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Odyssey Reinsurance Co. v. Nagby

United States District Court, S.D. California

March 29, 2018

ODYSSEY REINSURANCE COMPANY, Plaintiff,
v.
RICHARD KEITH NAGBY et al., Defendants. AND RELATED COUNTER-CLAIMS AND CROSS-CLAIMS

          ORDER [Doc. 107, 108 & 111.]

          Hon. William V. Gallo United States Magistrate Judge.

         The 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 45.[1] As explained below, the Court ORDERS Scannell to produce responsive documents in his possession.

         I. Pertinent Background

         Plaintiff 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.[2] 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.

         II. Legal Background

         Rule 34 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).

         “On 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).

         III. Discussion

         A. Waiver

         Plaintiff contends Scannell waived any objection to the subpoena when he failed to timely object. The Court agrees.

         1. The Objections Are Untimely

         Plaintiff 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.

         2. Lack of Unusual Circumstances

         “Courts 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, [3] 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 1998. http://members.calbar.ca.gov/fal/Member/Detail/199300 (last visited March 23, 2018). As such, he ...


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