United States District Court, N.D. California
ORDER ON DISCOVERY DISPUTE RE PLAINTIFF'S
SUBPOENA TO CALIFORNIA BUREAU OF REAL ESTATE RE: DKT. NOS.
VAN KEULEN, United States Magistrate Judge
the Court are the parties' separate statements concerning
a dispute over Plaintiff's subpoena to the California
Bureau of Real Estate (“BRE”). ECF 78, 79. After
considering the parties' statements, relevant legal
authority, and good cause appearing, the Court GRANTS
Defendant's request for a protective order.
Defendant's request for sanctions is DENIED without
discovery cutoff for fact discovery in this case was March 6,
2017. ECF 56. The Court extended the discovery cutoff for the
limited purposes of permitting Plaintiff to take the Rule
30(b)(6) deposition of Defendant on March 9, 2017 (ECF 60)
and to take the depositions of third parties Sarah Huang and
Yung-Ming Chou within thirty days of April 4, 2017 (ECF 76).
April 6, 2017, Plaintiff issued a subpoena to the BRE,
requesting that on April 10, 2017, BRE produce historical
broker information concerning Defendant and certain
individuals and entities that Plaintiff claims are associated
with Defendant. ECF 79-3.
April 7, 2017, Defendant filed a separate statement
requesting a protective order forbidding the discovery
attempted under the subpoena issued to BRE. ECF 78 at 4.
Defendant also requests an award of expenses, including
attorneys' fees, in connection with this discovery
dispute. Id. Plaintiff filed a separate statement on
these issues on April 7, 2017. ECF 79.
party or any person from whom discovery is sought may move
for a protective order” forbidding or limiting
discovery. Fed.R.Civ.P. 26(c)(1). Here, Defendant seeks a
protective order forbidding the discovery sought by
Plaintiff's subpoena to BRE on the grounds that the
subpoena was issued after the discovery cutoff.
courts hold that subpoenas issued under Rule 45 constitute
pretrial discovery that must be served within the specified
discovery period. Medimmune, LLC v. PDL Biopharma,
Inc., No. C08-05590 JF (HRL), 2010 U.S. Dist. LEXIS
39410, at *5 (N.D. Cal. April 1, 2010) (collecting cases);
see also Icon-IP Pty Ltd. v. Specialized Bicycle Comp.,
Inc., No. 12-cv-03844-JST (MEJ), 2015 U.S. Dist. LEXIS
7436, at *6. Because Plaintiff's subpoena to BRE was
served on April 6, 2017, a month after the discovery cutoff,
it is untimely.
various reasons Plaintiff offers for the timing of the
subpoena do not excuse the untimeliness of its subpoena to
BRE. First, Plaintiff argues that it needs the requested
records from BRE as a result of Defendant's
“failure to produce any documents relating to Ms. Huang
and Mr. Estoesta's agency relationship with BayOne
REIC” and Defendant's corporate designee's
“failure to testify as to whether or not Ms. Huang and
Mr. Estoesta were licensed brokers of BayOne REIC under Ms.
Guo's license.” ECF 79 at 4. If Plaintiff believed
that Defendant had failed to properly respond to discovery
requests or comply with its obligation to produce a Rule
30(b)(6) witness, Plaintiff could have brought a motion to
compel within the time limit set forth within the local
rules, but it did not do so. Alternatively, or in addition,
Plaintiff could have asked the district court to reopen the
discovery to permit it to subpoena the information from BRE.
Indeed, on March 30, 2017, Plaintiff filed a motion for
permission to take two third-party depositions after the
discovery cutoff (ECF 75), which was subsequently granted
(ECF 79), but Plaintiff did not include in that motion a
request to subpoena information from BRE after the discovery
also argues that information from BRE is relevant to
Defendant's pending motion for summary judgment. If
Plaintiff needs additional discovery in order to oppose the
summary judgment motion, the appropriate procedure is to make
the necessary showing to the district court under Rule 56(d).
addition, Plaintiff repeatedly emphasizes that the documents
it seeks from BRE are public records and that it served a
subpoena only because the BRE requested that it do so in
connection with Plaintiff's public records request. ECF
79 at 2-3. Plaintiff was evidently aware that the BRE had
relevant information at least as of the time it was preparing
to take the deposition of Defendant's corporate designee
because Plaintiff apparently used a BRE printout from October
2006 during that deposition. See Id. at 2. Although
Plaintiff does not identify the date of its public records
request, it appears that the request was made sometime after
the Rule 30(b)(6) deposition of Defendant, and therefore
after the close of discovery. Plaintiff offers no explanation
for why it did not seek information from BRE earlier in the
Plaintiff argues that Defendant would not be prejudiced by
production of “public records that were previously
available on the [BRE's] website and that do nothing more
than reflect the licensed agents of BayOne REIC at the time
of the origination of the subject loans.” Id.
at 4. This argument ignores the prejudice to Defendant that
would result from Plaintiff's disregard of the discovery
cutoff in this case. See generally Muench Photography,
Inc. v. Pearson Education, Inc., No. 12-cv-01927- WHO,
2013 U.S. Dist. LEXIS 124064, at *2-3 (N.D. Cal. Aug. 29,
2013) (“If a party could evade discovery deadlines to
continue to conduct third-party discovery until the time of
trial, the universe of documents relevant to the case would
never be settled prior to trial. This would defeat the
purpose of the case management procedures detailed in the
Federal Rules, increase the cost of litigation, impede
settlement prospects, make trial preparation unwieldy, and
wreak havoc on trial schedules.”); Medimmune,
2010 U.S. Dist. LEXIS 39410, at *8 (noting “palpable
prejudice” to defendant where plaintiff served a
subpoena after discovery cutoff).
in light of the discovery cutoff in the existing scheduling
order in this case, Defendant's ...