United States District Court, N.D. California
ORDER DENYING EX PARTE APPLICATION, RE: DKT. NO.
MARIA-ELENA JAMES, United States Magistrate Judge
Development Canada filed suit against E.S.E. Electronics,
Inc. and David Kazemi (“Defendants”) in the
Central District of California (the “Underlying
Litigation”), Case No. 16-2967-BRO-RA (C.D. Cal.).
Defendants subpoenaed third party Wintec Industries, Inc.
(“Wintec”) to produce records. See
Drooyan Decl. ¶ 4 & Compl., Ex. 2 (records
subpoena), Dkt. No. 1. Wintec objected to the subpoena on a
number of grounds, but agreed to produce responsive materials
to the extent it existed. Drooyan Decl. ¶ 5 & Ex. 4
(Wintec objections). Defendants took issue with Wintec's
production, and Wintec's counsel's refusal to
authenticate the production. Drooyan Decl. ¶ 7-9.
informed counsel for Wintec they intended to depose Wintec
employee Ray Huang. Drooyan Decl. ¶ 10. On November 4,
2016, Plaintiff subpoenaed Wintec to testify at
deposition on December 7, 2016. Id. ¶ 11 &
Ex. 6 (Pl.'s Dep. Subp.). Upon learning that Huang would
be appearing in response to Plaintiff's subpoena,
Defendants indicated they did not believe a separate subpoena
was needed: “I don't see any need to issue a
subpoena for [Huang's] deposition, as I will be appearing
at Wintec's deposition and can address my questions to
[Huang]. If not, I will issue a subpoena for Ray Huang's
deposition for December 7, 2016, at a time convenient for
[Huang].” Id. ¶ 12. On December 5, 2017,
Plaintiff informed Defendants that Huang's deposition had
been rescheduled to December 14, 2016. Id. ¶
13. Defendants asked Wintec to confirm that the deposition
had been continued to December 14, 2016, and Wintec responded
that it had not “confirm[ed] the exact time of
day” and suggested Defendants use written
interrogatories rather than a deposition. Id. ¶
14 & Ex. 12. Unsatisfied, on December 6, 2016, Defendants
served deposition subpoenas commanding Wintec and Huang to
appear for depositions on December 14, 2017. Id.
¶ 15 & Exs. 8-10. The subpoenas commanded testimony from
these witnesses. Id. Although the
“production” box was not checked on the face of
either document, and no description of documents to be
produced was provided, “[s]ee Exhibit 1” was
written above the address of the deposition. See id.
“Exhibit 1” appears to be the list of documents
Plaintiff had commanded Wintec to produce. The depositions
were noticed to take place at Wintec itself; there is no
indication Defendants obtained permission from Wintec to
conduct depositions at its offices. Id.
December 9, 2016, Wintec objected to the subpoenas.
Id. ¶ 16. Counsel for Defendants accused Wintec
of “corroborat[ing] with [Plaintiff] to prevent
[Defendants] from taking Ray Huang and Wintec's
depositions.” Id. On December 13, 2016, Wintec
reiterated that it “will not be available for
deposition tomorrow” and also informed Defendants that
“you will not be allowed in the building.”
Id. Ex. 14. Defendants nevertheless traveled to
filed a “Miscellaneous Complaint re: Application for
Order to Show Cause re Contempt for Failure to Appear at
Deposition and to Produce Documents Pursuant to Civil
Subpoenas.” Dkt. No. 1. They also filed an ex parte
application for order to show cause re contempt for failure
to appear at depositions and to produce documents.
Id. In their ex parte application, they seek an
order requiring (1) counsel for Wintec, Melissa Frank, to
appear and show cause why she should not be held in contempt
for failing to comply with the document subpoena; (2) Ray
Huang appear and show cause why he should not be held in
contempt for failing to comply with the deposition subpoena;
and (3) Wintec appear and show cause why it should not be
held in contempt for failing to comply with the deposition
is no indication Defendants served Wintec, Huang, or Frank
with the miscellaneous complaint, although counsel for
Plaintiff appeared on the docket in this action.
Frank is a non-party; she is general counsel to Wintec, also
a non-party to the Underlying Action. There is no indication
that Defendants served a subpoena requiring Ms. Frank herself
to appear at deposition or produce records in connection with
the December 14, 2016 Wintec deposition. It is entirely
unclear what legal basis Defendants have for suggesting that
Ms. Frank should be ordered to appear before this Court to
show cause why she should not be held in contempt. On the
facts alleged in the Complaint, there appears to be no basis
upon which this Court could exercise jurisdiction over Ms.
Frank. Defendants' Motion as to Ms. Frank is DENIED.
Wintec and Ray Huang
Huang is a non-party to the Underlying Action; he was not
subpoenaed by Plaintiff to testify, but rather it appears
that he was designated by Wintec as the corporate
representative who would testify in response to
Plaintiff's subpoena to Wintec. See Dooryan
Decl. Ex. 6. Wintec is a non-party that already produced
responsive documents to Defendants. Wintec had been
subpoenaed by Plaintiff to testify on December 6, 2014, a
deposition Plaintiff continued until December 14th and then
apparently decided to abandon altogether. Defendants served a
deposition subpoena on Wintec on December 6, 2016. Defendants
subpoenaed both witnesses to appear in eight days, on
December 14th. Id., Ex. 10. There is no evidence
before the Court that the non-parties agreed to appear on
that date, or that Wintec agreed to allow Defendants to use
its facilities to conduct the depositions. On the contrary,
Wintec objected to the subpoenas on December 9th and
reiterated on December 13th the depositions would not go
forward the following day.
Records Subpoena to Wintec
extent “Exhibit 1” is sufficient to impose upon
Wintec an obligation to produce documents, it appears Wintec
timely objected to the records subpoena. See Drooyan
Decl. ¶ 16. The burden at this point was on Defendants
to move to compel Wintec's compliance, with
notice to Wintec. See Rule 45(d)(2)(B).
Defendants did not move to compel Wintec's compliance;
the Court denies their ex parte application for an order to
show cause for the failure to produce documents. Moreover,
“[o]n a motion to compel compliance with a Rule 45
subpoena, the Local Rules in this District require a party to
‘detail the basis for the party's contention that
it is entitled to the requested discovery and show how the
proportionality and other requirements of Fed.R.Civ.P.
26(b)(2) are satisfied.” Fujikura Ltd. v. Finisar
Corp., 2015 WL 5782351, at *3 (N.D. Cal. Oct. 5, 2015)