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concluding that a motion to compel filed five months before the discovery cutoff was timely based on the circumstances of that case even though it was filed 11 months after the discovery dispute arose
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Bryan A. Merryman, Pro Hac Vice, Catherine S. Simonsen, Peter D’Agostino, Pro Hac Vice, White & Case LLP, Los Angeles, CA, Claire A. DeLelle, Celia A. McLaughlin, Pro Hac Vice, White & Case LLP, Washington, DC, I. Scott Bogatz, Kerry Elizabeth Kleiman, Reid Rubinstein & Bogatz, Las Vegas, NV, for Plaintiff(s).
Anne-Marie Birk, Samuel D. Castor, Switch, Ltd., Las Vegas, NV, Chad Harrison, Joseph S. Kistler, Mark A. Hutchison, Cynthia Milanowski, Jacob A. Reynolds, Jeffrey R. Hall, Hutchison & Steffen, PLLC, Las Vegas, NV, for Defendant(s) Switch, Ltd.
Alvin M. Gomez, Pro Hac Vice, Gomez Law Group, P.C., Carlsbad, CA, Don P. Chairez, Law Office of Don Chairez, Las Vegas, NV, for Defendant(s) Sandler Partners, LLC.
ORDER [Docket No. 101]
Nancy J. Koppe, United States Magistrate Judge
Pending before the Court is Plaintiff’s motion to compel the production of documents from nonparty Nicole Folino. Docket No. 101. Ms. Folino filed a response in opposition, and Plaintiff filed a reply. Docket Nos. 103, 105. The parties filed supplemental briefs. Docket Nos. 107, 108. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, Plaintiff’s motion to compel is hereby GRANTED.
Plaintiff seeks judicial notice of a decision issued by a magistrate judge in the Central District of California resolving a motion to compel another nonparty to comply with a subpoena related to the instant case. See Docket No. 112. Although Ms. Folino objects on various grounds, she recognizes that courts may treat decisions from sister districts as persuasive authority. See Docket No. 114 at 2. The Court treats the submitted decision as persuasive authority.
I. BACKGROUND
This case involves claims that Defendant engaged in anticompetitive conduct with respect to high-end colocation data centers within the Las Vegas area. See Compl. (Docket No. 1) at ¶ 3. Although some state law claims are also brought, at its heart this case involves claims that Defendant’s alleged conduct violated Sections 1 and 2 of the Sherman Act by monopolizing, attempting to monopolize, and engaging in unlawful restraints of trade. See, e.g., id. at ¶¶ 147-171. In particular, Plaintiff alleges that Defendant unlawfully stifled competition in an effort to maintain its monopoly in high-end colocation data centers in the Las Vegas metropolitan area through a variety of means, including reliance on exclusive-dealings agreements, threats of refusals to deal, predatory pricing, and a campaign of disparagement of Defendant’s competitors (including Plaintiff). See id. at ¶¶ 44, 73; see also id. at ¶¶ 95-120 (providing product and geographic market definition).
Ms. Folino is not directly affiliated with any party to this action. She is employed as a Regional Vice President for Sandler Partners and had been employed during relevant times as an Enterprise Business Consultant for TelePacific Communications. See Docket No. 101-1 at ¶¶ 5, 11. Ms. Folino is married to the former Director of Connectivity for Defendant, who recently left his employment with Defendant to also work for Sandler Partners. See id. at ¶ 5. Plaintiff contends that Ms. Folino’s job entails working with prospective colocation data center customers to place them in particular data centers. See id. at ¶ 11. Plaintiff further contends that Ms. Folino used that position to dissuade customers from utilizing Plaintiff’s colocation centers and to instead steer them to buy Defendant’s services. Plaintiff highlights Ms. Folino’s involvement in the decision by the SLS Las Vegas and the Cannery Casino Resorts to forego a business association with Plaintiff and to instead become Defendant’s customers. See id. at ¶¶ 4-13.
On May 30, 2018, Plaintiff served Ms. Folino with a subpoena to produce documents. See Docket No. 101-2. That subpoena requests 12 categories of documents related to, inter alia, Ms. Folino’s employment, her connection to Defendant, Defendant’s alleged anticompetitive conduct, and Ms. Folino’s discussions regarding Plaintiff. See id. at 10-12. On June 11, 2018, Ms. Folino produced two documents in response to the subpoena. See Docket No. 101-1 at ¶ 14. After initial attempts to meet-and-confer by Plaintiff, Ms. Folino directed further inquiries regarding her production to Sandler Partners. See id. at ¶ 15. Between September 26 and October 23, 2018, Plaintiff’s counsel sent several emails to Sandler Partners’ counsel, Alvin Gomez, and left two telephonic messages for him with his assistant seeking to initiate a meet-and-confer. See id. at ¶¶ 18-21. Having obtained no response, Plaintiff ceased its efforts to obtain further documents from Ms. Folino at that point and shifted its attention to reviewing the then-imminent document production from Defendant itself. See id. at ¶ 22.
Plaintiff and Ms. Folino dispute whether the email address used was an appropriate means to contact Mr. Gomez. Compare, e.g., Docket No. 101-1 at ¶ 21 with Docket No. 103-1 at ¶ 13. The Court addresses that issue below.
In early 2019, Plaintiff’s review of the party discovery reinforced its belief that Ms. Folino possessed important documents that could not be obtained from Defendant. See id. at ¶ 23. On February 12, 2019, counsel for Plaintiff again emailed Mr. Gomez to request a meet-and-confer regarding Ms. Folino’s response to the document subpoena. See id. at ¶ 24. On February 19, 2019, counsel threatened to bring the matter to the Court absent receiving a prompt response from Mr. Gomez. See id. at ¶ 25. Mr. Gomez responded by facsimile that same day, indicating that he had not received the previous emails and requesting a formal letter outlining Plaintiff’s factual and legal contentions. See id. at ¶ 26. On February 20, 2019, Plaintiff sent that letter by email, facsimile, and United States mail. See id. at ¶ 27. On February 21, 2019, Mr. Gomez responded that Plaintiff had been dilatory and had waived enforcement of its subpoena. See id. at ¶ 28. On February 22, 2019, Plaintiff disputed that it had been dilatory or that any motion to compel would be untimely. See id. at ¶ 29. Counsel then engaged in further meet-and-confer efforts, including a telephonic conversation, but those efforts ended on March 11, 2019, when counsel determined they were unable to resolve their dispute without motion practice. See id. at ¶¶ 30-34. The instant motion to compel followed. Docket No. 101.
This case was filed on September 7, 2017. See Docket No. 1. The Court initially issued a scheduling order setting the fact discovery cutoff for November 1, 2018, and the expert discovery cutoff for January 30, 2019. See Docket No. 40 at 5. On stipulation by the parties, on September 25, 2018, the Court extended the fact discovery deadline to September 27, 2019, set expert disclosures for a schedule to run thereafter, and established the deadline for dispositive motions as January 24, 2020. See Docket No. 81. No trial date has been set.
II. TIMELINESS OF MOTION TO COMPEL
Ms. Folino’s primary argument in opposing Plaintiff’s motion to compel is that there was undue delay in filing that motion such that Plaintiff has waived the right to enforce the subpoena. See Docket No. 103 at 7; see also Docket No. 108 at 3-6. Plaintiff counters that any delay in filing the motion was justified, and that its motion should be decided on its merits. See Docket No. 105 at 12-13; see also Docket No. 107 at 7-10. Plaintiff has the better argument.
A. Standards
A party may not unduly delay in moving to compel discovery. E.g., Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999). "Untimeliness is sufficient ground, standing alone, to deny a discovery motion." KST Data, Inc. v. DXC Tech. Co., 344 F.Supp.3d 1132, 1136 n.1 (C.D. Cal. 2018) (quoting Williams v. Las Vegas Metro. Police Dept., Case No. 2:13-cv-01340-GMN-NJK, 2015 WL 3489553, at *1 (D. Nev. June 3, 2015)). Indeed, courts "will often deny Rule 37(a) motions because the moving party delayed too long." 8B Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE, § 2285 (3d ed. Supp. 2019) (collecting cases).
Guideposts have been developed regarding timeliness of motions to compel. The first guidepost is that motions to compel filed during the discovery period are rarely considered to be untimely. See Gault, 184 F.R.D. at 622. The second guidepost is that motions to compel filed after the deadline for dispositive motions are considered to be untimely absent unusual circumstances. See id. While guideposts are helpful, they are not bright-line rules. The timeliness of a motion to compel is determined based on "the entire complex of circumstances that gave rise to the motion, and what is untimely in one case may not be in another." In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 333 (N.D.Ill. 2005). Several judges within this District have relied upon a non-exhaustive list of factors in determining the timeliness of a motion to compel: (1) the length of time since expiration of the discovery deadline; (2) the length of time the moving party has known about the discovery; (3) whether the discovery deadline has been extended; (4) the explanation for the tardiness or delay; (5) whether dispositive motions have been scheduled or filed; (6) the age of the case; (7) any prejudice to the party from whom late discovery is sought; and (8) disruption of the Court’s schedule. See E.E.O.C. v. Pioneer Hotel, Inc., Case No. 2:11-cv-01588-LRH-GWF, 2014 WL 5045109, at *1 (D. Nev. Oct. 9, 2014) (citing Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 398 (N.D. Tex. 2006)); see also Williams, 2015 WL 3489553, at *2; Krause v. Nev. Mut. Ins. Co., Case No. 2:12-cv-00342-JCM-CWH, 2014 WL 428675, *2 (D. Nev. Feb. 4, 2014), objection overruled, 2014 WL 3592655, at *5 (D. Nev. July 21, 2014). "Because no single rule or deadline can encompass the myriad variations in discovery, magistrate judges are given broad discretion to manage the overall process in the interests of dispatch and fairness." Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F.Supp.2d 1040, 1044 (S.D. Iowa 2010).
Discovery motions filed after the dispositive motion deadline are presumptively untimely and such late-filed motions will be denied on that basis alone absent a showing of unusual circumstances. E.g., Gault, 184 F.R.D. at 622. When a motion to compel is filed after that deadline, courts may address the dispositive motion deadline as a stand-alone issue rather than as one of several factors to be considered in deciding the timeliness of a discovery motion. See, e.g., Exobox Techs. Corp. v. Tsambis, Case No. 2:14-cv-501-RFB-VCF, 2017 WL 977859, at *1 (D. Nev. Mar. 10, 2017); Gray v. Cox, Case No. 2:14-cv-01094-JAD-PAL, 2016 WL 4367236, at *3 (D. Nev. Aug. 12, 2016); Hall v. Schumacher, Case No. 2:10-cv-01353-GMN-LRL, 2011 WL 4458845, at *2 (D. Nev. Sept. 23, 2011); Christmas v. MERS, Case No. 2:09-cv-01389-RLH-GWF, 2010 WL 2695662, at *2 (D. Nev. July 2, 2010). In this case, the motion to compel was filed well before the dispositive motion deadline and the Court will address that fact within its evaluation of the overall circumstances of the case.
B. Plaintiff’s Overarching Arguments
Before turning to the specific circumstances of this case, the Court will first address the parties’ overarching arguments regarding the appropriate legal analysis.
Plaintiff argues that there is no deadline to move to compel a nonparty to produce documents because the applicable provision in Rule 45 of the Federal Rules of Civil Procedure allows for the filing of a motion to compel "[a]t any time." See, e.g., Docket No. 107 at 10-13 (quoting Fed.R.Civ.P. 45(d)(2)(B)(i)). This appears to be an issue of first impression in this District. Plaintiff cites no case law from any jurisdiction adopting its broad reading of this provision in Rule 45. At least one court has directly rejected this argument, holding that Rule 45’s "at any time" language does not save a motion to compel that was deemed untimely. Callidus Capital Corp. v. FCA Grp., Case No. 14-10484, 2018 WL 1556231, at *5 (E.D. Mich. Mar. 30, 2018).
Some of these cases cited herein reference Rule 45(c)(2)(B)(i), which was the home of the provision at issue until it was moved to Rule 45(d)(2)(B)(i) as part of the 2013 amendments.
Plaintiff walks a tightrope in advancing this argument because it acknowledges that nonparty discovery must be completed before the discovery cutoff just like other discovery. See Docket No. 107 at 12; see also Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999) ("Case law establishes that subpoenas under Rule 45 are discovery, and must be utilized within the time period permitted for discovery in a case"); Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 177 F.R.D. 443, 445 (D. Minn. 1997) (finding "no plausible reason to exempt Rule 45 discovery from the time constraints that are applicable to all of the other discovery methods recognized by the Federal Rules of Civil Procedure"). Plaintiff references the potential that delaying motion practice on a subpoena could reduce the burden on nonparties in some cases where other sources are found in the interim for the same information. See Docket No. 107 at 12. Such speculation does not suffice to carve out this specific motion practice from the general framework that party and nonparty discovery be advanced on the same timetable. Cf. Kendrick v. Heckler, 778 F.2d 253, 257 (5th Cir. 1985) (given drafters’ intention for parallel procedures, declining to interpret earlier version of Rule 45 to create a timeframe for moving to compel documents from a subpoenaed nonparty that diverged from the timeframe for moving to compel documents from a party under Rule 34).
This Court is similarly unpersuaded by Plaintiff’s reliance on this text in Rule 45(d)(2)(B)(i). District courts enjoy broad authority to manage their dockets and control discovery. See, e.g., Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Indeed, "[a] district court’s case-management powers apply with particular force to the regulation of discovery and the reconciliation of discovery disputes." Faigin v. Kelly, 184 F.3d 67, 84 (1st Cir. 1999). Taking Plaintiff’s argument to its logical conclusion, a motion to compel compliance with a Rule 45 subpoena seeking the production of documents must be considered timely when filed after summary judgment motions have been briefed even though such discovery may bear on the issues addressed therein and would impair a court’s ability to advance the case by deciding summary judgment. Cf. Haney v. Nelson, 476 Fed.Appx. 147, 148 (9th Cir. 2012) (holding that discovery should be completed before summary judgment motions are determined). Indeed, under Plaintiff’s interpretation of the rule, a motion to compel must be considered timely even if filed the night before trial. But see Eng v. Blood, Case No. 9:04-CV-1146 (NAM/GHL), 2008 WL 2788894, at *10 (N.D.N.Y. July 17, 2008) (motion to compel a "trial subpoena" cannot be used as an end-run around discovery deadlines). Given these absurd results, it is unsurprising that courts apply an undue delay analysis to determine the timeliness of a motion to compel compliance with a Rule 45 subpoena for production of documents. See, e.g., Bartech Sys. Int’l, Inc. v. Mobile Simple Sols., Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 WL 1787905, at *2 (D. Nev. Jan. 31, 2018), recon. denied, 2018 WL 1785869 (D. Nev. Apr. 13, 2018); Hedquist v. Patterson, Case No. 14-CV-0045-J, 2017 WL 5247909, at *5 (D. Wyo. Apr. 14, 2017), aff’d sub nom. Hedquist v. Beamer, 763 Fed.Appx. 705, 716-17 (10th Cir. 2019); Stahl v. Coschocton Cty., Ohio, Case No. 2:15-cv-572, 2016 WL 5341800, at *3 (S.D. Ohio Sept. 23, 2016); Dixon v. Greyhound Lines, Inc., Civ. Action No. 13-179-JWD-RLB, 2014 WL 6474355, at *4 (M.D. La. Nov. 19, 2014); 9 MOORE’S FEDERAL PRACTICE, § 45.03[2] (2019) (the lack of an express deadline in the text of Rule 45 "does not mean ... that a subpoena should be served or enforced at any time" (emphasis added)). In short, the text of Rule 45(d)(2)(B)(i) does not permit a litigant to sit on its hands indefinitely before filing a motion to compel the production of subpoenaed documents.
The pertinent subdivision of Rule 45 states as follows:
Plaintiff next argues that, to the extent there is a timeliness requirement for its motion to compel, all motions to compel filed within the discovery period must automatically be found to be timely without further inquiry. Docket No. 107 at 6-7. The Court again disagrees with such a broad proposition. As noted above, the filing of a motion to compel prior to the discovery cutoff militates in favor of its timeliness and a finding of untimeliness in that scenario will be "rare[ ]." See Gault, 184 F.R.D. at 622. Nonetheless, a non-expired discovery cutoff "do[es] not grant the parties carte blanche rights to demand sizeable discovery requests up to the last possible minute. Discovery is meant to be a balanced and, hopefully, front-loaded process, not one involving deadline brinksmanship." Haviland, 692 F.Supp.2d at 1044. Litigants cannot unduly delay filing a discovery motion with impunity; the circumstances of a particular case may render untimely a discovery motion filed within the discovery period. See, e.g., id. (affirming finding of untimeliness for a motion to compel filed roughly 11 days before the discovery cutoff and a month before the outer deadline for discovery motions); Sulfuric Acid, 231 F.R.D. at 337, 341 (finding untimely a motion to compel filed on the last day of discovery); Wells v. Sears Roebuck & Co., 203 F.R.D. 240, 241 (S.D.Miss. 2001) (finding untimely a motion to compel filed more than a month before the discovery cutoff); see also Aardwolf Indus., LLC v. Abaco Machs. USA, Inc., Case No. CV 16-01968-GW (JEMx), 2017 WL 4769431, at *1-2 (C.D. Cal. July 10, 2017) (finding untimely a motion to compel filed more than a month before the discovery cutoff), objection overruled, 2017 WL 10339007 (C.D. Cal. Aug. 9, 2017); Pioneer Hotel, 2014 WL 5045109, at *1, 2 (finding untimely a motion to compel filed on the discovery cutoff). Especially in cases with a lengthy discovery period, such as this one, the filing of a motion to compel within the discovery period does not— standing alone— automatically render that motion timely.
In sum, a motion to compel subpoenaed documents brought pursuant to Rule 45(d)(2)(B)(i) must be filed without undue delay. The "[a]t any time" language in the text of that Rule does not obviate this requirement. The filing of such a motion within the discovery period militates in favor of finding it to be timely, but does not guarantee a finding of timeliness.
C. Ms. Folino’s Overarching Argument
Ms. Folino advances her own overarching arguments regarding the standards governing the timeliness inquiry. She urges this Court to follow a California state court rule that a motion to compel should be filed within two months of receiving a discovery response. See Docket No. 103 at 7. Some federal courts have implemented similar local rules that require the filing of a motion to compel within a specific number of days measured from the receipt of a discovery response. See Sulfuric Acid, 231 F.R.D. at 332-33 (noting the local rules for the District of South Carolina and the District of Kansas). This District has not adopted such a rule, however, and judges here have consistently followed the more flexible approach outlined long ago in Gault, 184 F.R.D. at 622. The Court declines to apply a strict deadline that is not encompassed in the local rules and that diverges from well-settled case law from this District.
Ms. Folino also points to "this Court’s Local Rule requirement that a meet-and-confer phone call must be held promptly after discovery of alleged deficient responses." Docket No. 103 at 10. The fundamental problem with this argument is that the local rule contains no promptness requirement. Instead, it provides that:
Discovery motions will not be considered unless the movant (1) has made a good-faith effort to meet and confer as defined in LR IA 1-3(f) before filing the motion, and (2) includes a declaration setting forth the details and results of the meet-and-confer conference about each disputed discovery request.
Local Rule 26-7(c); see also Local Rule IA 1-3(f) (containing no provision regarding promptness or timeliness). Ms. Folino identifies no aspect of this local rule that establishes a promptness requirement at all, let alone one that alters the approach taken in Gault, 184 F.R.D. at 622. In sum, the local rules in this District neither set a specific deadline for filing a motion to compel measured from the days of the response to a subpoena, nor embody a promptness requirement to meet-and-confer that strays from the well-settled case law that a motion to compel must not be filed without undue delay.
It is not clear whether Ms. Folino is arguing that a delay in convening the pre-filing conference could evidence a lack of good faith. While there may be instances in which the timing of meet-and-confer efforts impact the analysis of whether counsel’s conferral efforts were made in good faith, Plaintiff in this case conferred in good faith regardless of the timing issues involved.
D. Analysis
Having resolved the overarching arguments advanced regarding the timeliness standards, the Court turns to its analysis. As noted above, several judges within this District have relied upon a non-exhaustive list of factors in determining the timeliness of a motion to compel: (1) the length of time since expiration of the discovery deadline; (2) the length of time the moving party has known about the discovery; (3) whether the discovery deadline has been extended; (4) the explanation for the tardiness or delay; (5) whether dispositive motions have been scheduled or filed; (6) the age of the case; (7) any prejudice to the party from whom late discovery is sought; and (8) disruption of the Court’s schedule. As discussed more fully below, Plaintiff’s motion to compel is timely.
(1) Length of time since expiration of the deadline.
The instant motion to compel was filed roughly five months before the current discovery cutoff in this case. This factor militates strongly in favor of finding that the motion is timely.
(2) Length of time the moving party has known about the discovery.
The subpoena in dispute was served on May 30, 2018. See Docket No. 101-1 at ¶ 3; see also Docket No. 101-2. Ms. Folino’s initial response that Plaintiff asserts is defective was served on June 11, 2018. See Docket No. 101-1 at ¶ 14; see also Docket No. 101-21. The instant motion to compel was filed 322 days or nearly 11 months after that production, on April 29, 2019. See Docket No. 101. This factor militates strongly against finding that the motion is timely.
(3) Whether the discovery deadline has been previously extended.
The Court initially issued a scheduling order setting the fact discovery cutoff for November 1, 2018, but extended that deadline one time by stipulation of the parties to September 27, 2019. Docket No. 40 at 5; Docket No. 81. Although there have not been numerous extensions, the stipulated extension adopted by the Court provided a significant additional period for discovery. This factor is neutral.
Ms. Folino argues that this stipulated extension evidences Plaintiff’s dereliction of this case more broadly. Docket No. 103 at 9-10. That contention is not well-founded. The extension at issue was premised on the need for additional time to complete discovery given the parties’ agreement on how best to proceed with the search for and production of voluminous materials. See Docket No. 79 at 3. Implicit in the Court’s approval of that stipulation was a finding that the parties had been diligent in pursuing discovery to that date. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (good cause to extend deadlines in the scheduling order requires a showing of diligence); see also Local Rule 7-1(b) (stipulations for extensions of Court deadlines require Court approval).
(4) The explanation for the tardiness or delay
This is the factor that the parties most fervently dispute. Ms. Folino contends that Plaintiff did not take appropriate action to institute a meet-and-confer on her response to the subpoena and that it eventually dropped the ball to pursue other avenues of discovery. See, e.g., Docket No. 103 at 6; Docket No. 108 at 4-5. Plaintiff contends that Ms. Folino (through her attorney, Mr. Gomez) thwarted the meet-and-confer process by ignoring its requests to discuss the subpoena response and, in light of that obstructionism, Plaintiff eventually turned to incoming party discovery before deciding whether to further press the issue with Ms. Folino. See, e.g., Docket No. 107 at 8-9, 10. Plaintiff’s accounting of the events is the one supported by the record.
It is clear that Plaintiff’s counsel promptly and repeatedly sought out a meet-and-confer regarding Ms. Folino’s response to the subpoena. After initial attempts to meet-and-confer by Plaintiff with Ms. Folino in June 2018, she directed further inquiries regarding her production to Sandler Partners. See Docket No. 101-1 at ¶ 15. Defendant then filed a motion to quash, which was withdrawn on August 20, 2018. See Docket Nos. 63, 76. Between September 26 and October 23, 2018, Plaintiff’s counsel attempted to reengage in meet-and-confer efforts by sending several emails to Sandler Partners’ counsel, Mr. Gomez, and leaving two telephonic messages for him with his assistant. See Docket No. 101-1 at ¶¶ 18-21.
In asserting that these efforts support a finding of undue delay, Mr. Gomez notes that he prefers to receive meet-and-confer correspondence by traditional letter and further asserts that he does not regularly check the email address relied upon by Plaintiff. See, e.g., Docket No. 103-1 at ¶¶ 13-15; Docket No. 103 at 6. This argument is baseless. In the modern practice of law, it is neither unreasonable nor uncommon for attorneys to communicate by email. Moreover, Mr. Gomez’s own legal assistant confirmed Mr. Gomez’s email address to Plaintiff’s counsel, Docket No. 101-1 at ¶ 21, so Plaintiff’s counsel can hardly be blamed for using it. At any rate, glaringly absent from Mr. Gomez’s contentions is any explanation why the telephonic messages that were concurrently left for him went unanswered. See id. at ¶¶ 19, 21. To the extent Mr. Gomez eschews advancements in modern communication, he undoubtedly relies heavily on the legal assistant with whom two phone messages were left seeking a returned call to engage in a meet-and-confer.
Although Mr. Gomez asserts that he "rarely" uses that email address, he responded to Plaintiff’s threat of seeking court intervention the same day that it was emailed to him. See Docket No. 101-1 at ¶¶ 25-26. Mr. Gomez also identified that email address himself on court filings. See Docket No. 107-3; see also Docket No. 107-2.
Hence, the delay at issue was caused in significant part by the conduct of Ms. Folino and Mr. Gomez in hindering Plaintiff’s counsel’s attempt to confer promptly after Ms. Folino responded to the subpoena. That Plaintiff decided to then spend approximately three months reviewing voluminous party discovery before deciding to seek enforcement of Ms. Folino’s subpoena was reasonable in the circumstances of this case. Once Plaintiff determined that Ms. Folino’s documents were still of significance, Plaintiff’s counsel promptly restarted its efforts to meet-and-confer with Mr. Gomez and eventually succeeded after threatening to file a motion if there was no response. See id. at ¶¶ 23-34.
In sum, an 11-month delay between the response to the subpoena and the filing of the instant motion is on its face cause for concern, but that delay is not unreasonable given the specific circumstances of this case as described above. This factor militates in favor of finding that the motion is timely.
(5) Whether dispositive motions have been scheduled or filed.
The deadline for filing dispositive motions has not expired in this case and, instead, remains set for a date several months away. See Docket No. 81 (setting deadline for dispositive motions for January 24, 2020). This factor militates in favor of finding that the motion is timely.
(6) The age of the case.
This case was initiated roughly 19 months before the instant motion to compel was filed. Compare Docket No. 1 with Docket No. 101. Contrasted with a run-of-the-mill case filed in this courthouse, that is a fairly old case to still be in the discovery phase. Cf. Local Rule 26-1(b)(1) (establishing a presumptively reasonable discovery period of 180 days measured from the date of the first appearance by any defendant). This is not an ordinary case for this District, however, as it involves complex antitrust claims for which there is voluminous discovery. Given the nature of the claims and the discovery at issue, this factor is neutral.
(7) Any prejudice to the party from whom the discovery is sought.
Ms. Folino argues that she is prejudiced by the instant motion because it is designed only to harass her. See Docket No. 108 at 5. While this argument goes to the merits and substance of the motion to compel, Ms. Folino has not explained why the timing of the motion is prejudicial. See id. Moreover, for the reasons discussed below, the Court finds the motion to compel to be meritorious and not designed to harass Ms. Folino. This factor militates in favor of finding that the motion is timely.
(8) Disruption of the Court’s schedule.
Ms. Folino argues without specification that the instant motion has delayed the case and disrupted the Court’s schedule. See Docket No. 108 at 6. The Court disagrees. The instant motion was filed roughly five months before the current discovery cutoff, sufficient time for it to be resolved before the discovery cutoff. The dispositive motion deadline remains many months away, and trial has not been set. This factor militates in favor of finding the motion to have been filed in a timely manner.
(9) Conclusion
As the above discussion makes clear, analysis of the pertinent factors reveals something of a mixed bag. At bottom, however, Plaintiff’s motion to compel was filed nearly five months before the discovery cutoff, there was good reason for the delay, there is no showing of prejudice in the delay, and there is likely no disruption of the Court’s schedule. An 11-month delay in filing a motion to compel is certainly not ideal, but that drawback is outweighed by the other circumstances particular to this case that militate in favor of having the motion to compel found to be timely. Accordingly, Plaintiff’s motion to compel is timely and will be resolved on its merits.
III. MERITS OF MOTION TO COMPEL
Having resolved the primary dispute between the parties regarding timeliness, the Court turns to the substance of the motion to compel. The basic gist of the dispute is whether Ms. Folino conducted an adequate search for responsive documents and whether she sufficiently identified those efforts. Ms. Folino argues that she properly searched for responsive documents and provided all that she found. See Docket No. 103 at 2-6, 8-9. Plaintiff balks at both the nominal production made and the identification of the efforts to search for responsive documents. See, e.g., Docket No. 105 at 7-12. Plaintiff has the better argument.
A nonparty may be compelled to produce documents pursuant to the dictates of Rule 45 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 34(c). Compliance with a Rule 45 subpoena for the production of documents involves overlapping duties. One requirement entails the actual search for documents. A nonparty subpoena may require the production of identified categories of documents in the subpoenaed person’s "possession, custody, or control." Fed.R.Civ.P. 45(a)(1)(iii); see also In re Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). A person subpoenaed for the production of documents is under an affirmative duty to seek that information reasonably available to her. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006). This duty is discharged through the formulation and completion of a reasonable search conducted with due diligence. Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012); see also St. Jude Med. S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 639 (D. Or. 2015). "[A]n earmark of a recipient’s inadequate inquiry is the obvious absence of documents and other written materials that the recipient reasonably would be expected to have retained in the ordinary course of its business." Meeks v. Parsons, Case No. 1:03-cv-6700-LJO-GSA, 2009 WL 3003718, at *4 (E.D. Cal. Sept. 18, 2009).
The case law addressing these requirements arises most frequently in the context of a request for documents from a party made under Rule 34 of the Federal Rules of Civil Procedure. Courts routinely apply the same standards for a nonparty responding to a subpoena for documents served under Rule 45 of the Federal Rules of Civil Procedure. See Meeks, 2009 WL 3003718, at *3-4; see also St. Jude Medical, 305 F.R.D. at 639; Toranto v. Jaffurs, Case No. 16cv1709-JAH (NLS), 2018 WL 4613149, at *2-3 (S.D. Cal. Sept. 26, 2018); Sci. Games Corp. v. AGS LLC, Case No. 2:17-cv-00343-JAD-NJK, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017); Sol v. Whiting, Case No. CV-10-01061-PHX-SRB, 2014 WL 12519787, at *3 (D. Ariz. Sept. 9, 2014).
There is also a related technical requirement. When no responsive documents are found or a dispute arises out of the completeness of the production that is made, the subpoenaed person must come forward with an explanation of the search conducted "with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence." Rogers, 288 F.R.D. at 485. Information regarding the search conducted should be provided through a declaration under oath detailing the nature of the efforts to locate responsive documents. Meeks, 2009 WL 3003718, at *4. Such declaration must address the inquiry made on a request-by-request basis. A. Farber & Partners, 234 F.R.D. at 190.
In this case, Ms. Folino has not satisfied these requirements. Most obviously, the showing made to date as to the search conducted focuses almost exclusively on her business email account. See, e.g., Docket No. 103 at 3. The subpoena is not so limited, however, and its scope also covers Ms. Folino’s personal email accounts and text messages. See Docket No. 101-2 at 5, 6 (defining broadly "communications" and "documents"). With respect to these other sources of potentially responsive documents, few if any details are provided. For example, Ms. Folino asserts that she "checked for any text messages and [she] had none." Docket No. 103-2 at ¶ 6; see also Docket No. 101-1 at ¶ 33 (attesting that during the telephonic pre-filing conference, Mr. Gomez provided no detail on any search for text messages and hung up before counsel could ask about the search for personal emails). A responding person "must do more than merely assert that the search was conducted with due diligence; rather, she must briefly describe the search to allow the Court to determine whether it was reasonable." Rogers, 288 F.R.D. at 485. An appropriately detailed accounting of the search conducted is especially critical in the context of searches for electronically stored information. See Apple, Inc. v. Samsung Elecs. Co. Ltd., Case No. 12-cv-0630-LHK (PSG), 2013 WL 1942163, at *3 (N.D. Cal. May 9, 2013) (recipients of discovery requests, including nonparties, must be transparent in the manner in which they search for electronic information); see also DeGeer v. Gillis, 755 F.Supp.2d 909, 929 (N.D.Ill. 2010) (failing to promptly disclose the details of an electronic search "violated the principles of an open, transparent discovery process"). Ms. Folino’s conclusory assertions of a good faith search of her text messages fall woefully short of her obligations in responding to a subpoena for documents.
The initial search of the business email account involved only a few search terms and utilized a dramatically reduced timeframe of 2013 to 2015. See Docket No. 103 at 5. At some unspecified time, an additional search was conducted utilizing additional search terms covering the same truncated timeframe. See id. at 3-5.
Moreover, Plaintiff has identified documents obtained elsewhere that should have been included in any production from Ms. Folino arising from the search of her business email account. See Docket No. 101-1 at ¶ 27; see also Docket No. 101-26. The existence of such documents produced from other sources raises significant concern about the completeness of the search conducted with respect to Ms. Folino’s business email account.
In light of the above, the Court finds that the search conducted and the description of the search that was provided are both defective. No later than August 27, 2019, Ms. Folino must search for responsive documents in her personal email accounts, business email accounts, and text messages using at a minimum the search terms Plaintiff proposed in its letter dated February 25, 2019, and covering a time period of 2011 to the present. No later than September 4, 2019, Ms. Folino must provide a sworn declaration from a proper custodian identifying with particularity the details of each of the searches conducted. No later than September 4, 2019, Ms. Folino must also produce all non-privileged responsive documents that were located in the search. IV. CONCLUSION
For the first time in reply, Plaintiff seeks an order requiring Ms. Folino to hire a neutral third-party e-discovery vendor to conduct the search of emails and text messages. See Docket No. 105 at 15. For the first time in reply, Plaintiff also seeks an order requiring Ms. Folino to provide a declaration attesting to her preservation (or lack thereof) of responsive documents. See id. at 6. The Court declines to address requests made for the first time in reply. See, e.g., Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996) (per curiam ).
For the reasons discussed above, Plaintiff’s motion to compel is hereby GRANTED.
IT IS SO ORDERED.
(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises— or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.
Fed. R. Civ. P. 45(d)(2)(B) (emphasis added). The parties do not identify— and the Court has not located— any committee note addressing the "any time" language in Rule 45(d)(2)(B)(i). It appears that this language is meant to make clear that, notwithstanding an identified timeframe for lodging objections outlined in the preceding sentence, there is no rule-mandated deadline for filing a motion to compel subpoenaed documents. Indeed, an earlier version of the rule had allowed for a motion to compel "at any time before or during the taking of the deposition. " See Kendrick, 778 F.2d at 256 (discussing 1970 version of rule and concluding that a motion to compel could be filed after the deposition notwithstanding the language of the rule) (emphasis added). The lack of a rule-mandated deadline, however, does not render courts impotent to rely on their inherent authority to impose deadlines through a scheduling order or by analyzing whether there is undue delay in filing the motion. Cf. id. (after finding earlier version of Rule 45 did not include a specific deadline for moving to compel production of subpoenaed documents, analyzing the circumstances of the case to determine whether the motion was timely).