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Ayers v. Lee

United States District Court, S.D. California

June 8, 2017

Kathryn Ayers, Plaintiffs,
v.
James Yiu Lee, Defendants.

          ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR AN ORDER REQUIRING FEDERAL BUREAU OF PRISON COMPLIANCE WITH SUBPOENAS [ECF NO. 162]

          HON. BERNARD G. SKOMAL UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Presently before the Court is Plaintiffs Pamela Bridgen and Hal Blatman's (“Plaintiffs”) Motion for An Order Requiring the Federal Bureau of Prisons Compliance with Subpoenas (“Motion”) (ECF No. 162), in which Plaintiffs seek to enforce a subpoena served on the Bureau of Prisons to obtain records related to former Defendant James Yiu Lee's (“Lee”) communications with Defendant Larissa Ettore (“Ettore”) while Lee was in custody at Bureau of Prison facilities. (ECF No. 162.)

         On May 25, 2017, Plaintiffs filed an Ex Parte Application to Shorten Time for Motion to Compel the United States Department of Justice, Bureau of Prisons (“Bureau of Prisons”) to Comply with Subpoenas. (ECF No. 160.) The Court granted the Ex Parte Application (see ECF No. 161) and the underlying Motion was docketed on May 26, 2017. (ECF No. 162.)

         Pursuant to the Court's Order granting the Ex Parte Application (ECF No. 161), Plaintiffs filed supplemental briefing and a revised subpoena on May 30, 2017. (ECF No. 163.) In response, on June 2, 2017 the Bureau of Prisons filed a Statement of Qualified Non-Opposition to Plaintiffs' Motion to Compel Compliance with Subpoenas, in which it maintains that while the Privacy Act, 5 U.S.C. § 552a, bars disclosure of the requested records (ECF No. 164 at 2), it will release them subject to court order pursuant to 5 U.S.C. § 552a(b)(11).

         That same day, Defendant Ettore filed an Opposition to Plaintiffs' Motion. (ECF No. 165.) This briefing was not required under the Court's Order setting forth the briefing schedule for the Motion. (See ECF No. 161.) Subsequently, Plaintiffs filed a Reply to Defendant Ettore's Opposition to Motion to Compel Compliance with Subpoenas on June 4, 2017. (ECF No. 166.)

         For the reasons set forth below, the Court hereby GRANTS IN PART Plaintiffs' Motion to Compel Compliance with Subpoenas (ECF No. 162) subject to the limitations set forth below.

         II.BACKGROUND

         This action stems from a securities fraud orchestrated by former Defendant Lee. On or about April 19, 2017 and May 5, 2017[1], Plaintiffs issued subpoenas on the Bureau of Prisons for records relating to former Defendant Lee's communications while incarcerated at two of their facilities.[2] (ECF No. 162-1 at 6-8.) Both subpoenas were served on counsel for Defendant Ettore and former Defendant Lee. (Id.; ECF No. 162-2 at 5-6, 14-15.) Neither Defendant Ettore nor former Defendant Lee filed a motion to quash either of the subpoenas. (See ECF No. 161 at 16.)

         Following service of the April 19, 2017 subpoena, the Bureau of Prisons informed Plaintiffs that the records sought fell under the protections of the federal Privacy Act, 5 U.S.C. § 552(a), and as such could not be produced absent court order. (ECF No. 162-1 at 7.) Plaintiffs were also informed they needed to submit a request pursuant to the Department of Justice's Touhy regulations, 28 C.F.R. §§ 16.21-16.26, to show the relevance of the documents sought. (Id.) Plaintiffs were required to supplement their relevancy showing three times and relied heavily on the pursuit of a “judgment enforcement against [former Defendant Lee]” to establish the relevancy of documents sought that did not involve Defendant Ettore. (Id. at 7-9.) Plaintiffs were informed their revised Touchy request was approved on May 17, 2017. (Id. at 9.) Their Ex Parte Application to Shorten Time regarding the underlying motion to compel was filed May 25, 2017. (ECF No. 160.)

         In the Court's Order granting Plaintiffs' Ex Parte Application to Shorten Time, it made clear that it “never authorized discovery related to the enforcement of the prior default judgment entered against former Defendant Lee in this action” and accordingly ordered Plaintiffs “to revise the scope of the subpoena at issue so as to limit it to information relevant to Defendant Ettore and the single cause of action pending against her.” (ECF No. 161 at 2- 3.) Plaintiffs submitted a revised subpoena that no longer referenced Federal Rule of Civil Procedure Rule 69, permitting discovery pursuant to the enforcement of a judgment, but kept the scope of the subpoena identical to the May 5, 2017 subpoena. This May 30, 2017 subpoena (“Revised Subpoena”) still encompasses all of former Defendant Lee's communications while incarcerated. (See ECF No. 163-1 at 4.)

         In its briefing to the Court, the Bureau of Prisons maintains that while the Privacy Act, 5 U.S.C. § 552a, bars disclosure of the requested records, the Court may issue an order authorizing such disclosure pursuant to 5 U.S.C. § 552a(b)(11). (ECF No. 164 at 1.) Further, it will “comply with the Court's ruling on the proper scope of the subpoena.” (Id. at 2.)

         Defendant Ettore opposes the motion to compel compliance with the Revised Subpoena filed by Plaintiffs. She maintains that the scope of the subpoena is overbroad, as it fails to protect “attorney client privileged communication.” (ECF No. 165 at 1-2.) Because counsel for Defendant Ettore also represented former Defendant Lee for a period of time, the categories of attorney client privileged communication that Defendant Ettore is concerned could be disclosed are those between (1) former Defendant Lee and Sharif | Faust lawyers; (2) Defendant Ettore and Sharif | Faust lawyers; and (3) former Defendant Lee, Defendant Ettore, and Sharif | Faust lawyers. (Id. at 4.)

         Fact discovery closes July 1, 2017 (see ECF No. 156). The Bureau of Prisons has requested five court days to produce any ...


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