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Nocal, Inc. v. Sabercat Ventures

November 15, 2004


The opinion of the court was delivered by: James Larson United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER (Docket #s 52 and 42 respectively); denying without prejudice Defendants' motion for sanctions (Docket # 54) and denying with prejudice Plaintiff's motion for sanctions (Docket #49)


Before the Court is Defendants' motion to quash the subpoena that seeks to compel the testimony of Defendants' attorney, the motion for protective order and the parties' countermotions for monetary sanctions. These motions were referred by the district court (Hon. Phyllis J. Hamilton) as provided by Civil Local Rule 72 and 28 U.S.C. §636(b). This court finds the subpoena: (1) subjects the attorney-witness to harassment, (2) is unduly burdensome, and (3) seeks irrelevant and privileged information. The Court hereby quashes the subpoena and grants a protective order protecting the witness from further discovery attempts and harassment. The Court denies without prejudice Defendants' motion for monetary sanctions pending Plaintiff's further conduct. The Court denies with prejudice Plaintiff's motion for monetary sanctions.

Procedural History

Plaintiff G.C. & K.B. Investments, Inc. (GCKB) and its attorney Barry Schlom served a subpoena upon Defendant Andersen-Draper Investments (AD) and attorney Terrence Beard on September 23, 2004. The subpoena seeks to compel Beard to appear at a deposition and to produce documents on November 16, 2004.

On October 14, 2004 Schlom served another subpoena upon Beard which resulted in another round of meet and confer letters between Beard, Beard's attorney Goebel, and Schlom. The meet and confer letters complied with Local Rule 37-1(a) were filed by Goebel in connection with the motion to quash. On November 4, 2004 the Court granted an order shortening the time for briefing and hearing.

Factual Background

Beard represented the franchisees of SpeeDee Oil Change & Tune Up System (SpeeDee) in various litigation matters for over a decade. The original lawsuit ignited a flurry of related lawsuits in both federal and state courts. Schlom has represented SpeeDee in various litigation matters involving Beard's clients since 1994. In June 1995, Beard drafted a Business Management Agreement (BMA) between Jon Andersen of AD, and Daniel Wittern of Sabercat Ventures, Inc. (Sabercat). The BMA provided that Beard represented neither of the parties involved with the agreement. In July 2003 Andersen's SpeeDee Local Franchise Agreement (LFA) was assigned to Sabercat. Since 1995, Sabercat has been sold twice and is now owned by Scott Scarlett.

In the amended complaint filed in November 2003, Scarlett made no allegations in reference to Beard's role with the BMA. At this point, Schlom began discovery and served Beard with the first of the subpoenas seeking to compel Beard's testimony at deposition, as well as propounding document requests. Schlom contends that no one is better able to testify to the parties' intent in the BMA than Beard, its drafter. He does not contend that the parties are unavailable to testify to their own intent.

Brief History of the Attorneys' Relationship

Beard argues that growing antipathy in his personal relationship with Schlom motivated Schlom to serve the subpoenas with the purpose of harassment. Beard and Schlom have had many interactions since 1994. In January 2003, GCKB filed an injunction in federal court seeking to prevent Beard from representing any SpeeDee franchises in the future. Subsequently, Schlom filed a complaint against Beard with the State Bar of California. The federal action was dismissed pursuant to a SLAPP motion, and Plaintiff was ordered to pay attorney's fees. After Beard responded to the State Bar complaints, the State Bar took no further action.

Legal Analysis

The main issues in this case are: 1) whether Defendant's attorney-witness is presumptively entitled to an order to quash a subpoena that seeks to compel his testimony; 2) whether Plaintiff's subpoena that requires the disclosure of privileged or otherwise protected information, where no waiver or exception applies, can be quashed; 3) whether Plaintiff's subpoena aims to harass and subject the witness to undue burden by seeking documents that are overbroad, irrelevant, privileged, and requiring excessive expense of both money and time; 4) whether Defendant's attorney-witness is entitled to a protective order; 5) whether Defendant is ...

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