Uehling v. Millennium Laboratories, Inc. et al

Filing 112

ORDER granting 109 MOTION for Protective Order re: subpoena to the Ward Law Firm. Signed by Magistrate Judge Mitchell D. Dembin on 1/9/18. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RYAN UEHLING,

Case No.: 16cv2812-L-MDD
Plaintiff,

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ORDER GRANTING
DEFENDANT’S MOTION FOR
PROTECTIVE ORDER RE:
SUBPOENA TO THIRD-PARTY
WARD LAW FIRM

v.
MILLENNIUM LABORATORIES,
INC.,

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Defendant.

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[ECF NO. 109]

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Before the Court is Defendant’s Motion for Protective Order regarding a

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subpoena duces tecum served by Plaintiff upon the Ward Law Firm calling

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for the production of deposition transcripts taken in another case. (ECF No.

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109). Defendant asserts that it is the real party-in-interest and can move for

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this protection under Rule 26(c). The motion was filed on December 22, 2017.

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(Id.). Plaintiff responded in opposition on January 5, 2018. (ECF No. 111).

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Defendant raises issues regarding the propriety of the subpoena under Rule

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45, Fed. R. Civ. P., relevance, timeliness, and reports that some of the

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transcripts are subject to a protective order issued in the other case.

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//
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16cv2812-L-MDD

DISCUSSION

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1. Compliance with Rule 45

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Rule 45, Fed. R. Civ. P., governs subpoenas to third parties. Rule

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45(a)(4) requires that a party intending to serve a subpoena requiring the

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production of documents, serve a notice and copy of the subpoena on all

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parties prior to service upon the person to whom the subpoena is directed.

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Here, Plaintiff served a copy of a subpoena to the Ward Law Firm,

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dated November 3 with a compliance date of November 17, 2017, upon

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Defendant. (ECF No. 109-6). Apparently, that subpoena was not served on

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the Ward Law Firm. Instead, Plaintiff served a subpoena dated November

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Defendant complains that this subpoena was not served upon it prior to

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service to the Ward Law Firm as required. (ECF No. 109-1 at 5). Plaintiff

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appears to concede that the later-issued subpoena was not served upon

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Defendant in advance but since it is identical to the November 3 subpoena,

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Defendant was on notice. Plaintiff asserts, in fact, that Defendant should

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have sought relief from the Court, if it intended to do so, in response to the

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November 3 subpoena.

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Defendant was under no obligation to seek relief from the Court

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regarding a subpoena never served on the person to whom it was directed.

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Plaintiff should have served Defendant with a notice that it reissued the

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subpoena. Once the Ward Law Firm objected to the subpoena, Defendant

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was under no obligation to act at all.

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On November 30, 2017, the Ward Law Firm objected to the subpoena

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for improper service, requiring compliance beyond 100 miles and for

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insufficient time to comply. (ECF No. 109-7). Rule 45(d)(2)(B)(i) provides

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that after receiving an objection from the commanded person, Plaintiff had
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the option of moving for compliance, on notice to the commanded person “in

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the district where compliance is required.” Plaintiff, if it was interested in

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obtaining the documents, was required to file a motion to compel in the

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Northern District of California. Id. Plaintiff did not do so.

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Had Plaintiff moved to compel, there is every likelihood that the

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subpoena would be quashed or modified. Under Rule 45(d)(3)(A)(i), (ii), the

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court for the district in which compliance is required must quash or modify a

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subpoena that fails to allow a reasonable time to comply or requires a person

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to comply beyond the geographical limits specified in Rule 45(c)(2). Rule

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45(c)(2) provides that a subpoena for documents may command compliance at

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a place “within 100 miles of where the person resides, is employed, or

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regularly transacts business in person.” There is no evidence that the Ward

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Law Firm, located in The Woodlands, Texas, does business within 100 miles

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of San Jose, California. And requiring compliance within 3 days appears

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unreasonable considering that at least some of the transcripts may be

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covered by a protective order.

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This Court, accordingly, is without jurisdiction to compel compliance

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with this subpoena or to quash or modify it. As matters stand, having

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objected to production, the Ward Law Firm is under no obligation to comply

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with the subpoena.

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2. Relevance

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Perhaps out of an abundance of caution, Defendant brought the instant

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motion for a protective order. Regarding the merits of Defendant’s motion,

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the Court finds that there is a real question regarding relevance. This Court

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previously has addressed the extent of discoverability of “me, too” evidence in

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this case. In an Order dated August 15, 2017, the Court expressed

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skepticism regarding the admissibility of “me, too” evidence in the context of
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this False Claims Act retaliation case noting that the only cases in which this

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sort of evidence is routinely gathered and used is workplace discrimination.

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(ECF No. 72 at 3). Nonetheless, the Court found that if similarly situated

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employees were terminated for raising similar issues regarding the

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lawfulness of certain of Defendants’ business practices, this information may

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be relevant. (Id.). The Court required Defendant to produce information

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regarding employees terminated from November 15, 2010, to November 15,

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2012, whose personnel records reflect concerns expressed regarding the

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lawfulness of Millennium’s billing practices. (Id. at 3-4).
The transcripts at issue were taken in connection with Jodie Strain v.

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Millennium Laboratories, Inc., Montgomery County District Court, Texas,

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Case No. 12-02-02276-CV, apparently involving the alleged unlawful

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termination by Defendant of Ms. Strain. The case was removed to the

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District Court for the Southern District of Texas and later remanded to state

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court. Defendant asserts that Ms. Strain does not fit within the scope of

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discovery authorized by the Court because she was not terminated for raising

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issues regarding Defendant’s billing practices. (ECF No. 109-1 at 3).1

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Plaintiff alleges that Ms. Strain was terminated during the relevant period

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“after her complaints about illegal billing practices at Millennium.” (ECF No.

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111 at 4). Plaintiff cites to ¶ 6 of the Declaration of Micaela P. Banach in

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support of this proposition. (Id.). That paragraph only recites the

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employment dates of Ms. Strain and says nothing about the reasons for her

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termination. (ECF No. 111-1, ¶ 6). The Court finds that Plaintiff has not

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demonstrated relevance.

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The Court will refer to pagination supplied by CM/ECF rather than original pagination
throughout.
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3. Protective Order

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The Strain case protective order was filed as an exhibit to this motion.

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(ECF No. 109-4). It has continuing vitality because it provides that even

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after the litigation closed, a party seeking records governed by the protective

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order could only receive it with permission of the producing party or by

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seeking a modification from the Court. (Id. ¶ 14). Even if the Court could be

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convinced that some of the depositions taken in Strain may contain relevant

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information, permission would have to be obtained from the court in Strain to

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produce any such information covered by the protective order in that case.

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4. Timeliness

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Defendant also complains about the timing of the subpoena. The

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Scheduling Order issued by the Court provides that “[a]ll subpoenas issued

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for discovery must be returnable on or before the discovery cutoff date.” (ECF

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No. 54, ¶3). The initial subpoena to the Ward Law Firm was dated

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November 3, 2017, with a compliance date of November 17, 2017. (ECF No.

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109-6). That subpoena, as discussed above, was served on Defendant but not

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on the Ward Law Firm, the target of the subpoena. At that time, the

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operative Scheduling Order called for discovery to close on November 10,

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2017. (ECF No. 75). On November 1, 2017, the parties jointly moved the

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Court to extend all discovery deadlines to December 22, 2017. (ECF No. 93).

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The next day, November 2, 2017, the Court granted the motion in part,

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extending only the deadline to complete depositions to December 8, 2017.

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(ECF No. 94).

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The initial subpoena conflicted with the Scheduling Order but the Court

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finds no fault considering that the parties had agreed and moved the Court to

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extend discovery to December 22, 2017. The Court accepts that its rejection,

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in part, of that motion, was unexpected. That said, when Plaintiff reissued
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and first served the subpoena on the Ward Law Firm on November 28, 2017,

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it was 18 days after the close of document discovery. The subpoena is not

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enforceable.
CONCLUSION

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Defendant’s Motion for Protective Order is GRANTED.

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IT IS SO ORDERED.

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Dated: January 9, 2018

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