United States District Court, E.D. California
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff has filed an ex parte application for an order shortening time for a hearing on his motion to quash five subpoenas issued by defendants. ECF No. 97. Good cause appearing, plaintiff's ex parte motion for an order shorting time is granted. Further, for the reasons stated below, plaintiff motion to quash is denied.
I. Procedural History
Defendants previously filed a motion for evidentiary sanctions pursuant to Federal Rule of Civil Procedure ("Rule") 37(c)(1). ECF No. 70. Defendants argued that plaintiff should be precluded from introducing evidence at trial relating to damages for lost benefits based on plaintiff's failure to timely provide defendants with a computation of damages as required by Rule 26(a). That motion was granted in part and denied in part. ECF No. 80. The court found that plaintiff had violated Rule 26(a) and (e). Specifically, plaintiff's initial disclosures did not contain a computation of damages as required by Rule 26(a)(1)(A)(iii). Although plaintiff was put on notice that his initial disclosures were deficient, plaintiff waited until after the close of discovery to provide an expert report that disclosed that plaintiff was seeking more than $675, 000 in damages. Furthermore, in calculating this figure, the expert relied on documents that were not provided to defendants notwithstanding plaintiff's obligation to make available for inspection and copying the documents used in calculating damages and Rule 26(e)'s requirement that plaintiff supplement his initial disclosures in a timely manner. Id. at 5.
The court further found that plaintiff's violation of Rule 26(a) and (e) was neither substantially justified nor harmless. Id. at 6. Although defendants gave plaintiff adequate notice that his initial disclosures were deficient, plaintiff was not diligent in providing defendants with the requested information. As a result, defendants were deprived of the opportunity to conduct discovery into plaintiff's damages. However, Ninth Circuit law requires the district court "to consider the availability of lesser sanctions" [than evidentiary or terminating sanctions] and has "reaffirm[ed] the existence of that requirement when a district court conducts the harmlessness inquiry required under Rule 37(c)(1)." R & R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012). Here, the harm was capable of mitigation though less draconian remedies. In light of the requirement noted in R & R Sails, rather than preclude plaintiff from introducing evidence regarding his damages at trial, monetary sanctions were imposed and the scheduling order was modified to permit defendants to conduct additional discovery relating to the issue of plaintiff's damages. Id. at 7-8. Defendants were given until June 30, 2014 to conduct discovery on this issue. Id. at 8. But even that less harsh remedy has met resistance.
On February 11, 2014, defendants filed a motion to compel seeking, among other things, an order compelling plaintiff to respond to interrogatories about plaintiff's retirement benefits as they relate to damages. ECF No. 83. Plaintiff took the mistaken position that such a discovery request was outside the scope of the court's January 8 order because it sought information that was created subsequent to the original August 31, 2012 discovery cutoff date. Plaintiff argued, erroneously, that because the January 8 order was intended to permit defendants to "conduct the very discovery they would have conducted had plaintiff complied with the discovery rules" (ECF No. 91 at 5 (emphasis in original)), defendants were precluded from seeking discovery of any evidence that was not available at the time of the original discovery cutoff date. Id. Although that motion was denied due to the parties' failure to adequately meet and confer as required by Local Rule 251(b), the court took the opportunity at the March 5, 2014, hearing to clarify that additional damages discovery permitted by the January 8 order is not limited discovery in the manner plaintiff suggested. Rather, the order was intended to permit defendants to "take all of the discovery that they need... [relating to plaintiff's] claim for damages and the amount of damages." ECF No. 96 at 15. A summary order issued after the hearing confirming that defendants were entitled to documents created after the original August 31, 2012 discovery cutoff. ECF No. 95 at 2 n.1.
On May 23, 2014, plaintiff filed his application for an order shortening time and the instant motion to quash. ECF No. 97.
II. The Subpoenas
Defendants' counsel, Ms. Ernce, deposed plaintiff on May 20, 2014. Declaration of Joanne DeLong ("DeLong Decl.") ¶ 3. At the deposition, plaintiff testified that he started working for a new medical professional group, Anesthesia & Analgesia Medical Group, Inc. ("AAMGI"), on April 28, 2014. Id. ¶ 4. On May 21, 2014, Ms. Ernce served a subpoena on AAMGI, requesting the production of documents relating to plaintiff's compensation and benefits by June 4, 2014. Declaration of Lynn Trinka Ernce, ECF No. 102, ("Ernce Decl.") ¶ 3; DeLong Decl. Ex. A. On May 22, 2014, plaintiff's counsel, Ms. DeLong, received a copy of the subpoena issued to AAMGI. DeLong Decl. ¶ 6.
On May 23, 2014, Ms. DeLong sent an email to Ms. Ernce explaining that she intended to move to quash the subpoena served on AAMGI because it was overbroad and defendants failed to provide proper notice as required by Rule 45(a)(4). Id. ¶ 7, Ex. B.; Ernce Decl. ¶ 4. Ms. Ernce stated that she would re-issue the subpoena to cure the notice defect, but explained that she disagreed with Ms. DeLong's position that the subpoena was overbroad. DeLong Decl. Ex B. On May 23, 2014, Ms. Ernce emailed notice to both Ms. DeLong and co-counsel that defendants were re-serving the AAMGI subpoena, which was identical to the prior subpoena except that the deadline for production was extended to June 6, 2014. Ernce Decl. ¶ 6. Ms. Ernce also notified plaintiff's counsel that she was re-serving document subpoenas that had been served on May 22, 2014 to Morpheus Anesthesia, Inc., plaintiff's former employer, Queen of the Valley Medical Center, a medical center where plaintiff presently performs services through AAMGI, Queen of the Valley Medical Center Foundation, and U.C. Davis Medical Center. Id. The email sent to counsel included a copy of the five subpoenas Ms. Ernce subsequently re-served. See Attach. to Ernce Decl. Plaintiff now moves to quash these five subpoenas. ECF No. 97.
III. Ex Parte Application for Order Shorting Time
Plaintiff requests an order shorting time for a hearing on his motion to quash defendants' subpoenas, arguing that there is insufficient time to bring a regularly-noticed motion. ECF No. 97. Local Rule 251(a) provides that all discovery motions shall be noticed for hearing on a date at least twenty-one days from the date the motion is filed. Each subpoena requires that all responsive documents be produced no later than June 6, 2014. Thus, the procedures provided by Local Rule 251 would not permit a timely resolution of the dispute. Accordingly the application to shorten time is granted.
IV. Motion to Quash
As set forth in 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 for purposes of discovery 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 ...