United States District Court, S.D. California
ORDER [Doc. 107, 108 & 111.]
William V. Gallo United States Magistrate Judge.
dispute before the Court concerns a third-party deponent John
Scannell's failure to timely comply with, or object to, a
subpoena for documents under Federal Rule of Civil Procedure
As explained below, the Court ORDERS Scannell to produce
responsive documents in his possession.
issued a third-party subpoena under Rule 45 to Scannell, who
performed tax-related services for Defendants Richard and
Diane Nagby, Cal Regent Insurances Services, Pacific
Brokerage Insurance, and Claims Technology Services Corp. The
subpoena sought various tax and financial documents. Scannell
informed Richard Nagby about the subpoena and its contents
the same day he received it on February 1, 2018. Two days
before the February 23, 2018 compliance date designated in
the subpoena, Scannell wrote a letter to Plaintiff's
counsel, objecting based on attorney-client privilege and
California's taxpayer privilege and declining to produce
any documents. However, this letter came after the 14-day
objection deadline set forth in Rule 45 and to date, neither
Scannell nor the affected defendants have filed a motion to
quash or modify the subpoena. The parties' and
Scannell's disagreement about his obligation to comply
with the subpoena is now before this Court.
authorizes a party to seek documents subject to the Rule
26's relevance and proportionality limitations.
Fed.R.Civ.P. 34(a)(1). Rule 34 also allows “a nonparty
[to] be compelled to produce documents and tangible things or
to permit an inspection” under Rule 45's subpoena
provisions. Id. 34(c). If the deponent disobeys the
subpoena, the district court can hold the deponent in
contempt. Fed.R.Civ.P. 45(g).
timely motion, ” a court “must quash or modify a
subpoena that, ” as relevant here, “requires
disclosure of privileged or other protected matter, if no
exception or waiver applies.” Fed.R.Civ.P.
45(d)(3)(A)(iii). In addition-or in the
alternative-”the nonparty served with the subpoena
duces tecum may make objections . . . within 14 days
after service or before the time for compliance, if less than
14 days.” Moon v. SCP Pool Corp., 232 F.R.D.
633, 636 (C.D. Cal. 2005); see also McCoy v. Sw. Airlines
Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002). Although the
failure to timely assert objections constitutes a waiver,
“[i]n unusual circumstances and for good cause, . . .
the failure to act timely will not bar consideration of
objections [to a Rule 45 subpoena].” Moon, 232
F.R.D. at 636 (internal citation omitted).
contends Scannell waived any objection to the subpoena when
he failed to timely object. The Court agrees.
The Objections Are Untimely
served the disputed subpoena on February 1, 2018. (Doc. No.
111-1 at 2 ¶ 4.) Although Plaintiff designated February
23, 2018 as the compliance date, any objections were to be
served on or before February 15, 2018. Fed.R.Civ.P.
45(d)(2)(B) (“The objection must be served before
the earlier of the time specified for compliance or 14
days after the subpoena is served.”) (emphasis added).
However, Scannell did not object until February 21, 2018-six
days late-in a letter to Plaintiff's counsel. (Doc. No.
111-1 at 5.) The Court recognizes that Scannell believes he
complied with Rule 45 when he served his first objections two
days before the subpoena's compliance date. However, this
compliance date is of no moment here because Rule 45 plainly
mandates that objections are due at the
latest 14 days from service of subpoenas. Where, as
here, the designated compliance date is longer than 14 days
from service, Rule 45 clearly sets the default maximum
objection deadline at 14 days. Thus, while Scannell served
his objections before the compliance deadline, they were
plainly untimely for purposes of Rule 45(d)(2)(B). As a
result, any objections are waived unless unusual
circumstances or good cause exist. The Court finds that
neither unusual circumstances nor good cause exist here.
Lack of Unusual Circumstances
have found unusual circumstances where, for instance, the
subpoena is overbroad on its face and exceeds the bounds of
fair discovery and the subpoenaed witness is a non-party
acting in good faith.” Moon, 232 F.R.D. at 636
(collecting cases); see also McCoy, 211 F.R.D. at
385. First, the subject subpoena is not overbroad, and it
appears it issued in a good-faith effort to pursue the
judgment Plaintiff has secured in another District. The
discovery sought is also not beyond the bounds of fair
discovery in a case like this, nor has Scannell argued as
much. He has not argued that the responsive documents are
irrelevant, immaterial,  or that it would be burdensome or
oppressive to produce them. Moreover, although Scannell is a
nonparty acting in good faith, he is not an ordinary
layperson, unschooled in the legal system-he is currently an
active member of the State Bar of California and has
continuously been a licensed attorney in the State since
(last visited March 23, 2018). As such, he ...