Hawaii Regional Council of Carpenters et al v. Yoshimura

Filing 57

ORDER GRANTING DEFENDANT LANCE YOSHIMURA'S MOTION TO MODIFY SUBPOENA re 29 , 55 - Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 2/17/2017. (emt, )CERTIFICATE OF SERVICEParticipants registe red to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAII REGIONAL COUNCIL
OF CARPENTERS, AND UNITED
BROTHERHOOD OF CARPENTERS
AND JOINDERS OF AMERICA,
LOCAL 745,

)
)
)
)
)
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Plaintiffs,
)
)
vs.
)
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LANCE YOSHIMURA,
)
)
Defendant.
)
_________________________ )

CIVIL NO. 16-00198 ACK-KSC
ORDER GRANTING DEFENDANT
LANCE YOSHIMURA’S MOTION TO
MODIFY SUBPOENA

ORDER GRANTING DEFENDANT LANCE YOSHIMURA’S
MOTION TO MODIFY SUBPOENA
Before the Court is Defendant Lance Yoshimura’s
Motion to Modify Subpoena, filed October 7, 2016.
Plaintiffs Hawaii Regional Council of Carpenters, and
United Brotherhood of Carpenters and Joinders of
America, Local 745 filed an Opposition on November 30,
2016.

Defendant filed a Reply on December 7, 2016.
This matter came on for hearing on February 15,

2017.

Kurt Klein, Esq. and Jessica Wan, Esq. appeared

on behalf of Plaintiffs.

James Wade, Esq. and Richard

Wilson, Esq. appeared on behalf of Defendant.

After

careful consideration of the parties’ submissions, the

applicable law, and the arguments of counsel, the Court
HEREBY GRANTS the Motion for the reasons set forth
below.
BACKGROUND
Plaintiffs commenced this action against
Defendant, alleging that he violated his fiduciary
duties and violated the Federal Wiretap Statute.
Plaintiffs claim that Defendant stole union records and
made secret illegal recordings.

Defendant was

Plaintiffs’ employee from 2000 until March 7, 2014,
when he was terminated for violating whistleblowing
laws.
On September 22, 2016, Plaintiffs served
subpoenas to produce documents upon AT&T and T-Mobile,
requesting Defendant’s cell phone records; specifically
“a complete call detail report and text messaging from
January 1, 2013 to present.”1
Ex. 1.

Mem. in Supp. of Mot.,

October 14, 2016 was the assigned compliance

1

Curiously, Plaintiffs only addressed the
subpoena issued to AT&T, even though Defendant moves to
modify both.
2

date for both subpoenas.
On October 7, 2016, Defendant filed this
Motion.
LEGAL STANDARD
When a party or attorney issues a subpoena, he
or she “must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the
subpoena.”

Fed. R. Civ. P. 45(d)(1).

Any order

compelling production or inspection following an
objection to a subpoena “must protect a person who is
neither a party nor a party’s officer from significant
expense resulting from compliance.”

Fed. R. Civ. P.

45(d)(2)(B).
A subpoenaed party may move to quash or modify
subpoenas on various grounds.

On timely motion, a

court must quash or modify a subpoena that:

“(i) fails

to allow a reasonable time to comply; (ii) requires a
person to comply beyond the geographical limits
specified in Rule 45(c); (iii) requires disclosure of
privileged or other protected matter, if no exception
or waiver applies; or (iv) subjects a person to undue
3

burden.”

Fed. R. Civ. P. 45(d)(3)(A).

On the other

hand, a court may quash or modify a subpoena if it
requires:

“disclosing a trade secret or other

confidential research, development, or commercial
information.”

Fed. R. Civ. P. 45(d)(3)(B)(i).

“[A]

court determining the propriety of a subpoena balances
the relevance of the discovery sought, the requesting
party’s need, and the potential hardship to the party
subject to the subpoena.”

Am. Broad. Cos., Inc. v.

Aereo, Inc., No. CV-12-80300-RMW, 2013 WL 1508894, at
*3 (N.D. Cal. Apr. 10, 2013).
DISCUSSION
Defendant moves to modify the time period set
out in the subject subpoenas to relate to the time
period relevant to Plaintiffs’ claims - “January 1,
2013 to March 7, 2014”.

Alternatively, Defendant

proposes “January 1, 2013 to June 7, 2014” because he
was voted out of union office on June 7, 2014.
Defendant asserts the following bases to support
modification:

1) once he was terminated (or left union

office), he could no longer steal records or make
4

surreptitious recordings; 2) the subpoenas are unduly
burdensome; and 3) the subpoenas are designed to harass
inasmuch as Plaintiffs have already received relevant
records from discovery in state court.
Plaintiffs counter that Defendant lacks
standing to modify the subpoenas; that the requested
information is relevant because Defendant continued to
make audio recordings even as recently as October 2015;
and that the requested phone records may reveal actions
to manipulate, forward, access, and/or use files.
A.

Standing
As a threshold matter, the Court must determine

whether Defendant has standing to seek modification of
the subpoenas.2

“Ordinarily a party has no standing to

2

The Court additionally finds that the Motion was
timely filed. A motion to quash must be timely filed.
Fed. R. Civ. P. 45(d)(3)(A). “‘Timely’ is not defined
in the rule nor elaborated upon in the advisory
committee’s notes.” U.S. ex rel. Pogue v. Diabetes
Treatment Centers of Am., Inc., 238 F. Supp. 2d 270,
278 (D.D.C. 2002). Court generally have interpreted
“‘timely’ to mean within the time set in the subpoena
for compliance.” Id. (citing Innomed Labs, LLC v. Alza
Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002) (noting that
in the absence of a definition of “timely” in Rule 45,
“it is reasonable to assume that the motion to quash
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seek to quash a subpoena issued to someone who is not a
party to the action unless the party claims some
personal right or privilege with regard to the
documents sought.”

9A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2459 (2d ed.
2007) (emphasis added).
The Ninth Circuit has yet to address the
question of whether a party has standing
to bring a motion to quash since usually
only the subpoenaed non-party may move to
quash. The general rule, however, is that
a party has no standing to quash a
subpoena served upon a third party, except
as to claims of privilege relating to the
documents being sought.
Cal. Sportfishing Prot. All. v. Chico Scrap Metal,
Inc., 299 F.R.D. 638, 643 (E.D. Cal. 2014) (citation
omitted).3

A party has “a personal interest in securing

should be brought before the noticed date of the
scheduled deposition”). Here, Defendant filed the
Motion prior to the subpoenas’ compliance dates.
3

In re Rhodes Cos., LLC, 475 B.R. 733, 738 (D.
Nev. 2012) (citing Brown v. Braddick, 595 F.2d 961, 967
(5th Cir. 1979); Crispin v. Christian Audigier, Inc.,
717 F. Supp. 2d 965, 973–74 (C.D. Cal. 2010); Platinum
Air Charters, L.L.C. v. Aviation Ventures, Inc., No.
2:05–CV1451–RCJLRL, 2007 WL 121674, at *2 (D. Nev. Jan.
10, 2007)) (“Although this rule has not been applied by
the United States Court of Appeals for the Ninth
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the privacy of his cell phone records.”

Ademiluyi v.

Phillips, No.2:14-CV-00507- MMD, 2014 WL 7012493, at *2
(D. Nev. Dec. 12, 2014);

Doe v. City of San Diego, No.

12-CV-0689-MMA DHB, 2013 WL 2338713, at *2 (S.D. Cal.
May 28, 2013) (finding that the plaintiff has standing
to move to quash the subject subpoenas because she has
a privacy interest in her cell phone records).
“Conversely, ‘[a] party does not have standing
to quash a subpoena on the basis that the non-party
recipient of the subpoena would be subjected to an
undue burden when the non-party has failed to object.’”
Chevron Corp. v. Donziger, No. 12-MC-80237 CRB (NC),
2013 WL 4536808, at *4 (N.D. Cal. Aug. 22, 2013)
(alteration in original).
The Court finds that Defendant has standing to
assert certain arguments and not others.

Because AT&T

and T-Mobile failed to object, Defendant lacks standing
with respect to his argument that AT&T and T-Mobile
would be subject to undue burden.

Id.

However,

Circuit, other courts have applied it.”).
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Defendant has standing to challenge the subpoenas on
other grounds because he has a personal interest in
securing the privacy of his cell phone records.
B.

Modification of the Subpoenas
1.

Time Period
At the hearing, Plaintiffs argued, for the

first time, that audio recordings exist from as
recently as October 21, 2015, well beyond Defendant’s
termination date and removal from union office.

No

evidence was provided to demonstrate that Defendant
continued to make recordings after he left employment
and union office.

Based on the limited record before

the Court, and after balancing the relevance of the
discovery sought, Plaintiffs’ need, and the potential
hardship to AT&T and T-Mobile, the Court finds that
modification of the subpoenas in the manner requested
by Defendant is appropriate.

Therefore, the subpoenas

should be limited to the period January 1, 2013 to June
7, 2014.

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2.

Requested Documents
The Court additionally modifies the subpoenas

with respect to the text message request because the
Stored Communications Act prohibits AT&T and T-Mobile
from disclosing this information to Plaintiffs.
Neither party briefed this issue, but it must be
addressed.

“The Stored Communications Act (“SCA”), 18

U.S.C. §§ 2701-2712, which comprises part of the
Electronic Communications Privacy Act of 1986,
generally prohibits ‘providers of communication
services from divulging private communications to
certain entities and/or individuals.’”

Doe, 2013 WL

2338713, at *2 (quoting Quon v. Arch Wireless Operating
Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d on
other grounds by City of Ontario, Cal. v. Quon, 560
U.S. 746 (2010) (reversing on Fourth Amendment grounds
only)).

Prohibitions in the SCA turn on whether a

communications provider is classified as an “electronic
communication service” or a “remote computing
service”.

Mintz v. Mark Bartelstein & Assocs., Inc.,

885 F. Supp. 2d 987, 991 (C.D. Cal. 2012) (citing 18
9

U.S.C. § 2702(a)).

According to the Ninth Circuit,

“wireless communications providers such as AT&T are
properly classified as an ‘electronic communication
service.’”

Id. (citing Quon, 529 F.3d at 901).

As electronic communications providers, AT&T
and T-Mobile are required to comply with the SCA and
“shall not knowingly divulge to any person or entity
the contents of a communication while in electronic
storage by that service.”
(emphasis added).

18 U.S.C. § 2702(a)(1)

None of the exceptions to this

prohibition appear to apply, based on the limited
record provided in connection with this Motion.

18

U.S.C. § 2702(b).
“The SCA does not contain an exception for
civil discovery subpoenas.”

Mintz, 885 F. Supp. 2d at

991-92 (citing Crispin, 717 F. Supp. 2d at 976
(rejecting argument that the SCA permits the disclosure
of the contents of communications pursuant to a civil
discovery subpoena); Flagg v. City of Detroit, 252
F.R.D. 346, 350 (E.D. Mich. 2008) (“[A]s noted by the
courts and commentators alike, § 2702 lacks any
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language that explicitly authorizes a service provider
to divulge the contents of a communication pursuant to
a subpoena or court order.”); Viacom Int’l Inc. v.
Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008)
(holding that the SCA “contains no exception for
disclosure of such communications pursuant to civil
discovery requests”); In re Subpoena Duces Tecum to
AOL, LLC, 550 F. Supp. 2d 606, 611 (E.D. Va. 2008)
(“Applying the clear and unambiguous language of § 2702
to this case, AOL, a corporation that provides
electronic communication services to the public, may
not divulge the contents of the Rigsbys’ electronic
communications to State Farm because the statutory
language of the [SCA] does not include an exception for
the disclosure of electronic communications pursuant to
civil discovery subpoenas.”)).
As drafted - “complete call detail report and
text messaging”4 - the subject subpoenas appear to
request text message content, which cannot be

4

The subpoena issued to T-Mobile states “complete
call detail report and text message”.
11

disclosed.

At the hearing, Plaintiffs’ counsel

represented that Plaintiffs are not looking for
content, but for transmission details, including
attachments and metadata.

Arguably, this goes beyond

mere records of transmission.

In any event, the

requests for text messages in their present form are so
generalized that the scope of the requests are unclear.
If any portion of the content of the text messages is
requested, AT&T and T-Mobile are prohibited from
producing such information.5

Id. at 993 (The content of

text messages may not be disclosed unless

the

“Defendants are ‘an addressee or intended recipient of
such communication or an agent of such addressee or
intended recipient,’ 18 U.S.C. § 2702(b)(1), or unless
AT & T obtains ‘the lawful consent of the originator or
an addressee or intended recipient of such
communication.’

18 U.S.C. § 2702(b)(3)”).

5

This is not to say that Plaintiffs may not
utilize other discovery devices to obtain the
information directly from Defendant.
12

However, if Plaintiffs merely seek subscriber
information,6 they may obtain such information.

Unlike

the content of electronic communications, AT&T and TMobile “may divulge a record or other information
pertaining to a subscriber to or customer of such
service (not including the contents of
communications[)] . . . to any person other than a
governmental entity.”

18 U.S.C. § 2702(c)(6).

Because

Plaintiffs “are not a governmental entity,[] AT&T [and
T-Mobile] may disclose to them subscriber information,
other than content, consistent with the SCA.”

Mintz,

885 F. Supp. 2d at 992.
Based on the foregoing, to the extent the
content of text communications are sought, the
subpoenas are modified to exclude the requests for text
messages.

If Plaintiffs are in actuality requesting

subscriber information as to text messages, the
language in the subpoenas should be edited to more

6

Subscriber information includes, for example:
date, time, originating and receiving telephone number,
originating cell site and sector, and duration for all
calls. Mintz., 885 F. Supp. 2d at 992.
13

accurately and specifically identify the scope of the
request.
In sum, the subpoenas addressed to AT&T and TMobile are modified as follows:

1) the date range

shall be limited to “January 1, 2013 to June 7, 2014”
and 2) the text message portion should be eliminated or
amended to reflect that subscriber information, versus
content, is the information being sought.
CONCLUSION
Defendant’s Motion to Modify Subpoena, filed
October 7, 2016, is HEREBY GRANTED for the reasons set
forth above.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, February 17, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00198 ACK-KSC; HAWAII REGIONAL COUNCIL OF
CARPENTERS, ET AL. V. YOSHIMURA; ORDER GRANTING DEFENDANT LANCE
YOSHIMURA’S MOTION TO MODIFY SUBPOENA

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