United States District Court, S.D. California
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.
Barbara L. Major United States Magistrate Judge
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.
AND PROCEDURAL BACKGROUND
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.
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.
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,
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.
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.
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
(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.
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);