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Alexis v. Rogers

United States District Court, S.D. California

March 20, 2017

LAURA ALEXIS, Plaintiff,
v.
JAMES B. ROGERS, et al., Defendants.

          ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL PABLO IVAN FABIAN'S AND HULLINGER FIRM, PC'S COMPLIANCE WITH DEFENDANTS' SUBPOENA DUCES TECUM AND (2) DENYING DEFENDANTS' MOTION FOR SANCTIONS IN THE AMOUNT OF $3, 654.50 [ECF NO. 88]

          Hon. Barbara L. Major United States Magistrate Judge

         Currently before the Court is Defendants' February 8, 2017 “Motion to Compel Pablo Ivan Fabian's and the Hullinger Firm, PC's Compliance with Defendants' Subpoena Duces Tecum, and for Sanctions in the Amount of $3, 654.50” [ECF No. 88-1 (“Mot.”)] and Pablo Fabian's February 22, 2017 opposition to the motion [ECF No. 91 (“Oppo.”)]. Plaintiff did not file an opposition or response to Defendants' motion. See Docket. Having considered the briefing and having reviewed all of the supporting exhibits, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Compel Pablo Ivan Fabian's and the Hullinger Firm, PC's Compliance with Defendants' subpoena Duces Tecum, and DENIES Defendants' Motion for Sanctions in the Amount of $3, 654.50.

         FACTUAL AND PROCEDURAL BACKGROUND

         On March 27, 2015, Plaintiff filed a complaint alleging, inter alia, intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination. ECF No. 1 at 30-32, 34-35. Plaintiff alleges that she worked for Defendants from approximately January 2012 until she was unlawfully terminated in August 2013. Id. at 6-7, 15. Plaintiff claims that Defendant Rogers made “improper, explicit, and unwanted sexual advances for over the course of over a year, ” and that she was fired when she refused the advances. Id. at 2, 11-15. Plaintiff further alleges that after Defendants learned that she intended to file a sexual harassment suit against Mr. Rogers, they filed a retaliatory complaint against her in the Cook Islands on January 14, 2015, alleging extortion and seeking $650, 000 in damages. Id. at 16-17. Plaintiff also contends that on February 8, 2015, she was physically injured in connection with the service of process of the Cook Islands complaint when Terri Safino “at the direction or request of the process server hired by Defendants, ” tried to physically drag Plaintiff from her house to the process server. Id. at 18. Safino was arrested, Plaintiff was taken by ambulance to the Emergency Room, and Plaintiff was treated for a concussion, corneal abrasion, and an injured foot. Id.

         At the end of December 2015, Plaintiff was involved in a car accident and retained Pablo Fabian and his firm, Hullinger & Fabian, APC (“the Hullinger firm”), to represent her in connection with the car accident. ECF No. 91-1, Declaration of Pablo I. Fabian (“Fabian Decl.”). During the course of representation, Plaintiff sought Mr. Fabian's assistance with the February 8, 2015 Terri Safino “domestic violence matter, ” but did not retain Mr. Fabian to handle the matter. See Id. at 2. In April 2016, Mr. Fabian was offered a position in the legal department at National University and withdrew from representing Plaintiff. Id.

         On November 1, 2016, Defendants deposed Plaintiff. ECF No. 88-2, Declaration of Olaf J. Muller (“Muller Decl.”) at 2; id., Exh. 1. On December 12, 2016, Defendants issued Subpoenas Duces Tecum to Mr. Fabian and the Hullinger firm seeking the attorney case file relating to Mr. Fabian's representation of Plaintiff. Muller Decl. at 3; id., Exh. 2; Fabian Decl. at 2. On December 21, 2016, Plaintiff's attorney in this case, Ms. Eck, [1] objected to the subpoenas claiming that they were overbroad, sought irrelevant information protected by the attorney-client privilege, and invaded Plaintiff's and third parties' privacy rights. Muller Decl., Exh. 2 at 7. The objection also stated that Plaintiff would seek an order from the Court quashing the subpoenas. Id. at 7-8. On December 27, 2016, Mr. Fabian, Mr. Hullinger, and the Hullinger firm objected to the subpoenas on the ground of the attorney-client privilege. See Fabian Decl. at 2-3; Muller Decl., Exh. 3.

         At the end of December 2016, Mr. Fabian informed Plaintiff that her files were requested by the subpoenas at issue, Plaintiff did not initially respond, but on December 30, 2016, Plaintiff told Mr. Fabian that “it was fine.” Fabian Decl. at 3. On January 2, 2017, Mr. Fabian advised Defendants that Plaintiff consented to the production of the documents sought in the subpoenas. See Fabian Decl. at 3; Muller Decl. at 4; id., Exh. 4 at 35. Plaintiff did not sign the informed consent letter sent to her by Mr. Fabian at the end of December 2016, and, again, on January 3, 2017, and on some unspecified date in January 2017, Plaintiff advised Mr. Fabian that she would not sign an informed consent letter and “would not be giving [Mr. Fabian] authority to release the files.” Fabian Decl. at 3. On January 26, 2017, Mr. Fabian and the Hullinger firm advised Defendants that they would not produce the documents requested in the subpoenas. Muller Decl. at 4.

         LEGAL STANDARD

         Federal Rule of Civil procedure 45(d)(2)(B) provides the following:

A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises-or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

Id.

         “Issues concerning application of the attorney-client privilege in the adjudication of federal law are governed by federal common law.” Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992) (citing United States v. Zolin, 491 U.S. 554, 562 (1989); Unit ...


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