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Steward’s subpoena is accompanied by 28 requests for production of docum
ents. (Doc. No.

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27-1 at 8.)

Ms.

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Mr. Remy Bickoff is Plaintiff’s son and an attorney who was Plaintiff’s counsel of

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record at the outset of this lawsuit. Although Plaintiff has retained new counsel, according

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to Plaintiff, Mr. Remy Bickoff also remains Plaintiff’s personal counsel, assisting Plaintiff’s

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current counsel of record in legal strategy and overview of documents related to the instant

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case. (Doc. No. 27-1 at 10.) Ms. Steward, also an attorney, was married to Plaintiff from

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2008 to sometime in 2010 or 2011, a nd was also Plaintiff’s legal counsel. Id. at 3. She

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represented Plaintiff in a separate dispute hehad with Defendant ove untimely construction
r

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draws and permanent financing guarantee. Id.

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Plaintiff argues that the two subpoenas for deposition and re quests for documents

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should be quashed because all of the inform
ation sought has already been produced through

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written discovery and other w itnesses who have b een deposed. (Doc. No. 27-1 at 4.)

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Further, Plaintiff claims that the deponents would reveal an enormous amount of sensitive

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litigation strategy and privileged attorney-client communication. Id. Plaintiff asserts that

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he has not, and does not, waive his attorney-client privilege, nor does he waive his marital

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privilege rights. Id. at 6.

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III. DISCUSSION

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A. PRIVILEGES

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Both Mr. Rem y Bickoff and Ms. Steward have represen ted Plaintiff in litigation

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related to the instant case, or have represented Plaintiff in the instant case. Plaintiff claims

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that Mr. Remy Bickoff is still acting as his counsel in the instant case. The attorney-client

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privilege protects confidential disclosures froma client to his attorney in order to obtain legal
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advice. U.S. v. Ruehle, 583 F.3d 600, 607 (9th Cir.2009). The attorney-client privilege is

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strictly construed because it impedes full and free discovery of the truth. Id.

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Further, Ms. Steward was m
arried to Plaintiff during a time when the underlying facts

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of the litigation were occurri ng. Partly based on Federal Rule of Evidence 501, federal

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courts recognize a marital communications privilege that exists to “protect[] the integrity of

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marriages and ensur[e] that spouses freely communicate with one another.” United State v.

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White, 974 F.2d 1135, 1138 (9th Cir. 1992). The m
arital communications privilege protects

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from disclosure private communications between spouses and may be invoked by the non-

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testifying spouse. United States v. Griffin, 440 F.3d 1138, 1143-1144 (9th Cir. 2006).

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Defendant was undoubtedly aware that Mr. Remy Bickoff was, at least at one time,

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Plaintiff’s counsel in this litigation. Mr. Remy Bickoff was Plaintiff’s counsel of record in

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this case until Septem ber 8, 2014. (Doc . No. 13.) Plaintiff claim s in his Ex Parte

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Application that Defendant was aware that hi s ex-wife, Ms. Steward, also represented

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Plaintiff in matters against Defendant. Plaintiff claims that all communications in 2008 and

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2009 from Ms. Steward to Defendant, in which she identified herself as Plaintiff’s legal

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counsel, have been produced to Defendant in written disc overy and were discussed in

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Plaintiff’s deposition on April 14, 2014. (Doc. No. 27 1 at 3.) Therefore, Defendant was

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aware of the likelihood that Plaintiff, Mr. Rem y Bickoff, or Ms. Steward would raise

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attorney-client privileges and/or the m arital communications privilege in response to the

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deposition subpoenas and requests for documents.

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B. TIMELINESS

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Under Federal Rule of Civil Procedure 45, a nonparty served with a subpoena m ay

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make objections within 14 days after service, or before the time for compliance if it is less

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than 14 days. Fed. R. Civ. P. 45(c)(2)(B).

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responsible for issuing and serv a subpoena must take reasonable steps to avoid im
ing
posing

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undue burden or expense on a person subject to the subpoena. Fed.R.Civ.P. 45(d)(1). The

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court for the d istrict where compliance is required must enforce this duty and im pose an

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appropriate sanction on a party or attorney who fails to comply. Id.

Pursuant to R ule 45, a party or attorney

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Here, the fact discovery deadline is March 27, 2015. (Doc. No. 11 at 2.) Plaintiff

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claims that Defendant served Ms. Stewar with the deposition s
d
ubpoena on March 10, 2015,

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to appear for a deposition on March 20, 2015, and that Plaintiff’s counsel did not receive a

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copy of Ms. Steward’s deposition subpoena until late on March 16, 2015. The Court finds

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that the subpoena does not allow Ms. Stewar d or Plaintiff enough time to file a proper

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objection or protective order. Although Plaintiff does not appear to allege that Mr. Rem y

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Bickoff’s deposition subpoena was untim ely served, Defendant was still aware of the

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potential complications with the service of a deposition subpoena upon Plaintiff’s counsel.

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IV. RULING

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For the reasons stated above, the Court hereby

GRANTS, without prejudice to

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Defendant, Plaintiff’s Ex Parte Application for an Order to Quash the Deposition Subpoenas

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as to Remy Bickoff and Jaime Steward.

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Due to the urgency of this matter because the deposition dates,the Court makes this
of

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decision without hearing from Defendant. Per this Court’s Chambers Rules, after service of

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an ex parte application, opposing counsel will be given until 5:00 p.m. on the next business

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day to respond. Judge Gallo’s Cham bers Rule VI. Therefore, should Defendant wish to

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augment the record with a Response to Plaintiff’s Ex Parte Application, any Response shall

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be filed by March 19, 2015, at 5:00 p.m.

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IT IS SO ORDERED.

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DATED: March 18, 2015

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Hon. William V. Gallo
U.S. Magistrate Judge

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