United States District Court, E.D. California
ORDER ON MOTION TO QUASH
(ECF Nos. 167, 169, 172, 175)
STANLEY A. BOONE, Magistrate Judge.
RELEVANT PROCEDURAL BACKGROUND
A jury trial in this action began on November 19, 2013. (ECF No. 103.) On November 27, 2013, the jury returned a verdict finding that Defendant Schmitz had used excessive force in violation of the Eighth Amendment and awarded compensatory damages of $500, 000.00 and no punitive damages. (ECF Nos. 114, 115.) The trial court also ordered that Plaintiff's arrest record be expunged. (ECF No. 110.)
On February 18, 2014, United States District Judge O'Neill issued an ordering granting in part Plaintiff's motion for attorney's fees and costs in the amount of $201, 871.36. (ECF No. 163.) On February 21, 2014, Plaintiff served a subpoena duces tecum on defense counsel seeking the summary billing record showing the cumulative hours billed in this action from inception to the present. (ECF No. 169 at 2.) On February 24, 2014, Plaintiff filed a motion for reconsideration of the fee award. (ECF No. 166.) On February 27, 2014, Plaintiff confirmed that he is asking for the "bottom line" and would accept a declaration indicating the total hours expended by defense counsel. (ECF No. 169 at 9-10.) On March 3, 2014, Defendant filed a motion to quash a subpoena to produce billing records in this action. (ECF No. 167.) On March 6, 2014, Plaintiff filed an opposition to the motion to quash. (ECF No. 172.) Plaintiff had requested the motion be heard on shortened time, and during a telephonic conference, the parties agreed for the motion to be heard on March 20, 2014. (ECF No. 173.) On March 17, 2014, Defendant filed a reply. (ECF No. 175.)
A hearing on Defendant's motion to quash was held on March 20, 2014. Counsel Ryan Marshall appeared for Defendant and counsel Kevin Little appeared telephonically for Plaintiff. Having considered the moving, opposition, and reply papers, as well as the Court's file, and the arguments at the hearing the Court issues the following order.
Pursuant to Rule 45 of the Federal Rules of Civil Procedure, the court must quash or modify a subpoena that "fails to allow a reasonable time to comply;" "requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A). The party issuing and serving the "subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena." Fed.R.Civ.P. 45(d)(1).
While irrelevance is not within the list of reasons enumerated to quash a subpoena, it is well settled that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b) and 34. Goodyear Tire & Rubber Co. v. Kirk's Tire & Auto Service Center , 211 F.R.D. 648, 662 (D. Kan. 2003) (quoting Advisory Committee Note to the 1970 Amendment of Rule 45(d)(1) that the amendments "make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules.").
Therefore, the court looks to relevancy under Rule 26(b) to determine if the information requested in the subpoena duces tecum is discoverable. Rule 26(b) of the Federal Rules of Civil Procedure provides that the court may order discovery of any matter relevant to the subject matter of the litigation. Evidence is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). "Rule 26(b) is liberally interpreted to permit wide-ranging discovery of information." Moon v. SCP Pool Corp. , 232 F.R.D. 633, 636 (C.D. Cal. 2005).
In this action, Plaintiff has issued a subpoena requesting from defense counsel the total number of hours which were expended in this action. Defendant moves to quash the subpoena on the ground that the information sought is "irrelevant" to Plaintiff's motion for attorney fees. Plaintiff ...