GORDON E. DUNFEE, et al., Plaintiffs,
TRUMAN CAPITAL ADVISORS, LP, et al., Defendants.
ORDER DENYING PLAINTIFFS' MOTION TO QUASH SUBPOENA [ECF No. 40]
DAVID H. BARTICK, Magistrate Judge.
On September 27, 2013, Plaintiffs filed a document entitled "Plaintiffs' Notice of Motions and Motions to Quash the Subpoena for the Hurwitz Deposition and to Extend the Discovery Cut Off Dates." (ECF No. 40.) On October 14, 2013, Defendants Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage (collectively "Wells Fargo") filed an opposition to Plaintiffs' motion to quash. (ECF No. 46.) That same day, Defendants Truman Capital Advisors, LP, TruCap Grantor Trust 2010-2 and Marix Servicing, LLC (collectively "Truman") filed a joinder to the opposition. (ECF No. 47.) On October 22, 2013, Plaintiffs filed a reply to the opposition and joinder. (ECF No. 48.)
Pursuant to Local Civil Rule 7.1(d)(1), the Court finds the matter suitable for determination based on the papers submitted and without oral argument. For the reasons set forth below, the Court DENIES Plaintiffs' motion to quash.
The instant dispute arose following Wells Fargo's September 6, 2013 issuance of a subpoena to Plaintiffs' tax attorney, Stuart M. Hurwitz, APC. (ECF No. 40 at 14.) The subpoena commanded Mr. Hurwitz to appear for deposition testimony on September 30, 2013, and to produce for inspection the following documents:
For Gordon and Maureen Dunfee and Gordon and Maureen L. Dunfee 2003 Trust, dated 11/05/04, all information for the years 2007, 2008, 2009, 2010 and 2011, including, but not limited to:
All federal and state income tax returns;
All documents and work papers that, in any way, were used or created in preparing the income tax returns;
All correspondence to or from Mr. and Mrs. Dunfee; [and]
All documents received from Mr. and Mrs. Dunfee that were used to prepare the income tax returns[.]
( Id. )
Plaintiff Gordon Dunfee met and conferred with Wells Fargo's counsel on September 27, 2013. Plaintiffs offered to produce redacted copies of their 2008 and 2009 tax returns, which would be certified as correct by Mr. Hurwitz, if Wells Fargo agreed to withdraw the subpoena. ( Id. at 5:9-11, 10:11-15.) Wells Fargo rejected this proposal. ( Id. at 5:11-12, 10:15.) Wells Fargo's counsel agreed to continue Mr. Hurwitz's deposition until after the Court rules on Plaintiffs' motion to quash. (ECF No. 46 at 2:13-14; ECF No. 46-1 at 4:12-13.)
Plaintiffs now seek to quash the subpoena for a number of reasons, including that the subpoena: (1) seeks disclosure of privileged information; (2) is intended "to harass, embarrass and abuse" Plaintiffs; (3) seeks information protected by the attorney-client privilege; (4) imposes an undue burden on Plaintiffs; (5) is duplicative in that it seeks copies of their 2008 and 2009 tax returns that were already provided to Wells Fargo during loan modification discussions; and (6) with respect to the 2007, 2010 and 2011 tax returns, seeks information that is not relevant to the subject matter of this litigation. (ECF No. 40 at 2:7-10, 6:1-8:12, 10:11-14.)
In the opposition, Wells Fargo contends the subpoenaed documents are relevant because, among other things: (1) Plaintiffs' tax returns provide a second source of evidence concerning the accuracy and completeness of the financial representations provided during loan modification discussions; and (2) the subpoenaed documents are relevant to Plaintiffs' credibility, especially in light of Plaintiff Gordon Dunfee's deposition testimony that his 2009 tax return contained a $250, 000 error. (ECF No. 46 at 3:21-5:25.) Wells Fargo also argues there is no federal tax return privilege and that, if any valid privilege does exist, "it can be asserted at the deposition where appropriate." ( Id. at 3:19, 6:5-6.)
In the joinder, Truman contends that "Plaintiffs have put their financial capacity at issue in this case, unclean hands is a defense and Plaintiffs have waived any issues they have in producing relevant tax returns by voluntarily producing the tax returns." (ECF No. 47 at 1:28-2:2.) Truman further contends the deposition of Mr. Hurwitz ...