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George Leasure; Amy Leasure v. Willmark Communities

September 21, 2012

GEORGE LEASURE; AMY LEASURE,
PLAINTIFFS,
v.
WILLMARK COMMUNITIES, INC., A CORPORATION; ALPINE CREEKSIDE, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: David H. BARTICKUnited States Magistrate Judge

(1) RESOLVING DISCOVERY DISPUTE [ECF No. 43]; AND (2) REQUIRING COMPLIANCE WITH SUBPOENA

ORDER:

I. BACKGROUND

On August 23, 2012, Plaintiffs George Leasure and Amy Leasure filed a document entitled "Joint Motion & Meet and Confer Statement Re: Determination of Discovery Dispute and for an Order to Show Cause Re: Contempt for Failure to Comply With Subpoena Duces Tecum." (ECF No. 43.) Plaintiffs' filing concerns a dispute between Plaintiffs and non-party witness Kimball, Tirey & St. John LLP ("KTS").*fn1 Specifically, Plaintiffs served a subpoena duces tecum on KTS which sought production of KTS' billing records for unlawful detainer and collection matters on behalf of Defendants Willmark Communities, Inc. and Alpine Creekside, Inc.

On August 24, 2012, the Court issued an order requiring Defendants and KTS to file any response on or before September 6, 2012. (ECF No. 44.) Defendants filed their response on September 6, 2012. (ECF No. 45.) KTS filed a joinder to Defendants' response that same day. (ECF No. 46.)

For the reasons set forth below, the Court ORDERS non-party KTS to comply with the subpoena duces tecum, as modified below.

II. DISCOVERY DISPUTE

A. Subpoena and Objections

Plaintiffs claim to have served KTS with the subpoena on July 9, 2012. (ECF No. 43 at 1:26-27.)*fn2 The subpoena commanded the production of "billing records for unlawful detainers and collections on behalf of [Defendants] for the calendar years 2009, 2010 [and] 2011." (ECF No. 43-2 at 2.) KTS, a law firm that has provided legal services on Defendants' behalf, served an Objection to Subpoena, dated July 19, 2012, in which the following objection was made to the requested documents:

KTS objects to this request on the grounds that it is vague and ambiguous as to the term "billing records." The request is overbroad in that it seeks records for calendar years 2009, 2010 and 2011. The request additionally seeks the disclosure of irrelevant information unlikely to lead to the discovery of otherwise admissible evidence. The request also seeks the disclosure of documentation protected by the attorney-client and attorney work product privileges (USCS Fed. Rules Evid. R. 502). The request may also seek consumer information protected by Section 5 of the Federal Trade Commission Act. For the foregoing reasons, KTS will not be providing documents responsive to this request. (See e.g., ECF No. 43-3 at 2:2-8.)

Plaintiffs state that during their meet and confer process with KTS, the parties agreed to replace the term "billing records" with the term "final invoice(s) for payment(s), redacted to remove confidential attorney-client communication or protected work product." (ECF No. 43 at 2:13-15.)

B. Plaintiff's Position

In their memorandum of points and authorities in support of their position that KTS should be required to comply with the subpoena, Plaintiffs contend that the requested documents should be produced because: "(1) settled [N]inth [C]circuit law holds the subpoenaed documents are non-privileged; (2) the information sought is directly related to a contested issue; and (3) even were the objections valid, they are waived as being untimely." (ECF No. 43-1 at 2:5-7.)

First, relying on the Ninth Circuit's decision in Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 128 (9th Cir. 1992), Plaintiffs contend that although information found in attorney invoices "that reveals specific research or litigation strategy" may be protected from disclosure, "information on the identity of the client, the case name for which payment was made, the amount of the fee, and the general nature of the services performed . . . is not privileged."

Second, Plaintiffs maintain that the requested information is not only discoverable, but directly relevant to whether Defendants are "debt collectors" within the meaning of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and its California counterpart, the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788.2 et seq. Specifically, Plaintiffs contend that the requested attorney invoices are relevant to whether ...


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