Golden Gate Way, LLC v. Enercon Services, Inc.

• Court: District Court, N.D. California
• Decided: January 28, 2021
• Docket: 3:20-cv-03077
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GOLDEN GATE WAY, LLC, Case No. 20-cv-03077-EMC (AGT)

8 Plaintiff, ORDER DENYING REQUEST FOR 9 v. EMERGENCY DISCOVERY CONFERENCE 10 ENERCON SERVICES, INC., et al.,

Defendants. 11

12 Yesterday, defendant ERM-West Inc. emailed the undersigned’s deputy clerk to request an 13 emergency discovery conference. ERM explained that at noon, yesterday, the deadline passed for 14 a nonparty, Robert Clark-Riddell, to respond to a subpoena to produce documents. ERM insisted 15 that this missed deadline precipitated an emergency, because the company needs the documents in 16 question before next Wednesday, when it is scheduled to depose Clark-Riddell. ERM also 17 underscored that the deposition must take place before the parties’ February 17, 2021, mediation. 18 Clark-Riddell objected to ERM’s subpoena a week ago, on January 20, 2021.1 “Having 19 objected, [he] [i]s not obligated to produce the subpoenaed documents, or even to search for them, 20 until [ERM] obtain[s] an order directing compliance.” Pennwalt Corp. v. Durand-Wayland, Inc., 21 708 F.2d 492, 494 (9th Cir. 1983); see also Fed. R. Civ. P. 45(d)(2)(B)(ii). To obtain such an 22 order, ERM cannot informally appeal to the Court. The company must file a motion to compel. 23 See Fed. R. Civ. P. 45(d)(2)(B)(i). 24 ERM can’t avoid this rule by claiming that there isn’t enough time to brief a motion to 25 compel before next week’s deposition. Rule 45 doesn’t include an exigency exception. Nor 26 should one be implied. The rule protects nonparties, who reasonably rely on it in deciding how 27 1 and when to respond to subpoenas. That reliance interest must be protected by the courts. See 2 || Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980) (“While discovery is a 3 || valuable right and should not be unnecessarily restricted, the ‘necessary’ restriction may be 4 || broader when a nonparty is the target of discovery.”) (citation omitted). 5 The emergency, to the extent it is characterized as that, also appears to be one of ERM’s 6 || own making. Clark-Riddell signed his objections a week ago. If he also served them then, ERM 7 could have moved to compel compliance with the subpoena last week. The parties also have had 8 since last August to conduct discovery before the scheduled mediation. See August 27, 2020 9 Minute Order, ECF No. 45 (setting the parameters for pre-mediation discovery). With the 10 || mediation now close at hand, ERM may be under added pressure to gather relevant information. 11 But that pressure appears to have been self-induced and doesn’t justify appealing to the Court for (12 emergency relief. 5 13 If Clark-Riddell stands by his objections, ERM will need to file a motion to compel. So S 14 || that the dispute can be resolved before the scheduled mediation, the Court will consider a request 3 15 for an expedited briefing schedule. But ERM’s request for an emergency discovery conference is 16 || denied. IT IS SO ORDERED. 5 18 Dated: January 28, 2021 19 | | - 20 ALEX G. TSE 21 United States Magistrate Judge 22 23 24 25 26 27 28