Mirabelli v. Olson

• Court: District Court, S.D. California
• Decided: April 3, 2025
• Docket: 3:23-cv-00768
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH MIRABELLI, an Case No.: 23-cv-00768-BEN-VET individual, and LORI ANN WEST, and 12 individual, ORDER (1) DENYING WITHOUT 13 PREJUDICE JOINT EX PARTE Plaintiffs, APPLICATION FOR AN ORDER 14 v. COMPELLING PRODUCTION AND 15 (2) OPENING FACT DISCOVERY MARK OLSON, in his official capacity as FOR LIMITED PURPOSE 16 President of the EUSD Board of

Education, et al., 17 [Doc. No. 229]

18 Defendants.

19 20 Before the Court is a Joint Ex Parte Application for an Order Compelling Production 21 of Child Poe’s Therapy Records. Doc. No. 229 (“Joint Application”). Therein, Plaintiffs 22 and Defendant Rob Bonta (“Defendant Bonta”) request that the Court order two therapists, 23 Melissa Bright and William Moran (collectively the “Therapists”), to produce therapy 24 treatment records of Child Poe, the child of Plaintiffs John and Jane Poe who are 25 proceeding pseudonymously. See generally id. On February 26, 2025, Plaintiffs agreed to 26 produce the referenced treatment records as part of a supplemental document production. 27 Id. at 2. Plaintiffs then requested the treatment records directly from the Therapists. Id. at 28 2–3. However, the Therapists refused to produce the requested records, responding that a 1 court order was required given the treatment records’ sensitive nature. Id. at 3. Thus, 2 Plaintiffs and Defendant Bonta now jointly seek a Court order, directing the Therapists to 3 produce the requested records to Plaintiffs, who in turn will produce them to Defendant 4 Bonta. Id. at 4. 5 First, the Court notes that fact discovery in this matter closed on February 14, 2025. 6 See Doc. No. 179 at 4. And it appears that neither party served the Therapists with a 7 subpoena, pursuant to Fed. R. Civ. P. 45, seeking the records at issue. Despite the absence 8 of a subpoena, Plaintiffs and Defendant Bonta request that the Court compel production of 9 records from third parties. However, a motion to compel is not the appropriate means to 10 obtain documents from a third party. “A Rule 45 subpoena is the only discovery method 11 by which information may be obtained from a third party.” Gonzalez v. Fresno Sheriff’s 12 Dep’t, No. 1:15-cv-01200-BAM (PC), 2017 U.S. Dist. LEXIS 109853, *7 (E.D. Cal. July 13 13, 2017); see also Fed. R. Civ. P. 34(c) (non-parties may be compelled to produce 14 documents by subpoena), 45 (authorizing subpoenas); Frazier v. Redding Police Dept., No. 15 CIV S-11-1351 GGH P, 2012 U.S. Dist. LEXIS 165167, at *22–24 (E.D. Cal. Nov. 19, 16 2012) (motion to compel non-party to provide documents not proper in the absence of 17 appropriate service of a non-party subpoena in accordance with Fed. R. Civ. P. 45(b)(1)). 18 Therefore, the Court cannot order the Therapists, as third parties, to produce records absent 19 a valid subpoena. Thus, the Court DENIES WITHOUT PREJUDICE the Joint 20 Application. 21 Nevertheless, considering Plaintiffs’ agreement with Defendant Bonta to produce, 22 the Court recognizes that the therapy treatment records referenced in the Joint Application 23 likely require production to satisfy Plaintiffs’ continuing obligation to supplement their 24 document production. See L.A. Terminals, Inc. v. United Nat’l Ins. Co., 340 F.R.D. 390, 25 396 (C.D. Cal. 2022) (“The duty to supplement continues even after the discovery period 26 has closed.”) (internal quotations and citations omitted). To facilitate Plaintiffs’ obligation 27 to supplement, the Court finds that good cause exists to reopen fact discovery for the limited 28 1 purpose of serving the Therapists with Rule 45 subpoenas. Accordingly, the Court 2 || ORDERS the following: 3 1. Fact discovery shall REOPEN for the limited purpose of permitting Plaintiffs 4 ||to serve Melissa Bright and William Moran with subpoenas pursuant to Fed. R. Civ. P. 45, 5 |}seecking the therapy treatment records of Child Poe that are identified in the Joint 6 || Application. The Court notes that “a subpoena duces tecum is itself a court order, and 7 ||noncompliance may warrant contempt sanctions.” See Pennwalt Corp. v. Durand- 8 || Wayland, Inc., 708 F.2d 492, 494 n.5 (9th Cir. 1983). 9 2. On or before April 7, 2025, Plaintiffs shall SERVE the aforementioned Rule 10 subpoenas on Melissa Bright and William Moran in accordance with all requirements 11 || for service under the Federal Rules. 12 3. Plaintiffs shall seek subpoena responses, including the production of the 13 ||therapy treatment records identified in the Joint Application, from Melissa Bright and 14 || William Moran by no later than April 28, 2025. 15 4. Upon receipt of any therapy treatment records from Melissa Bright and 16 |} William Moran, Plaintiffs shall PRODUCE the records to Defendant Bonta no later than 17 ||two business days after receipt of such records. 18 5. If Melissa Bright and/or William Moran fail to timely respond to the 19 || subpoenas, Plaintiffs and Defendant Bonta may FILE a joint motion to compel production 20 || by no later than April 30, 2025. 21 IT IS SO ORDERED. 22 - 23 Dated: April 3, 2025 24 Honorable Valerie E. Torres United States Magistrate Judge 25 26 27 28