VALCOR ENGINEERING CORP. v. PARKER HANNIFIN CORP Case No. 8:16-cv-00909-JVS-KESx United States District Court, C.D. California Filed July 11, 2018 Counsel Alexander P. Swanson, Dhananjay S. Manthripragada, Patrick Ward Dennis, Perlette Michele Jura, Thomas Frasca Cochrane, Gibson Dunn and Crutcher LLP, Los Angeles, CA, Jared Scott Greenberg, Gibson Dunn and Crutcher LLP, Denver, CO, Jeffrey H. Reeves, Kevin Neal Royer, Michael Ethan Bareket, Scott K. Behrendt, Seth M. Goldstein, Theodora Oringher PC, Costa Mesa, CA, for Valcor Engineering Corp. Lauren E. Grochow, Nicholas Joseph Schuchert, Peter N. Villar, Paul L. Gale, Troutman Sanders LLP, Irvine, CA, for Parker Hannifin Corp. Scott, Karen E., United States Magistrate Judge Order Granting Parker's Motion to Compel (Dkt. 333) and Taking July 31st Hearing Off Calendar I. BACKGROUND A. Case Management Deadlines. *1 On April 6, 2018, the Court entered an Order for Jury Trial, which set a trial date and certain case management deadlines. (Dkt. 271.) That order provided in relevant part: 4. Discovery Cut-Off: The Court has established a cut-off date for discovery in this action. All discovery is to be completed on, or prior to, the cut-off date. Accordingly, the following discovery schedule shall apply to this case: A. Depositions: All depositions shall be scheduled to commence at least five (5) working days prior to the discovery cut-off date. ... C. Production of Documents, etc.: All requests for production, etc., shall be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off date except in extraordinary circumstances. (Dkt. 271 at 2-3.) On April 11, 2018, the Court entered an Order Granting Stipulation Setting Remaining Case Management Deadlines (Dkt. 274), which set the following deadlines related to discovery: Non-Expert Discovery Cut-Off Other Than Depositions Opening Expert Witness Disclosure Non-Expert Discovery Cut-off Rebuttal Expert Witness Disclosure Last Day to File/Serve Motions (Other Than Motions in Limine) Expert Discovery Cut-off 7/20/2018 9/17/18 9/25/18 10/8/18 10/22/18 10/29/18 B. The Subpoenas at Issue. 1. The Pall Subpoena. On June 6, 2018, Valcor issued a subpoena to non-party Pall. (Dkt. 334-1 at 2 [Grochow Decl. ¶ 3].) Valcor states that the subpoena directed Pall to produce documents by June 27, 2018. (Dkt. 334 [Joint Stipulation or “JS”] at 4, 8.[1]) Neither party has provided the Court with a copy of the Pall subpoena.[2] Neither party states whether Pall has complied with the subpoena. 2. The Honeywell and Boeing Subpoenas. On June 8, 2018, Valcor issued subpoenas to non-parties Honeywell and Boeing. (Dkt. 334-1 at 2 [Grochow Decl. ¶ 4].) These subpoenas direct Honeywell and Boeing to produce documents by June 28, 2018. (Dkt. 334-2 at 36, 47 [Grochow Decl. Ex. 3].) On June 14, 2018, Honeywell served Valcor with objections to the subpoena. (See Dkt. 334-4 at 68 [Behrendt Decl. Ex. J].) Neither party has provided the Court with a copy of these objections. On June 15, 2018, Parker's counsel emailed Honeywell and Boeing, advising them that Parker believed the subpoenas were untimely under the Court's scheduling orders and that Parker intended to raise the timeliness issue with the Court. (Dkt. 334-3 at 3 [Behrendt Decl. ¶ 7]; Dkt. 334-4 at 60, 62 [Behrendt Decl. Ex. G, H].) Parker “request[ed] that [Honeywell and Boeing] withhold producing any further documents until the Court resolves the parties' disagreement.” (Id.) *2 After receiving Parker's counsel's email, Honeywell served amended objections “incorporat[ing] the position taken by Parker that the subpoena was served untimely.” (Dkt. 334-4 at 64 [Behrendt Decl. Ex. I, email from Honeywell's counsel to Valcor's counsel].) Honeywell's amended objections, served on June 21, 2018, argue that the subpoena: (1) is overly broad and unduly burdensome, (2) is vague and ambiguous, (3) seeks proprietary and confidential information, (4) would cause Honeywell to “incur significant cost and expense” because “the items requested may include large volumes of ESI and other information,” and (5) is untimely under the Court's scheduling orders. (See Dkt. 334-4 at 68 [Behrendt Decl. Ex. J].) It appears that the Valcor and Honeywell planned to meet telephonically or in person on June 25, 2018 to negotiate the scope of the subpoena. (Id. [“Honeywell may be willing to cooperate with you in identifying and producing those relevant, proportional, and non-protected documents that are responsive to the subpoena. I look forward to speaking with you on Monday, June 25.”].) Valcor does not state whether this conference occurred or whether Honeywell has agreed to produce responsive documents. Boeing's response to its subpoena is unclear. In the Joint Stipulation, Valcor states, “On June 22, Boeing sent a letter objecting to Valcor's June 8 subpoena on the grounds that 'the subpoena is untimely and therefore foreclosed by Judge Selna's pretrial scheduling order,” citing paragraph 12 of the Behrendt Declaration. (JS at 14.) Yet paragraph 12 of the Behrendt Declaration states: “I have been in communications with in-house counsel at Boeing, Michael Paisner, in an effort to secure Boeing's voluntary compliance with the Second Subpoena to Boeing. At this time, Boeing has agreed to make a partial production of the documents that were called for under the Second Subpoena to Boeing before July 20, 2018.” (Dkt. 334-3 at 4 [Behrendt Decl. ¶ 12].) It is unclear whether Boeing has ever objected to the subpoena as untimely or on any other basis. Valcor states, “To date, Boeing and Honeywell have yet to produce documents in response to the Subpoenas, jeopardizing Valcor's ability to receive any or all of their responsive documents before the discovery cut-off.” (JS at 14.) II. ANALYSIS Parker argues that these three non-party subpoenas are untimely because, under the above-quoted scheduling orders, “any written discovery,” including non-party subpoenas, had to be served 45 days prior to the July 20, 2018 cut-off for written discovery, i.e., by June 5, 2018. (JS at 3. 6-7.) Parker asserts that “Valcor's counsel has taken the untenable position [that] the parties can serve third-party subpoenas to obtain documents as late as September 25, 2018.” (JS at 7.) Parker seeks an order “compelling Valcor to comply with the court-ordered discovery deadline and withdraw the subpoenas.” (JS at 4, 7.) Valcor counters that the three subpoenas are timely because the 45-day deadline for requests for production was only “intended to apply to request for production served by the parties on each other under Rule 34.” (JS at 4; see also id. at 10 [“Those Orders are silent on the topic of third-party subpoenas, strongly suggesting that” they “dealt with party document discovery under Rule 34 rather than third-party subpoenas under Rule 45”].) Valcor contends that the purpose of the disputed deadlines “is to ensure that all relevant documents will be produced by the non-expert [written] discovery cut-off date of July 20, 2018,” and “[t]hat goal is not being frustrated in the least” by these three subpoenas.” (JS at 4.) The Court interprets the 45-day deadline cited above as applying to both requests for production served on a party and document subpoenas served on non-parties. It is unclear what else the use of the word “etc.” in that provision could mean. Moreover, the provision refers to “all” requests for production. Although there is some authority to the contrary, most courts hold that “subpoenas constitute pretrial discovery that must be served within the specified discovery period.” Medimmune, LLC v. PDL Biopharma, Inc., No. 08-cv-05590, 2010 WL 1266770 at *1, 2010 U.S. Dist. LEXIS 39410 at *5 (N.D. Cal. Apr. 1, 2010) (collecting cases); 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.”); AmTrust N. Am., Inc. v. Safebuilt Ins. Servs., No. 16-mc-0145, 2016 WL 5469257 at *3, 2016 U.S. Dist. LEXIS 134879 at *9 (E.D. Cal. Sep. 28, 2016) (granting motion to quash where “the district judge's discovery deadline as well as the magistrate judge's interpretation of that deadline, make clear that depositions may not be taken after August 8, 2016” but “instead of seeking an extension of that deadline, Safebuilt obtained and served a deposition subpoena that plainly called for compliance after the deadline”). *3 Valcor argues that Parker's interpretation of the orders is “simply impractical” because “Rule 45 makes no distinction between subpoenas seeking the production of documents and those seeking depositions,” whereas “the Orders here do make a distinction.” (JS at 11.) Valcor argues, “If the Orders were intended to set forth deadlines for service of third-party subpoenas, the Orders would have to be read to permit third-party subpoenas to be served up until the last day to serve third-party deposition subpoenas, or August 10, 2018.” (JS at 11.) The Court disagrees. The orders establish (a) a deadline of June 5, 2018 (i.e., 45 days before July 20, 2018) for serving all written discovery requests, including document subpoenas on non-parties, (b) a deadline of September 18, 2018 for commencing non-expert depositions (i.e., 5 working days before the non-expert discovery cut-off), and (c) a deadline of September 25, 2018 for completing non-expert depositions. Any subpoenas seeking to depose non-expert non-parties should be served within a “reasonable time” prior to the requested date of the deposition. Fed. R. Civ. P. 45(d)(3)(A)(i). While this interpretation may prevent a party from serving a “combined” subpoena requesting both documents from and a deposition of a non-party, see Fed. R. Civ. P. 45(a)(1)(C), this interpretation is not unreasonable. The tiered discovery deadlines in the scheduling orders—which were requested by the parties themselves— contemplate completing all non-expert document discovery by July 20, 2018 and then moving on to depositions and expert discovery with all the relevant documents in hand. Thus, the document subpoenas issued to Pall, Boeing, and Honeywell should have been served on or before June 5 and are untimely. Some courts allow a party to issue a subpoena after the discovery deadline has passed under certain equitable circumstances, such as if the existence of the discovery was unknown during the discovery period. See, e.g., Ferreira v. Penzone, No. 15-cv-01845, 2018 WL 1706212 at *2, 2018 U.S. Dist. LEXIS 59832 at *4-6 (D. Az. Apr. 9, 2018). Yet Valcor offers no excuse for the lateness of the subpoenas, other than its contrary interpretation of the scheduling orders. The intent of the two orders, when read in conjunction, is that the parties have completed document discovery by July 20, 2018 so that they can complete depositions by September 25, 2018 and expert discovery by October 29, 2018. Although Valcor asserts that the late service of the subpoenas will not frustrate this intent, it is far from clear that Valcor will be able to obtain documents responsive to the subpoenas by July 20. To the extent Valcor contends that Parker lacks standing to bring the instant motion, which Valcor characterizes as a motion to quash the subpoenas rather than a motion to compel (JS at 12-13), the Court finds this issue immaterial. Regardless of how the motion is characterized, the Court has an interest in enforcing its scheduling orders and managing its docket. See generally Johnson v. Mammoth Recreations, 975 F.2d 604, 610 (9th Cir. 1992) (“A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril. ... Disregard of the [scheduling] order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier.”) (citation and quotation marks omitted). Case management is of particular concern in this case, which was filed more than two years ago and in which the discovery deadlines have been extended multiple times. *4 To the extent Valcor argues that this motion would be better decided by the District Judge who entered the scheduling orders in question (JS at 12), nothing in this order precludes Valcor from appealing this order to the District Judge or asking the District Judge to modify the relevant deadlines. IT IS THEREFORE ORDERED that Parker's motion (Dkt. 333) is GRANTED and the hearing on the motion set for July 31, 2018 is TAKEN OFF CALENDAR. Pall, Boeing, and Honeywell need not produce documents responsive to the late subpoenas. Footnotes [1] All page citations in this order refer to the pagination imposed by the Court's electronic filing system, CM/ECF. [2] Parker's supporting declaration states that it is attached as Exhibit 2, and the Boeing and Honeywell subpoenas are attached as Exhibit 3. Yet both Exhibits 2 and 3 are copies of the Boeing and Honeywell subpoenas.