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Carroll v. Wells Fargo & Co.

United States District Court, N.D. California

April 10, 2017

KELLY CARROLL, ET AL., Plaintiffs,
WELLS FARGO & COMPANY, et al., Defendants.


          KANDIS A. WESTMORE United States Magistrate Judge

         On February 3, 2017, Non-party Carrie Tolstedt filed a motion to quash the subpoena or, in the alternative, for protective order. (Mot., Dkt. No. 171.)

         On March 16, 2017, the Court held a hearing, and, after careful consideration of the parties' arguments, and moving papers, and for the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the motion to quash and GRANTS the request for a protective order.

         I. BACKGROUND

         Plaintiff Kelly Carroll alleges that she worked as a Service Manager 1 in Wells Fargo Bank, N.A.'s Santa Monica, California branch from approximately January 2011 to October 1, 2011. Thereafter, she held two exempt positions until the end of her employment in or around November 2012. On April 7, 2015, Plaintiff Kelly Carroll filed this putative class action in state court alleging various violations of California wage and hour law. Thereafter, the case was removed to federal court, and was later consolidated with the Layog case, 16-cv-02011-EMC. (See Dkt No. 128.) Plaintiffs bring this action on behalf of all Wells Fargo non-exempt employees in California from April 7, 2011 to present. The class has not been certified, and the parties continue to be engaged in pre-certification discovery.

         Non-Party Carrie Tolstedt was previously in charge of Defendant Wells Fargo's retail banking since June 2007, and had previously served as Wells Fargo's Regional President for Central California. Plaintiffs contend that Ms. Tolstedt oversaw Wells Fargo's credit card and retail banking operations during the years in which banking center employees opened millions of sham accounts using existing customers' information. Plaintiffs argue that these sales goals defined the retail bank's culture and led many Wells Fargo bank employees to work off-the-clock and engage in unlawful practices. These employees worked in Ms. Tolstedt's community banking division. As a result, Plaintiffs believe that Ms. Tolstedt may have first-hand knowledge of relevant facts pertaining to the coercion of employees to work off-the-clock.

         On December 9, 2016, the undersigned determined that Ms. Tolstedt's deposition pertaining to her “unique, first-hand knowledge of the corporate culture [at Wells Fargo] that allegedly led to off-the-clock work” could go forward. (Dkt. No. 148 at 4.)

         On January 20, 2017, Plaintiffs emailed the subpoena for testimony and a subpoena duces tecum to Ms. Tolstedt's attorney. (Decl. of Enu Mainigi, “Mainigi Decl., ” Dkt. No. 171-1 ¶ 6.)

         On February 3, 2017, Ms. Tolstedt filed the motion to quash the subpoena or, in the alternative, for protective order. (Mot., Dkt. No. 171.)

         On February 9, 2017, Plaintiffs filed a motion to overrule objections of non-party Carrie Tolstedt and enforce Plaintiffs' subpoena duces tecum. (Dkt. No. 181.) On February 14, 2017, the court issued an order terminating the motion on the grounds that it was procedurally improper, and reiterated its inclination to prohibit discovery pertaining to “[t]he unauthorized opening of accounts, the decision to eliminate sales goals or quotas, and the culpability of senior level executives. . . .” (Dkt. No. 185 at 2, quoting 2/9/17 Order, Dkt. No. 183 at 2.) Thereafter, Plaintiffs withdrew the subpoena duces tecum in its entirety.

         On February 17, 2017, Plaintiffs filed an opposition to the motion to quash. (Pls.' Opp'n, Dkt. No. 187.) On February 24, 2017, Ms. Tolsted filed a reply. (Reply, Dkt. No. 189.)


         Federal Rule of Civil Procedure 45 governs discovery of non-parties by subpoena. Rule 45 provides, among other things, that a party may command a non-party to testify at a deposition. Fed.R.Civ.P. 45(a)(1)(A)(iii). The scope of discovery through a Rule 45 subpoena is the same as the scope of discovery permitted under Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., 2016 WL 3162218, at *2 (N.D. Cal. June 7, 2016) (citing Fed.R.Civ.P. 45 Advisory Comm.'s Note (1970); Fed.R.Civ.P. 34(a)).

         Under Rule 26, in a civil action, a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). Additionally, the court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C). Rule 45 also specifically provides that “the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A).

         “The Ninth Circuit has long held that nonparties subject to discovery requests deserve extra protection from the courts.” Lemberg Law LLC v. Hussin, 2016 WL 3231300, at *5 (N.D. Cal. June 13, 2016) (quotation omitted); see United States v. C.B.S., Inc., 666 F.2d 364, 371-72 (9th Cir. 1982) (“Nonparty witnesses are powerless to control the scope of litigation and discovery, and should not be forced to subsidize an unreasonable share of the costs of a litigation to which they are not a party”). Courts in this district have consequently held that “[o]n a motion to quash a subpoena, the moving party has the burden of persuasion under Rule 45(c)(3), but the party issuing the subpoena must demonstrate that the discovery sought is relevant.” Chevron Corp. v. Donziger, 2013 WL 4536808, at *4 (N.D. Cal. Aug. 22, 2013) (citation omitted); see also Optimize Tech. Solutions, LLC v. Staples, Inc., 2014 WL 1477651, at *2 (N.D. Cal. Apr. 14, 2014) (“The party issuing the subpoena must demonstrate that the information sought is relevant and material to the allegations and claims at issue in the proceedings.” (quotation omitted)).

         III. ...

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