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Export Development Canada v. E.S.E. Electronics, Inc.

United States District Court, N.D. California

June 9, 2017

E.S.E. ELECTRONICS, INC., et al., Defendants.


          MARIA-ELENA JAMES, United States Magistrate Judge


         Export 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.

         Defendants 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.[1] 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.

         On December 9, 2016, Wintec objected to the subpoenas. Id. ¶ 16.[2] 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 Wintec.

         Defendants 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 subpoena. Id.

         There is no indication Defendants served Wintec, Huang, or Frank with the miscellaneous complaint, although counsel for Plaintiff appeared on the docket in this action.


         A. Melissa Frank

         Ms. 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.

         B. Wintec and Ray Huang

         Mr. 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.

         1. Records Subpoena to Wintec

         To the 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) ...

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