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Entrepreneur Media, Inc v. Scott Smith Dba Entrepreneurpr

September 12, 2011

ENTREPRENEUR MEDIA, INC., PLAINTIFF,
v.
SCOTT SMITH DBA ENTREPRENEURPR, DEFENDANT.



ORDER

This miscellaneous action, in which defendant is pro se, was referred to the undersigned under Eastern District of California Local Rule 302(a). Presently pending for decision by the undersigned is defendant's motion to quash a subpoena that plaintiff issued to Bank of America, and a related request for sanctions. Dckt. No. 65. Plaintiff opposes the motion and also seeks non-monetary sanctions. Dckt. No. 74.

BACKGROUND

In July 2003, judgment creditor and plaintiff herein Entrepreneur Media, Inc. ("EMI") obtained a judgment in the Central District of California for trademark infringement plus a substantial award of attorneys' fees against judgment debtor and defendant herein Scott Smith ("Smith"). In May 2010, EMI registered the judgment in this district because Smith resides here.

On January 14, 2011, EMI filed a motion to appoint a receiver to sell certain domain names owned and/or controlled by Smith. Dckt. No. 24. Additionally, on February 11, Smith filed a motion to quash a third party subpoena that was issued to Chase Bank, along with a motion for a protective order and a motion for sanctions, arguing that the subpoena sought information related to a credit card account maintained by Smith's girlfriend, Karen Mix. Dckt. No. 29. Mix also joined in the motion to quash, motion for a protective order, and motion for sanctions. Dckt. No. 37. All three of the motions were set to be heard on May 4, 2011.

Then, on April 28, 2011, Smith filed an ex parte application for an order shortening time to hear a motion to stay these judgment enforcement proceedings pending appeal and for a temporary restraining order, in light of a currently pending Ninth Circuit case in which the Circuit is considering whether the judgment EMI seeks to enforce herein should have been discharged in Smith's bankruptcy proceedings.*fn1 Dckt. Nos. 52, 53. On April 29, the undersigned issued an order granting the application for an order shortening time, setting a briefing schedule, and setting the motion to stay and motion for a temporary restraining order for hearing on May 4, along with the other various matters.

At the May 4, 2011 hearing, the court indicated that it intended to (1) deny EMI's motion to appoint a receiver without prejudice (since the court opined that EMI should at least proceed with the judgment debtor exam before seeking to sell Smith's domain names); (2) deny Smith's motion for a stay pending appeal (since a stay of the entire case was not warranted); and (3) continue the hearing on Smith and Mix's motions to quash, for a protective order, and for sanctions to June 22, 2011 so that those motions could be heard after the judgment debtor examination of Smith, which was at that time scheduled to occur on May 18. The court was concerned about the intrusiveness of the subpoena with regard to Mix's bank account, especially since EMI had not yet conducted a judgment debtor exam of Smith. Dckt. Nos. 59, 64. However, after the hearing on May 4, Smith filed a motion for a 60 day extension of the May 18 judgment debtor examination and his deadline for responding to a subpoena for documents issued by EMI. Dckt. No. 60. Smith argued that he needed additional time because the document requests were burdensome and had the potential to yield volumes of documents dating as far back as seven years, and because Smith wanted to try to find counsel to assist him in responding to the subpoena. Id.

In light of Smith's representations, on May 5, 2011, the court issued an order (1) granting Smith's request for an extension; (2) denying EMI's motion to appoint a receiver without prejudice; (3) denying Smith's motion for a stay pending appeal and/or for a temporary restraining order; (4) continuing the May 18 judgment debtor examination to July 20, 2011 and providing Smith an additional 60 days to respond to the subpoena for documents; (5) continuing the hearing on Smith and Mix's motions to quash the subpoena, for a protective order, and for sanctions to August 24, 2011; (6) giving EMI until August 10 to file a 15 page brief indicating whether the subpoena to Chase will be withdrawn as moot, and if not, indicating why the motions to quash the subpoena should not be granted; and (7) giving Smith and/or Mix until August 17 to file a fifteen page response to EMI's brief. Dckt. No. 61.

On July 5, 2011, Smith filed the present motion to quash a subpoena that EMI issued to Bank of America and the related motion for sanctions. Dckt. No. 65. Then, on July 13, Smith filed an ex parte application for an order shortening time to hear a second motion to extend Smith's time to respond to EMI's subpoena and to appear for the July 20 judgment debtor examination. Dckt. No. 67. Smith argued that good cause supported the application to shorten time because allowing the examination to occur on July 20 would cause Smith "substantial and irreparable harm, and waste judicial resources due to several factors outside of [Smith's] control." Smith made numerous arguments for why an additional 90 days should be provided.

On July 19, 2011, the court granted Smith's request for an extension; continued the July 20 judgment debtor examination to October 19, 2011; granted Smith an additional 90 days to respond to the subpoena for documents; continued Smith and third party Karen Mix's motions to quash the subpoena, for a protective order, and for sanctions to November 16, 2011; set new deadlines for the parties' briefs related to those motions; and continued the hearing on the present motion to quash and motion for sanctions to August 31, 2011. Dckt. No. 72.

MOTION TO QUASH/ MOTION FOR PROTECTIVE ORDER

Smith moves to quash a subpoena that EMI issued to Bank of America seeking documents relating to Smith, including documents relating to a bank account Smith holds with Bank of America. Dckt. No. 65; see also Dckt. No. 65-2. Smith contends that (1) the subpoena violates the court's ruling at the May 4, 2011 hearing that EMI may not issue any third-party subpoenas until after Smith's judgment debtor examination, and (2) the subpoena seeks information that is duplicative of the information EMI has requested from Smith in anticipation of the judgment debtor examination. Id. EMI opposes the motion. Dckt. No. 74.

In proceedings in aid of a judgment or execution, a judgment creditor may obtain discovery from any judgment debtor in accordance with state law unless federal law provides otherwise. Fed. R. Civ. P. 69(b). The judgment creditor "may obtain discovery from any person, including the judgment debtor, in the manner provided by these rules or in the manner provided by the practice of the state in which the district court is held." Fed. R. Civ. P. 69(a). Accordingly, judgment creditors may issue subpoenas for records from non-parties. See Cal. Civ. Proc. Code §§ 1985, et seq.; Fed. R. Civ. P. 26, 45.

As set forth in Federal Rule of Civil Procedure ("Rule") 26(b)(1), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Relevancy at this stage of an action has been construed broadly to "encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

However, Rule 45(c)(3)(A) provides that "[o]n timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a [non-party] to travel more than 100 miles . . . ; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Further, Rule 45(c)(3)(B) provides that "[t]o protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; ...


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