United States District Court, E.D. California
BETH A. RHODES, M.D., Plaintiff,
SUTTER GOULD MEDICAL FOUNDATION, a California Corporation, and GOULD MEDICAL GROUP, INC., a California Corporation, Defendants.
MEMORANDUM AND ORDER RE: MOTION TO QUASH SUBPOENAS; MOTION FOR SANCTIONS
WILLIAM SHUBB, District Judge.
During the month immediately preceding trial, plaintiff served trial subpoenas on Sutter Health, Palo Alto Medical Foundation-Mountain View ("PAMF"), and Maiko Nakarai-Kanivas, who is counsel to defendant Sutter Gould Medical Foundation ("SGMF"). SGMF now moves to quash those subpoenas pursuant to Federal Rule of Civil Procedure 45(d).
Although the Ninth Circuit has not explicitly addressed the question of whether a party can move to quash a subpoena served upon a nonparty, the "general rule... is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought." Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., ___ F.R.D. ___, ___, Civ. No. 2:10-1207 GEB AC, 2014 WL 641139, at *5 (E.D. Cal. Feb. 18, 2014); see also Crispin v. Christian Audigier, Inc. , 717 F.Supp.2d 965, 973-74 (C.D. Cal. 2010) (citing cases); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2459 (3d ed. 2008) ("Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with respect to the documents sought.").
While SGMF objects that the subpoenas served upon Sutter Health and PAMF are untimely and unduly burdensome, it does not argue that those subpoenas would compel the disclosure of any privileged information. (See Decl. of Maiko Nakarai-Kanivas Exs. I, K (Docket No. 298-1).) Accordingly, because SGMF lacks standing to oppose the subpoenas served upon Sutter Health and PAMF, the court will deny its motion to quash as to those subpoenas.
Plaintiff has also served a trial subpoena upon Maiko Nakarai-Kanivas, who is counsel to SGMF. While "discovery from opposing litigation counsel has been recognized as permissible under limited circumstances, " the party seeking discovery from opposing counsel bears the burden "to demonstrate its propriety and need." Doubleday v. Ruh , 149 F.R.D. 601, 613 (E.D. Cal. 1993) (Hollows, M.J.); Restatement (3d) of Law Governing Lawyers § 108(4) (noting that a party may not "call opposing counsel as a witness unless there is a compelling need for the lawyer's testimony").
District courts in the Ninth Circuit frequently assess whether discovery of opposing counsel is appropriate by applying the test set forth by the Eighth Circuit in Shelton v. American Motors Corporation. 805 F.2d 1323 , 1327 (8th Cir. 1986). Under that test, discovery of opposing counsel is appropriate only when (1) "[n]o other means exist to obtain the information, " (2) "the information sought is relevant and nonprivileged, " and (3) "the information is crucial to the preparation of the case." 805 F.2d 1323 , 1327 (8th Cir. 1986); see also Doubleday , 149 F.R.D. at 613 (applying Shelton factors); Mass. Mut. Life Ins. Co. v. Cerf , 177 F.R.D. 472, 479 (N.D. Cal. 1998) (describing Shelton as the "leading case" and applying Shelton factors).
Here, plaintiff seeks testimony from Nakarai-Kanivas about her efforts to comply with a discovery order requiring Sutter Health to produce any documents from its affiliated clinics which are "the same or similar to" the surgical consult policy employed by SGMF. Given that plaintiff could have propounded an or request for admission to obtain information about her efforts to comply with the discovery order, she has not shown that "no other means exist to obtain this information." Shelton , 805 F.2d at 1327. In addition, Ms. Nakarai-Kanivas's communications with Sutter Health and SGMF relating to her efforts to obtain documents responsive to the discovery order are privileged, and are therefore an inappropriate subject for discovery. See id.; see also Fed.R.Civ.P. 45(d)(3)(iii) (requiring a court to quash a subpoena if it would require the disclosure of privileged information). Accordingly, the court will grant SGMF's motion to quash the subpoena served upon Nakarai-Kanivas.
IT IS THEREFORE ORDERED that SGMF's motion to quash be, and the same hereby is, GRANTED with respect to the subpoena served upon Maiko ...