United States District Court, N.D. California
ORDER REGARDING NON-PARTY CARRIE TOLSTEDT'S
MOTION TO QUASH OR, IN THE ALTERNATIVE, FOR PROTECTIVE ORDER;
ORDER STRIKING PLAINTIFFS' EXHIBITS RE: DKT. NO.
A. WESTMORE United States Magistrate Judge
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.)
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.
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.
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.
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.)
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.)
February 3, 2017, Ms. Tolstedt filed the motion to quash the
subpoena or, in the alternative, for protective order. (Mot.,
Dkt. No. 171.)
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
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.
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)).
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).
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)).