Hi, Inc. v. Zeetogroup, LLC

• Court: District Court, S.D. California
• Decided: June 20, 2023
• Docket: 3:22-cv-01440
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HI Q, INC. d/b/a HEALTH IQ, Case No.: 22-cv-1440-LL-DDL

12 Petitioner, ORDER: 13 v. (1) GRANTING MOTION TO 14 COMPEL; 15 ZEETOGROUP, LLC, (2) DENYING MOTION FOR 16 Respondent. PROTECTIVE ORDER; 17 and 18 (3) TO SHOW CAUSE WHY 19 SANCTIONS SHOULD 20 NOT BE IMPOSED 21 [Dkt. Nos. 15, 19] 22 23 Before the Court are a motion to compel by Toby Hoy (“Hoy”) and Constance 24 Kennedy (with Hoy, the “TCPA Plaintiffs”) and a motion for a protective order by 25 Carley Miller (“Miller”). Dkt. Nos. 15, 19 (collectively, the “Motions”). For the 26 reasons stated below, the Court GRANTS the motion to compel and DENIES 27 Miller’s motion for a protective order. Miller is ORDERED to appear for deposition 28 within 14 days of the date of this Order. 1 I. 2 BACKGROUND 3 TCPA Plaintiffs represent a putative class of consumers in an action currently 4 pending in the Northern District of California against Hi Q, Inc. (“Hi Q”) for alleged 5 violations of the Telephone Consumer Protection Act. See Dkt. No. 15-1 at 5. In 6 the class action, Hi Q asserts as a defense that TCPA Plaintiffs consented to be 7 contacted. See id. at 6. Zeetogroup, LLC (“Zeeto”) is not a party to the class 8 action, but allegedly collected telephone numbers from consumers and provided 9 them to Hi Q. Id. at 5-6. Miller is an employee of Zeeto. 10 In January 2022, Hoy subpoenaed Zeeto for documents and testimony in the 11 class action to obtain discovery as to whether it was disclosed to consumers that 12 Hi-Q was an affiliated partner of Zeeto’s, such that consent to be contacted by 13 Zeeto constituted consent to be contacted by Hi Q. When Zeeto refused to comply, 14 Hoy sought this Court’s assistance in enforcing the subpoena. However, upon 15 Hoy’s representation that Zeeto had agreed to produce information in satisfaction 16 of the subpoena, the Honorable Mitchell D. Dembin (the magistrate judge assigned 17 to the case) denied Hoy’s motion as moot.1 18 Zeeto did not produce the promised information, leading to Hi Q issuing its 19 own subpoena to Zeeto, which largely sought the same information as Hoy’s 20 subpoena. Hi Q later moved in this District to enforce compliance with its 21 subpoena. See Dkt. No. 1. The matter was again assigned to Judge Dembin. On 22 November 29, 2022, Judge Dembin ordered Zeeto to comply with Hi Q’s 23 subpoena, including by producing a Rule 30(b)(6) witness to testify. Dkt. No. 14. 24 Zeeto’s designee, Shayne Cardwell (“Cardwell”), appeared for deposition on 25 January 19, 2023. Dkt. No. 15-2 at 4; see also Dkt. No. 19-2. It is undisputed 26 27 1 Hoy’s motion to enforce his subpoena to Zeeto proceeded in this District under 28 1 Cardwell could not answer certain questions and identified Miller as the individual 2 at Zeeto likely to have relevant information on those issues. Following Cardwell’s 3 deposition, therefore, the parties began discussing a deposition of Miller. 4 On January 31, 2023, Anthony Paronich (“Paronich”), counsel for TCPA 5 Plaintiffs, emailed Jacob Gillick (“Gillick”), counsel for Zeeto, stating, “[W]e intend 6 to issue a deposition subpoena for Carley Miller. Are you able to accept service?” 7 Dkt. No. 15-9 at 3. Gillick confirmed three days later he would accept service. Id. 8 A little more than a week later, Paronich again emailed Gillick, asking if Miller had 9 preferred dates for her deposition or if Paronich should suggest possible dates. Id. 10 at 2. Gillick responded on February 21, 2023, stating: 11 I have spoke [sic] with my client and I think the best way to move 12 forward would be to issue your subpoena (I will accept service) with a unilaterally set date and we will likely have to discuss the topics and 13 documents requested. Once we get that taken care of, we can set a 14 date to get this done with. Please send us the subpoena and we will get going. 15 16 Id. On February 24, 2023, Paronich responded to Gillick’s email, attaching a 17 subpoena to Miller. He requested they discuss dates and stated, “We’re not 18 requesting any documents at this time because all of the documents that Ms. Miller 19 could have would be documents that we should have already received from 20 [Zeeto].” Id. at 1. 21 Attached to TCPA Plaintiffs’ motion to compel is a “Subpoena to Testify at a 22 Deposition in a Civil Action” to Miller dated March 28, 2023 and signed by Paronich 23 (the “Subpoena”). Dkt. No. 15-5 at 1-2. It commands Miller to appear for a 24 deposition by remote means on April 20, 2023 at 9:00 a.m. and refers to a 25 “Schedule A” which purportedly identifies the matters for examination, although 26 there is no Schedule A attached. Id. The Subpoena also requires Miller to bring 27 documents to the deposition, described as “All documents responsive to the 28 previously [sic] served subpoenas.” Id. 1 On April 17, 2023, Miller served a document titled “Objections to Subpoena 2 to Produce Documents, Information or Objects or to Permit Inspection of Premises 3 in a Civil Action” (the “Objections”) on TCPA Plaintiffs and Hi Q. Dkt. No. 15-6. 4 The Objections were signed by Gillick and his law firm as “attorneys for the 5 deponent.” Id. Miller objected that the Subpoena required production of 6 documents more than 100 miles from where the custodian was located, that the 7 request for “all documents responsive to previously served subpoenas” was 8 insufficiently specific and overbroad, and that the Subpoena called for the 9 production of confidential and private information “unrelated to the instant lawsuit.” 10 Id. at 2-3. She further objected: 11 The subpoena is beyond the scope of general discovery and 12 burdensome. Ms. Miller as an individual has nothing to do with the instant lawsuit or the alleged purpose of the deposition. A deposition 13 of Ms. Miller as an individual will not produce any relevant information 14 to the party’s claim or defense, nor is it proportional to the needs of the case . . . Ms. Miller should be noticed, if at all, as an employee in order 15 to ensure her deposition is proper and reasonably tailored. The burden 16 for her to prepare for a deposition which references every aspect of her life is improper, overbroad and burdensome. 17 . . . This subpoena should have been issued to the person most 18 knowledgeable regarding the limited issue the subpoenaing party 19 needs for its deposition. Instead, a subpoena has been issued to an individual who is now in danger of having to disclose her entire life for 20 no reason other than harassment. . . . Ms. Miller is not an officer of 21 the company and because the subpoena is not reasonably tailored, there is a concern over the disclosure of privileged business 22 information unrelated to the instant lawsuit or the very narrow issue in 23 dispute here. Had the subpoena been narrowly tailored to the relevant information at issue, this would not cause any problems. 24 25 Id. at 2-3. There is no other correspondence coincident with the service of the 26 Objections in the record, but the transcript of Miller’s nonappearance indicates 27 Paronich informed Gillick about his intent to “go[] on the record,” and his “position 28 that the time for objections had passed.” Dkt. No. 15-7 at 7. 1 On April 20, 2023, the date identified in the Subpoena for Miller’s deposition, 2 Paronich and Paul Rosenthal (“Rosenthal”), counsel for Hi Q, appeared via 3 videoconference for Miller’s deposition at the appointed time. Id. Neither Miller 4 nor her counsel appeared. See generally id. The court reporter recorded the 5 nonappearance and Paronich entered the Subpoena as an exhibit. Id. at 4-5. 6 Paronich also related the history of his communications with Gillick regarding the 7 Subpoena on the record. Id. at 5-8. Miller did not move for a protective order, nor 8 did she move to quash or modify the Subpoena, at any time before April 20, 2023. 9 On May 8, 2023, counsel met and conferred regarding Miller’s failure to 10 appear. Dkt. No. 15-2 at 5; Dkt. No. 15-8 at 3. In an email of the same date, 11 Paronich reiterated that TCPA Plaintiffs “have put in writing that Ms. Miller is not 12 obligated to produce any documents.” Id. Paronich advised Gillick TCPA Plaintiffs 13 would move to compel Miller’s deposition, but offered to waive costs if Miller would 14 agree to appear on a newly selected date. Id. Gillick responded the same day, 15 stating he would produce Miller pursuant to an “appropriate and limited subpoena,” 16 or alternatively for a deposition by written questions. He was otherwise unwilling 17 to “thr[o]w [Miller] at [Paronich] without the proper procedures and law being 18 followed.” Id. Rosenthal responded that the subpoenaing party is neither obligated 19 to specify topics for a deposition of an individual pursuant to Rule 30(b)(1) nor to 20 accept written discovery in lieu of live testimony, which sentiments were echoed 21 by Paronich in his response later that day. Id. at 1-2. 22 Paronich summed up the parties’ meet and confer as follows: “(a) we all 23 agree that Ms. Miller has relevant information (b) we agree that your [sic] accepted 24 her deposition subpoena with a specified date and time that you provided and (c) 25 you did not appear for that deposition because we did not limit the topics of 26 testimony, which you’ve provided no legal support [or] case law for.” Id. These 27 Motions followed. 28 / / / 1 II. 2 LEGAL STANDARDS 3 Rule 26 permits a broad scope of discovery: “Parties may obtain discovery 4 regarding any nonprivileged matter that is relevant to any party’s claim or defense 5 and proportional to the needs of the case . . ..” Fed. R. Civ. P. 26(b)(1). Documents 6 and testimony are discoverable from nonparties by means of a subpoena. Fed. R. 7 Civ. P. 45. “The scope of discovery through a subpoena under Rule 45 is the same 8 as the scope of discovery permitted under Rule 26(b).” Intermarine, LLC v. 9 Spliethoff Bevrachtingskantoor, B.V., 123 F. Supp. 3d 1215, 1217 (N.D. Cal. 2015). 10 Rules 26 and 45 both provide a mechanism for the subpoena recipient to 11 seek relief from a subpoena that is unduly burdensome or otherwise improper. 12 See Fed. R. Civ. P. 26(c)(1) (providing a person from whom discovery is sought 13 may seek an order protecting them from “annoyance, embarrassment, oppression 14 or undue burden,” which the Court should grant for good cause); Fed. R. Civ. P. 15 45(d)(3) (providing a subpoena recipient may move the court to quash or modify a 16 subpoena). Given the “liberal discovery principles” of the Federal Rules, however, 17 the burden is on the person resisting discovery to “show discovery should not be 18 allowed, and . . . of clarifying, explaining and supporting its objections.” Indep. 19 Living Ctr. of S. Cal. v. City of L.A., 296 F.R.D. 632, 634 (C.D. Cal. 2013) (citations 20 and internal quotation marks omitted). 21 III. 22 DISCUSSION2 23 As a threshold matter, the Court finds Miller’s testimony is relevant to the 24 class action. TCPA Plaintiffs relate that Zeeto’s Rule 30(b)(6) witness identified 25

26 27 2 Because the arguments in support of and opposition to both Motions largely overlap, the disposition of one motion will necessarily dispose of the other and the 28 1 Miller as having further information regarding the topics on which he had been 2 designated to testify. Dkt. No. 15-1 at 7. Miller, in turn, acknowledges her “name 3 came up” during the Rule 30(b)(6) deposition and that she has information relevant 4 to “specific issues” in the case. Dkt. No. 19-1 at 3. Attached to Miller’s motion for 5 protective order are several excerpts of the Rule 30(b)(6) deposition in which the 6 witness deferred to Miller as being more capable of answering counsel’s questions. 7 See Dkt. No. 19-2. Thus, notwithstanding Miller’s protestation that her deposition 8 “will not produce any relevant information,” Dkt. No. 20 at 3, the Court finds her 9 testimony is well within the broad scope of discovery permitted under Rule 26. 10 A. Deposition By Written Questions 11 Hoping to avoid a “scary deposition,” Miller proposes TCPA Plaintiffs “issue 12 written interrogatories” to her instead. Dkt. No. 19-1 at 4, 6. However, 13 interrogatories are not properly served on a nonparty to an action, and, as Miller 14 states, neither she nor her employer are parties to the class action. Id. at 5; see 15 also Fed. R. Civ. P. 33(a) (providing that “a party” may serve interrogatories on 16 “any other party”) (emphasis added). Although Rule 31 provides that a nonparty 17 may be deposed “by written questions,” see Fed. R. Civ. P. 31(a)(1), parties are 18 generally entitled to pursue discovery by “their choice of the discovery methods 19 authorized by the Federal Rules . . ..” U.S. E.E.O.C. v. Caesars Ent., Inc., 237 20 F.R.D. 428, 433 (D. Nev. 2006). The Court does not find Miller’s reluctance to be 21 deposed by the “Wolf of the TCPA World” (Dkt. No. 19-1 at 5) good cause to depart 22 from this principle or to require her deposition to proceed in writing. See Fed. R. 23 Civ. P. 26(c)(1)(C) (the court may “prescrib[e] a discovery method other than the 24 one selected by the party seeking discovery” only upon a showing of good cause). 25 B. Miller’s Demand to Be Deposed “As An Employee” 26 As an alternative to “written discovery,” Miller requests TCPA Plaintiffs be 27 required to reissue the Subpoena “to her as an employee of Zeeto, instead of as 28 an individual,” regarding “specific topics” of testimony. Dkt. No. 19-1 at 6. She also 1 requests her deposition be limited to two hours to avoid “a fishing expedition she 2 may not be prepared for.” Id. 3 The Court has carefully examined the text of Rule 30 and finds no support 4 for Miller’s position that she should not have to “sit[] for a deposition in her own 5 name.” Id. at 7. Miller is a natural person whose identity is known to all parties. 6 Her deposition is governed by Rule 30(b)(1), which requires only adequate notice 7 to the deponent and that the subpoena state the date, time, and place of the 8 deposition. See Fed. R. Civ. P. 30(b)(1). The Subpoena satisfies these 9 requirements. A deposition under Rule 30(b)(1) probes the witness’s personal 10 knowledge and recollection and does not require the noticing party to specify or 11 limit the subjects for examination in advance. See id. Since her testimony is not 12 binding on Zeeto, it does not matter whether Miller is “prepared” for her deposition 13 because “I don’t know” and “I don’t recall” are acceptable responses (if true). See 14 Pres. Techs. LLC v. Mindgeek USA, Inc., No. 217CV08906DOCJPR, 2020 WL 15 10965164, at *2 (C.D. Cal. Nov. 12, 2020) (distinguishing Rule 30(b)(1) from Rule 16 30(b)(6) in that a deponent may “refuse to testify on the ground of lack of personal 17 knowledge” and the testimony “will likely not bind the employer”). 18 Rule 30(b)(6), in contrast, provides a mechanism for deposing an 19 organization. The Rule requires the party noticing the deposition to describe the 20 matters upon which the organization will be asked to testify “with reasonable 21 particularity,” Fed. R. Civ. P. 30(b)(6), which obligates the responding party to 22 select and educate the witness. See Memory Integrity, LLC v. Intel Corp., 308 23 F.R.D. 656, 661 (D. Or. 2015) (explaining the noticing party’s obligation to 24 designate “the particular subject areas” for examination and the responding party’s 25 corollary obligation to “prepare [the witnesses] so that they may give complete, 26 knowledgeable and binding answers on behalf of the corporation” are necessary 27 “to allow the Rule to effectively function”) (citations omitted). “In a Rule 30(b)(6) 28 deposition, there is no distinction between the corporate representative and the 1 corporation,” and the witness’s testimony binds the company. Memory Integrity, 2 308 F.R.D. at 660 (citations and internal quotation marks omitted). In other words, 3 a Rule 30(b)(6) deposition elicits the organization’s knowledge and not that of any 4 particular person within the organization.3 Simply put, the Court has found no 5 procedure within Rule 30 by which such a deponent can be deposed “as an 6 employee” and not “as an individual.” Dkt. No. 19-1 at 6. 7 C. Miller’s Request for Safeguards 8 The Court is also not persuaded that the scope of the deposition should be 9 limited. See Fed. R. Civ. P. 26(c)(1). Miller speculates TCPA Plaintiffs will use the 10 deposition to “get[] into personal aspects of her life” or conduct a “fishing 11 expedition,” and states she is unwilling to “sit for an intimidating deposition without 12 any procedural safeguards.” Dkt. No. 19-1 at 6. The Court finds the necessary 13 safeguards are provided by, and amply described in, the Federal Rules. Rule 26 14 limits the permissible scope of the deposition testimony to information relevant to 15 the litigation. Rule 30 permits Miller’s counsel to object to improper questions, to 16 instruct Miller not to answer if necessary to guard privileged information, and to 17 move to terminate the deposition if it is conducted “in a manner that unreasonably 18 19 20 3 Miller states her testimony was “needed to complete some of the gaps left after 21 Mr. Cardwell’s deposition.” Dkt. No. 19-1 at 5. To the extent Miller’s position is that she should testify as a Rule 30(b)(6) designee for her employer, Zeeto (and it 22 is not at all clear to the Court that she does), the Court reminds Miller that TCPA 23 Plaintiffs already subpoenaed Zeeto pursuant to Rule 30(b)(6), and Zeeto was ordered to comply. Although the question of Cardwell’s preparedness is not before 24 the Court, if it became clear during the deposition he was unable to provide 25 complete and binding answers on Zeeto’s behalf, Zeeto was obligated to offer another witness who could, and was at liberty to select Miller as its witness. See 26 Fed. R. Civ. P. 30(b)(6) (stating the organization must designate “one or more” 27 witnesses to testify). But in that event, a new subpoena directed to Miller personally was unnecessary, and Miller’s insistence otherwise suggests she did 28 1 annoys, embarrasses, or oppresses the deponent . . ..” See Fed. R. Civ. P. 2 30(c)(2) and (d)(3).4 These safeguards are supplemented by the applicable state, 3 local and chambers rules regarding counsel’s conduct,5 and the protective order 4 in place in the class action, pursuant to which Miller can seek protection for any 5 sensitive information. See Dkt. No. 15-4. 6 Miller states she has “great and legitimate concern” that Paronich will exceed 7 the bounds of propriety and requests the Court implement limitations on the 8 deposition “to protect her.” Dkt. No. 19-1 at 5-6. The Court reiterates Miller is 9 already adequately protected under the Federal Rules but takes the opportunity to 10 admonish Miller and her counsel that insinuations of improper or unethical conduct 11 are not taken lightly by the undersigned. Miller has offered no basis for her “great 12 and legitimate” fear of Paronich beyond the simple fact that he is a well-known 13 TCPA litigator who “fil[es] a large volume of cases.” Id. at 5. Having reviewed the 14 record, including excerpts of Zeeto’s deposition, the Court does not share Miller’s 15 concerns. Accusations of impropriety are a serious matter and must be well 16 supported, and the Court will not tolerate further unsupported accusations. 17 D. Request for Documents 18 Finally, the Court turns to the matter of TCPA Plaintiffs’ request (or lack 19 thereof) for documents. Miller devotes most of her opposition brief to the TCPA 20 Plaintiffs’ assertedly burdensome request for “[a]ll documents responsive to the 21 previously discussed subpoenas.” Dkt. No. 20 at 2; see also Dkt. No. 15-5. 22 Despite TCPA Plaintiffs’ repeated retractions of this request, Miller states the 23

24 4 The parties are directed to follow the Chambers Rules of the District Judge 25 presiding over the class action, or the Magistrate Judge if one is assigned, 26 regarding any dispute that arises during the deposition.

27 5 See, e.g., Northern District of California Guidelines for Professional Conduct, available at https://cand.uscourts.gov/forms/guidelines-for-professional-conduct/ 28 1 “argument that no documents are at issue is false” because the Subpoena includes 2 a document request. Dkt. No. 20 at 3. 3 The Subpoena is not a model of clarity; as Miller points out, it refers to a 4 nonexistent “attached Schedule A” and demands the production of potentially a 5 large volume of documents. Dkt. No. 15-5. TCPA Plaintiffs’ motion to compel also 6 makes sporadic reference to documents. See Dkt. No. 15-1 at 12, 14. 7 Nevertheless, that TCPA Plaintiffs have abandoned any request for documents 8 from Miller is unambiguous from the record as a whole. First, TCPA Plaintiffs 9 plainly state they “do not seek any documents in connection with the deposition 10 subpoena.” Dkt. No. 15-1 at 16. Second, the only relief requested in the motion 11 to compel is an order compelling Miller to appear for deposition. See id. at 7 (“Ms. 12 Miller should be compelled to appear for the deposition she already agreed to 13 attend”); id. at 15 (“the Court should order Ms. Miller to appear for deposition”); id. 14 at 17 (same). Third, Paronich advised Gillick on multiple occasions that no 15 documents were required from Miller. Dkt. No. 15-8 at 3; Dkt. No. 15-9 at 1. Fourth, 16 Paronich confirmed on the record of Miller’s nonappearance that no documents 17 were sought from Miller because “based on our conversations with Mr. Gillick, we 18 understood that she didn’t possess any documents” which were not already in the 19 custody and control of Zeeto and subject to production pursuant to the Court’s prior 20 order. Dkt. No. 15-7 at 8. Accordingly, the Court overrules Miller’s objections to 21 the Subpoena on this basis and finds her refusal to appear at deposition based on 22 those objections was improper. 23 IV. 24 ORDER ON MOTIONS 25 For the foregoing reasons, the Court GRANTS TCPA Plaintiffs’ motion to 26 compel [Dkt. No. 15] and DENIES Miller’s motion for a protective order [Dkt. No. 27 19]. Miller is ORDERED to appear for deposition within 14 days of the date of this 28 Order, on a date and time mutually agreed to by all parties. For the avoidance of 1 doubt, Miller is not obligated to produce any documents before or at the deposition. 2 || The deposition may proceed by remote means upon the agreement of all parties. 3 V. 4 ORDER TO SHOW CAUSE 5 For the third time, this Court has been called upon to enforce Zeeto’s or its 6 ||employee’s compliance with an unobjectionable subpoena. The issues presented 7 || by the Motions were neither esoteric nor novel but were easily resolved by a plain 8 || reading of the Federal Rules of Civil Procedure. The Court finds Miller’s objections 9 ||to the Subpoena, opposition to the motion to compel, and motion for a protective 10 ||order have been so lacking in legal and factual support as to indicate bad faith. 11 Accordingly, the Court ORDERS Jacob Gillick and Carley Miller to appear in 12 || person before the undersigned on July 6, 2023 at 12:00 p.m. in Courtroom 14A 13 ||of the James M. Carter and Judith N. Keep United States Courthouse, 333 W. 14 ||Broadway, San Diego, California 92101 to show cause why they should not, 15 jointly or severally, be required to reimburse TCPA Plaintiffs for their reasonable 16 expenses in bringing the motion to compel, including their attorneys’ fees. 17 TCPA Plaintiffs’ counsel must appear at the hearing but may do so remotely. 18 || TCPA Plaintiffs’ counsel should be prepared to answer any questions regarding 19 their fees and costs as stated in the declaration of Beth Terrell and accompanying 20 |/exhibits. Dkt. No. 18. Counsel for Hi Q may appear at the hearing but is not 21 ||required to do so. If TCPA Plaintiffs’ or Hi Q’s counsel wishes to appear remotely 22 ||they must so advise the Court by not later than July 3, 2023. 23 ||IT IS SO ORDERED. 24 || Dated: June 20, 2023 nee 25 Tb Lh, 26 Hon. □□□□□□□□□□□□□□□□□□□□□ 27 United States Magistrate Judge 28