20 Days to Move on a Consumer

Thai v. Richmond City Center, No. G060823 (D4f3 Dec. 12, 2022)

One of the weird things about the Code of Civil Procedure is that there are two overlapping sets of statutes that deal with third party discovery. There are the third party discovery provisions of the Civil Discovery Act—Code Civ. Proc. §§ 2020.110-2020.440—which denote all third party discovery as “depositions” and deal with records, testimony, and records and testimony subpoenas. Then there are an older set of statutes in the “of the production of evidence” title, which are addressed to both discovery and trial subpoenas. See §§ 1985-1997. For some reason, nobody bothered to harmonize these when the Discovery Act was passed. And even more confusingly, the legislature continues to amend the older provisions without re-codifying them. Sometimes, they created contradictory requirements. This case points to one of them.

The older statutes have some requirements for when a consumer’s personal records are sought through a subpoena duces tecum. See § 1985.3. The require notice to the consumer, who has an opportunity to object, which stays compliance with the subpoena. If an objection is made, the party serving the subpoena can only obtain the records by filing a motion to compel. That motion needs to be filed within 20 days. § 1985.3(g).

But under the Discovery Act, third party records can be obtained through a so-called “records only” deposition subpoena. § 2020.410. As with any deposition, the deponent can object to the form of the notice, but that alone does not stay the obligation to comply. § 2025.410. If the records aren’t produced, the noticing party can file a motion to compel. It has 60 days to do so. § 2025.480(b). Case law says the 60 days starts to run from the service of objections. 

Here, Plaintiff is suing Defendant over the purchase of Defendant's interest in a Partnership they co-owned. Plaintiff served subpoenas with testimony and records and records only demands on Partnership’s accountant and property manager that sought certain consumer records belonging to Partnership. Partnership objected. About 55 days later, Plaintiff filed a motion to compel. The court granted the motion and Partnership appealed.

The motion is timely under the 60 days but untimely under the 20. The question, then, is which deadline applies: the 20 days under § 1985.3(g) or the 60 under § 2025.480(b)? Relying on the structure of the statutes, their legislative history, and the canon that the specific controls over the general, the court finds that the 20 days applies.

Reversed.

 

A Little Victory for the Freedom of Anonymous Speech on the Internet

Roe v. Halbig, No. H043248 (D6 Nov. 20, 2018)

Some foil-hatted deplorable claims to be getting at the “truth” of the 2012 Sandy Hill school shootings. He started a GoFundMe campaign and, in testament to the general awfulness of the times in which we live, raised more than $30k. But then GoFundMe shut him down because, well, he’s raising money to spread false conspiracy theories about the murders of innocent children.

Tax Return Privilege Overriden to Prevent Fraud

Li. v. Yan, No. A144994 (D1d2 May 2, 2016)

This is a collections case. Like most collections cases that progress to an appeal, the facts are convoluted and difficult to follow. But the court’s rulings aren’t. First, when the debtor is subject to a judgment debtor exam, the creditor doesn’t need to personally serve a subpoena demanding that he bring docs to the exam. Service in the same manner as applies to pre-judgment party discovery (e.g., mail service to counsel) will suffice.

Second, although California recognizes a privilege against the discovery of tax returns, it can be overridden in difficult collection cases by a “public policy greater than that of the confidentiality of tax returns.” To wit, the “policy is to prevent fraud against creditors. And against lenders. And perhaps against the court.” The record here showed that debtor had engaged in a bunch of pretty egregious conduct designed to frustrate the collections process. Under the circumstances, the court finds the privilege overridden.

Tick, Tick, Tick . . .

Rutledge v. Hewlett-Packard Co., No H036790 (D6 July 22, 2015)

This case presents a grab bag of arguments on an appeal of a trial court’s granting of summary adjudication in a ten-year-old class action involving allegedly defective computer parts. Of procedural interest are a pair of issues about class certification and two issues related to discovery sanctions. In particular, one of the sanctions orders highlights a potential trap involving motions to compel productions of documents under third-party subpoenas.

Let’s focus on the interesting* issue first.

Sanctions Stick for Failure to Withdraw Moot Motion to Quash

Evilsizor v. Sweeney, No. A140059 (D1d1 Oct. 28, 2014)

Interesting discovery issue that comes up a lot. In a divorce case, husband subpoenaed some bank docs from wife. The docs, however, also contained private information about wife’s dad, who filed a motion to quash, without bothering to meet and confer. As soon as he found out, husband amended the subpoena to exclude dad’s info, and made various efforts to resolve any dispute.

But dad did not withdraw the motion to quash, and the husband was required to file an opposition, which sought sanctions under Code of Civil Procedure § 1987.2 for pursuing a substantially unjustified discovery motion. Dad then withdrew the motion before the hearing, which the trial court nonetheless held to address potential sanctions. The trial court ruled that, although the initial motion was not unjustified, husband went to lengths to address dad’s concerns and to avoid litigating the issue, but dad declined to resolve the issue after the subpoena was amended. It awarded a sanction of $2,225 against the father.

The court first addresses an issue of appealability.  Generally, under Code of Civil Procedure § 904.1, orders imposing sanctions of less than $5,000 are appealable under only upon final judgment.  The statute is ambiguous in that it addresses “parties,” but it isn’t clear whether it is directed to the parties to the action or the parties to the discovery motion. The court declines to resolve the issue and exercises its discretion—expressly afforded by § 904.1(b)—to take up the matter on a writ.

On the merits, § 1987.2, the quashal statute, permits the imposition of sanctions when a “motion was made” without substantial justification.  The court decides that “made” means not only when the motion was filed, but includes the time during which it was pursued. So by failing to withdraw the motion after it was no longer substantially justified, dad came within in the ambit of the court’s power to issue sanctions. Further, the trial court was within its rights to order attorneys’ fees, even though husband’s counsel was pretty quick to threaten sanctions and could have avoided the hearing and opposition just by informing the court that he had amended the subpoena to address the objections. Judging that was all within the sound discretion of the trial court and would not be second guessed on appeal.

Affirmed.

There's No Implied Consent Under the Stored Communications Act, But Coerced Consent Is AOK

Negro v. Superior Court, No. H040146 (D6 as modified Nov. 18, 2014)

Generally, the Stored Communications Act, 18 U.S.C. §§ 2701–12, prohibits the provider of an electronic communications service from divulging the contents of communications stored on its service. This is why you ordinarily can’t subpoena Google for the contents of your opponent’s gmail account, which is just what the real party did in this writ case.

There is an exception, however, for when the subscriber gives its consent. But the consent cannot be implicit. It must be real consent-in-fact. Thus, to the extent the trial court here denied a motion to quash based on implicit consent by the subscriber, it erred.

That said, courts have nevertheless recognized that parties to litigation can be compelled by the court to give their consent, even though that doesn’t jibe with the concept of consent as commonly understood. Here, after the petitioner’s motion to quash was denied, he was ordered by a Florida court to consent to Google’s disclosing his gmail to the real party—his opponent in that litigation. He abided by the order, so there was effective consent to require Google to produce the documents. 

Finally, the court rejects Google's argument that the Act immunizes it from participating in third party discovery. Thus, the court here declines to issue a writ requiring the trial court to quash the subpoena.

As a side point, the subscriber’s consent was provided after he filed his writ petition in this case. In relying upon the evidence of consent as a basis to deny the writ, the court notes an exception to the general rule that the record is static on appeal. An appellate court proceeding in mandate can consider all relevant evidence, including facts not existing until after the petition was filed, particularly when the additional evidence may validate an action that would otherwise have to be set aside. Something to keep in mind when engaged in writ practice in a fast-moving and still developing case.

Writ granted, but only to require the trial court to correct its basis for denying the motion to quash.

The ESI Dream of the '90s Is Alive in State Court

Vasquez v. Cal. Sch. of Culinary Arts, No. B250600 (D2d2 Sept. 26, 2014)

In responding to a business records subpoena for student loan files, Sallie Mae jerked around some plaintiff lawyers and was cagey about the cost and burden of compliance. After Sallie Mae’s motion to quash was denied, the trial court awarded about $20k in sanctions because its resistance was not substantially justified.  In an opinion that addresses Code of Civil Procedure § 1985.8—rarely cited in any opinion—the court affirms.

The court first notes that the fact that a subpoena seeks ESI from a third party does not automatically make it unduly burdensome.  (Because it’s not, like, 1990!)  It also rejects Sallie Mae’s argument that “documents” didn’t exist because the information was contained in an electronic database and producing what plaintiffs wanted would entail the creation of “new” documents. That the court's reasoning is based on a 2006 federal district court case—there is no California authority on point—is itself telling on the discouraging state of the state of the art on ESI discovery law in California state court.
 
So the rule is that if you want database information from a third party, you can get it, so long as it is maintained in a way that, even with some work, it can be extracted from the database.  You do, however, have to pay the costs of extraction.  On the other hand, the third party is obliged to provide a reasonable estimate of the costs of compilation. And if the third refuses to do so and acts unreasonably, it will subject to sanctions for a lack of substantial justification.
 
Affirmed.

A Deposition Is a Business Records Subpoena Is a Deposition

Naser v. Lakeridge Athletic Club, No. A138353 (D1d5 June 27, 2014)

Losing plaintiff appeals denial of motion to tax costs. The court decides two issues: First, jury fees are recoverable costs even if the case doesn’t make it to jury trial. Code of Civil Procedure § 631, as recently amended, requires a non-refundable deposit of $150 in jury fees on before the first CMC. Since there’s no chance for a refund even if, for instance, the defendant wins on summary judgment, the fee that can be recovered as cost under § 1033.5(a)(1). Second, the defendant can recover the cost of subpoenaing documents under the provision that allows recovery of deposition costs. Somewhat anomalously, the Discovery Act calls a third party document subpoena where no testimony is sought a “deposition” subpoena. See § 2020.010. So, although it seems semantically wacky, costs incurred in issuing and enforcing such a subpoena are thus costs of “[t]aking, video recording, and transcribing necessary depositions including . . . travel expenses to attend depositions” under § 1033(a)(3).

Affirmed.

A Funny Business Records Subpoena ...

Dodd v. Cruz, No. B247493 (Feb. 5, 2013)

The court of appeal holds that the merits of a motion to quash a deposition subpoena seeking business records can be addressed as part of an interlocutory appeal of sanctions awarded along with a quashal. The court then reverses the quashal because the documents sought were, in fact, discoverable.