Aecom Energy and Construction, Inc. v. John Ripley, et al Case No. CV 17-05398-RSWL (AGRx) United States District Court, C.D. California Filed December 16, 2021 Counsel David A. Klein, Diana M. Torres, Yungmoon Chang, Kirkland and Ellis LLP, Los Angeles, CA, for Aecom Energy and Construction, Inc. John G. Jahrmarkt, Jahrmarkt and Associates, Los Angeles, CA, for Morrison Knudsen Corporation, Morrison-Knudsen Company, Inc, Morrison-Knudsen Services, Inc, Morrison-Knudsen International Inc, john jahrmarkt. Rosenberg, Alicia G., United States Magistrate Judge Proceedings: ORDER RE: (1) GARY G. TOPOLEWSKI'S NOTICE OF MOTION AND MOTION TO QUASH SUBPOENAS AND/OR FOR A PROTECTIVE ORDER BARRING ENFORCEMENT OF SUBPOENAS (Dkt. No. 373), (2) THE MORRISON KNUDSEN DEFENDANTS' NOTICE OF MOTION TO QUASH SUBPOENAS AND/OR FOR A PROTECTIVE ORDER BARRING ENFORCEMENT OF SUBPOENAS (Dkt. No. 374), (3) PLAINTIFF AECOM ENERGY & CONSTRUCTION, INC.'S NOTICE OF MOTION AND MOTION BY PLAINTIFF TO COMPEL RESPONSE TO REQUEST FOR PRODUCTION NO. 21 AND JOINT STIPULATION (Dkt. Nos. 380) *1 Defendant Gary Topolewski filed a motion to quash nine subpoenas and/or for a protective order barring enforcement of subpoenas to Adli Law Group, P.C.; AT&T; Cellco, Inc.; Century Communications, Inc.; Pacific Bell Telephone Company; Sprint PCS; Sprint Spectrum LP; Verizon Wireless Telecom, Inc.; and US Bancorp. The parties briefed the issues. (Dkt. Nos. 373, 375.) The Morrison Knudsen Defendants filed a motion to quash subpoenas and/or for a protective order barring enforcement of the same subpoenas. The parties briefed the issues. (Dkt. Nos. 374, 377.) Plaintiff filed a motion to compel responses to Document Request No. 21. The parties briefed the issues. (Dkt. Nos. 380, 381, 383.) These motions came on for hearing and were taken under submission. (Dkt. No. 387.) Before the motions were reassigned to this court, the previous magistrate judge had issued an order dated June 27, 2018. (Order, Dkt. No. 154.) That order followed a previous order dated April 18, 2018 and incorporated its prior description of the claims. (Id. at 1, 3; Order, Dkt. No. 118.) As relevant here, the June 27, 2018 Order granted Plaintiff's motion to compel further responses to Interrogatory No. 15 and Document Request Nos. 19-20, and denied Plaintiff's motion to compel as to Interrogatory No. 5 and Document Request No. 21. (Dkt. No. 154 at 2-3.) Specifically, the order required Defendants to produce all monthly, quarterly, and annual income statements, balance sheets, and other financial statements of any Corporate Defendant, including any underlying documents used to prepare the summary income statement produced, for the period beginning four years before the filing of the complaint on July 21, 2017. (Id. at 12-13.) The order also required Defendants to produce their corporate tax returns and bank statements for the period beginning four years before the filing of the complaint on July 21, 2017. Such documents would be designated Attorneys Eyes Only under the protective order. (Id. at 14-16.) This court likewise incorporates the prior description of the claims as well as the legal standards and reasoning regarding the rulings on Document Request Nos. 19-20. (Id. at 11-17; Dkt. No. 118.) At oral argument, counsel confirmed that the documents ordered to be produced by Defendants in the June 27, 2018 Order were not in fact produced. The scope of discovery under Rule 45 “is the same as that applicable to Rule 34 and the other discovery rules.” Advisory Comm. Notes to 1970 Amendment. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “District courts have broad discretion in determining relevancy for discovery purposes.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005). “[I]nformation that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable.” Advisory Committee Notes, 2000 Amendments, to Fed. R. Civ. P. 26(b)(1). Subpoena to US Bancorp *2 The subpoena to US Bancorp seeks applications and bank statements for bank accounts opened, held, owned, or operated at any time by a specified Morrison-Knudsen entity or named individual. (Dkt. No. 373-11.) To the extent the subpoena seeks bank statements for a Morrison-Knudsen entity, the subpoena seeks information that the court already ordered Defendants to produce. To the extent the subpoena seeks applications to open or maintain such accounts, the subpoena seeks information that will disclose witnesses with knowledge of the bank accounts. Such discovery is proportional to the needs of this case. Fed. R. Civ. P. 26(b)(1). The court, however, grants without prejudice the motions for a protective order and excludes from production applications and bank statements for personal bank accounts owned by the individuals listed in the subpoena. At the discovery conference, the court explored whether the Mr. Topolewski's bank statements could be redacted to disclose only fund transfers between him and a Morrison-Knudsen entity. Such fund transfers would, however, also show up in the entity's bank statements, which would not require the same type of redaction of personal transactions in an individual's bank statement. There is no indication in the record before the court that a customer of the Morrison Knudsen Defendants were directed to pay an account other than an account belonging to a Morrison-Knudsen entity. Subpoenas to Service Providers Plaintiff served subpoenas upon seven service providers that each sought information regarding the identity, contact information, and payment method of the account holder of seven listed phone numbers. (Dkt. Nos. 373-4 through 373-10.) There appears to be no dispute that the first five phone numbers were listed on the “contact us” subpage of a website at issue, http://morrisonknudsen.com. As explained by the court on the record during the discovery conference, the subpoenas seek information that is directly relevant and proportional to the needs of this case as to the first five phone numbers. Defendant Topolewski seeks a protective order as to the last two phone numbers listed in each subpoena. He argues that one of those phone numbers is for Metal Jeans, Inc., a clothing company owned by him. The other phone number is for Topolewski America, a company formerly owned by him. He contends neither company is a defendant in this case or otherwise has anything to do with the allegations in this case. Plaintiff argues that there is evidence Metal Jeans paid the attorneys fees owed to AECOM. Even assuming Metal Jeans is paying Defendants' financial obligations in this litigation, that fact alone does not render discovery about Metal Jeans phone number proportional to the needs of this case. Similarly, Plaintiff makes no showing that a phone number at Topolewski America has any relevance to this case. (Exhs. E-F to Chang Decl.) Accordingly, Defendants' motion for protective order is granted in part and the subpoenas to the seven service providers are modified to delete the last two phone numbers. Subpoena to Adli Law Group Plaintiff was previously awarded attorneys fees. Defendants' prior counsel, the Adli Law Group, apparently paid the attorneys fees award by wire transfer. Plaintiff served a subpoena upon the Adli Law Group to determine the identity of the bank that transferred funds to the Adli Law Group from which the firm then paid the attorneys fee award. The court cannot discern any way in which the information sought would be directly relevant and proportional to the needs of this case. Defendants' motion to quash is granted. Plaintiff's Motion to Compel Re: Document Request No. 21 *3 The April 18 and June 27, 2021 Orders denied without prejudice Plaintiff's motion to compel production of Document Request No. 21. (Dkt. No. 154 at 16-17.) The reasoning in those Orders remain valid. It is still not clear how tax returns of an individual would be relevant and proportional to the issues remaining in this case. Plaintiff's motion to compel is denied without prejudice. Accordingly, IT IS ORDERED that:[1] 1. Defendants' motions to quash the subpoena to the Adli Law Group is granted. Defendants' motions to quash are otherwise denied. 2. Defendants' alternative motions for protective order are granted in part as to the subpoena to US Bancorp without prejudice. The court excludes from production the applications and bank statements for personal bank accounts owned by the individuals listed in the subpoena. 3. Defendants' alternative motions for protective order are granted in part as to the subpoenas to the service providers. The court deletes the last two phone numbers in those subpoenas. 4. Plaintiff's motion to compel production of documents responsive to Document Request No. 21 is denied without prejudice. cc: District Judge Ronald S.W. Lew Footnotes [1] The court does not address a deadline for production because the third party recipients of the subpoenas are not before the court.