Jessica Day v. Geico Casualty Company et al Case No.: MC 23-00091 FMO (RAOx) United States District Court, C.D. California Filed August 16, 2023 Counsel George Thomas Martin, III, Martin and Bontrager APC, Toluca Lake, CA, Robert L. Schug, Nichols Kaster LLP, Minneapolis, MN, for Jessica Day. Oliver, Rozella A., United States Magistrate Judge Proceedings: (In Chambers) MINUTE ORDER RE: MOTION TO QUASH [1] *1 On June 20, 2023, Movants California Department of Insurance (“CDI”) and Ken Allen, Deputy Insurance Commissioner (collectively, “Movants”) initiated this civil miscellaneous case by filing a Motion to Quash Subpoena, or in the Alternative, Motion for Protective Order (“Motion”). Dkt. No. 1. The Motion is supported by the Declaration of Jack C. Nick (“Nick Declaration”). Dkt. No. 1 at 23-60. The Motion arises out of litigation pending in the Northern District of California brought by Plaintiff Jessica Day (“Plaintiff”) against GEICO Casualty Company, GEICO Indemnity Company, and GEICO General Insurance Company (collectively, “GEICO”). See Day v. GEICO Casualty Co., 5:21-cv-02103-BLF (N.D. Cal., filed March 25, 2021) (hereinafter, the “N.D. Cal. Case”). Movants request the Court quash Plaintiff's subpoena for Mr. Allen's deposition testimony or, in the alternative, enter a protective order limiting the scope of questions to be answered by Mr. Allen. The Motion has been referred to the undersigned magistrate judge. Dkt. No. 4. The parties have timely completed their briefing. Plaintiff filed her Opposition on July 14, 2023. Dkt. No. 10 (“ Opp'n”). The Opposition is supported by a Declaration of Matthew H. Morgan (“Morgan Declaration”). Dkt. No. 10-1. Movants filed their Reply on July 21, 2023. Dkt. No. 11 (“Reply”). The Reply is supported by a Supplemental Declaration of Jack C. Nick (“Nick Supplemental Declaration”). Dkt. No. 11 at 13-24. Pursuant to a Court order requesting supplemental briefing, Plaintiff filed her Supplemental Brief on August 4, 2023, Dkt. No. 13 (“Pl. Suppl.”), and Movants filed their Supplemental Brief on August 10, 2023, Dkt. No. 14 (“Mov. Suppl.”). The Court finds the matter suitable for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons below, the Motion to Quash is GRANTED. I. BACKGROUND A. Factual Background On March 19, 2020, California Governor Gavin Newsom instituted a statewide stay-at-home order to mitigate the effects of the COVID-19 pandemic. N.D. Cal. Case, Dkt. No. 68 (“Am. Compl.”) ¶ 19. According to statistics cited by Plaintiff, between March 22 and April 25, 2020, there was a 71-77% decrease in miles traveled in California and a resulting drop by roughly half of traffic collisions. Id. ¶¶ 22-23. On April 13, 2020, the California Insurance Commissioner issued a bulletin to insurers requiring them to “make an initial premium refund for the months of March and April” in order to provide relief to affected California auto insurance policyholders. Decl. of Jack C. Nick (“Nick Decl.”) ¶ 3 & Ex. 2. Later bulletins required the premium adjustments to be extended to June 2020. Nick Decl. ¶ 3. In Spring 2020, GEICO instituted the “GEICO Giveback” program which provided policyholders with a 15% premium credit on new and renewed policies over the applicable period. Am. Compl. ¶ 28. B. Procedural Background Plaintiff filed the underlying case on March 25, 2021. N.D. Cal. Case, Dkt. No. 1. Plaintiff filed the operative complaint on February 10, 2022. N.D. Cal. Case, Dkt. No. 68. Plaintiff alleges that GEICO unjustly profited off of the COVID-19 pandemic by failing to reimburse policyholders for the excessive premiums paid to the company during the lock-down period of the pandemic. Id. ¶¶ 1-6. According to calculations by the Center for Economic Justice and the Consumer Federation of America cited by Plaintiff, at least a 30% premium refund would be required to correct the windfall to auto insurance companies for the time period from mid-March through the end of April 2020. Id. ¶ 26. Plaintiff initially brought claims for breach of contract, unjust enrichment/quasi-contract, and violation of the California Unfair Competition Law (“UCL”). Id. ¶¶ 53-77. Following orders on two motions to dismiss, the only remaining claim is Plaintiff's UCL claim. See N.D. Cal. Case, Dkt. Nos. 64, 87. On October 31, 2022, Plaintiff's motion for class certification was granted. See N.D. Cal. Case, Dkt. No. 116. The class is defined as “[a]ll California residents who purchased personal automobile, motorcycle, or RV insurance from GEICO covering any portion of the time period from March 1, 2020 to the present.” Id. at 16-17. The parties are currently conducting discovery, and the deadline for dispositive motions is September 15, 2023. N.D. Cal. Case, Dkt. No. 149. C. Events Leading to the Instant Discovery Dispute *2 On January 26, 2023, Mr. Allen, as Deputy Commissioner of CDI, sent an email to Angela Rinella, a GEICO representative. Nick Decl. ¶ 5 & Ex. 3. The email confirmed that based on data and other information submitted by GEICO, the premium previously returned under the Giveback program, and the methodology utilized by CDI to calculate whether insurers returned a sufficient amount of premium, GEICO was not required to return any additional premium to its California policyholders. Nick Decl., Ex. 3. This email followed earlier email and phone exchanges between Mr. Allen and GEICO in which Mr. Allen verbally related CDI's determination, and GEICO asked for it to be placed in writing. Nick Decl. ¶ 6. Between March 15 and May 5, 2023, CDI produced non-privileged records relating to its communications with GEICO. Morgan Decl. ¶ 4; Nick Decl. ¶ 8. Although Plaintiff's counsel reached out to CDI's in-house counsel to discuss methods by which Plaintiff could obtain information about the January 26, 2023 email, counsel came to believe that the most effective and efficient way would be through a deposition. Morgan Decl. ¶ 5. On May 19, 2023, Plaintiff issued the subpoena at issue for Mr. Allen's deposition. Nick Decl. ¶ 7 & Ex. 4. II. LEGAL STANDARD “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. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). “On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that ... the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii). Under Federal Rule of Civil Procedure 45 (“Rule 45”), a party may subpoena a non-party to attend a deposition or to produce documents. Fed. R. Civ. P. 45(a). “The same broad scope of discovery set out in Rule 26 applies to discovery that may be sought pursuant to Rule 45.” Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014) (citing AF Holdings LLC v. Does 1-1,058, 286 F.R.D. 39, 46 (D.D.C. 2012)). However, “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). “On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: ... requires disclosure of privileged or other protected matter, if no exception or waiver applies; or ... subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). “In determining whether a subpoena poses an undue burden, courts ‘weigh the burden to the subpoenaed party against the value of the information to the serving party.’ ” Amini, 300 F.R.D. at 409 (citing Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005)). Whether a subpoena imposes an undue burden is a “case specific inquiry.” Id. (citing Thayer v. Chiczewski, 257 F.R.D. 466, 469 (N.D. Ill. 2009)). Courts should consider the need of the requesting party for the information, the burden on the non-party in complying with the subpoena, the relevance of the requested information, and the breadth or specificity of the request. Id. at 410 (citing Moon, 232 F.R.D. at 637). Courts are “reluctant to require a non-party to provide discovery that can be produced by a party.” Id.; see also Mount Hope Church v. Bash Back!, 705 F.3d 418, 429 (9th Cir. 2012) (recognizing the special need to protect non-parties against the imposition of large discovery costs). III. DISCUSSION *3 As an initial observation, it appears that, practically, it would be difficult for the parties to resolve privilege issues prior to any deposition, contrary to Plaintiff's suggestion, see Opp'n at 9. Plaintiff herself is not clear as to what deposition testimony she plans to seek, making it difficult for the Court and Movants to determine whether any privileges will be at issue and whether any non-privileged testimony would be relevant. Plaintiff contends that she “does not seek disclosure of privileged or protected information ... nor disclosure of confidential research, development or commercial information.” Opp'n at 8. “Plaintiff does not intend to ask how the analysis was done.” Opp'n at 9; Morgan Decl. ¶ 8. The only intended topics are “the nature and circumstances of [Mr. Allen's] email to GEICO, and why it was sent.” Opp'n at 9. In her supplemental brief, Plaintiff repeats that she “does not intend to ask how the analysis was conducted or determination reached.” Pl. Suppl. at 4. However, Plaintiff's statements that she does not intend to ask how the CDI's analysis was conducted or determination reached appear to conflict with her later statements that she should not be barred from questioning Mr. Allen about the data or materials the CDI and/or Mr. Allen relied upon and Mr. Allen's opinion about CDI's determination and the basis for it. See id. at 4-5. Even assuming Plaintiff will refrain from stepping into any privileged areas such as how any analysis was conducted or CDI's determination was reached, Plaintiff has not shown how the testimony she seeks from Mr. Allen is relevant or proportional to the needs of the case. Movants assert that the subpoena presents an undue burden because the testimony sought is privileged or otherwise has little to no probative value. Mot. at 14. Plaintiff responds that the requested deposition testimony is relevant because GEICO intends to use the January 26, 2023 email for its defense. Opp'n at 1. Plaintiff contends that if GEICO plans to offer the email as part of its defense, “Plaintiff is entitled to explore the circumstances that gave rise to it.” Id. at 6. Plaintiff argues that “[t]he information sought is plainly relevant to Plaintiff's investigation of GEICO's defense.” Id. at 7. In her supplemental brief, Plaintiff argues that Mr. Allen's testimony “is highly relevant to establish the context for the Court, on summary judgment and at trial, about why Mr. Allen's email is not dispositive of Plaintiff's claims under California's Unfair Competition Law.” Pl. Suppl. at 1. Plaintiff contends that the most relevant question, “why did Mr. Allen choose to send this email,” is still unanswered. Id. at 2. Plaintiff intends to question Mr. Allen about his recollection of conversations leading to the email and any steps he took before sending the email. Id. Although Plaintiff repeatedly states that the deposition testimony she seeks from Mr. Allen is relevant to rebut GEICO's defense, Plaintiff does not explain how it is relevant. Similarly, while arguing that the most relevant question is why Mr. Allen sent the email, Plaintiff does not explain why the reason for Mr. Allen sending the email (other than areas of testimony that Plaintiff has promised not to probe, such as CDI's analysis) is relevant to GEICO's defense or Plaintiff's efforts to rebut that defense. Moreover, to the extent there is non-privileged relevant information that Mr. Allen could provide in a deposition, it is unclear why Plaintiff cannot seek that information through less burdensome discovery methods or from a party to the litigation. Plaintiff has already requested documents from CDI pursuant to a public records request, and Plaintiff does not argue that the production was insufficient. Plaintiff can propound discovery on GEICO for the information GEICO provided Movants and information about communications between Mr. Allen and GEICO representatives. It appears that a deposition of a GEICO representative has already taken place, and the GEICO representative testified that CDI initially gave its determination at a Zoom meeting with GEICO and then provided it in writing in the email at issue pursuant to GEICO's request. See Nick. Suppl. Decl., Ex. 6. Finally, to the extent Mr. Allen could provide any relevant information in deposition testimony that is not privileged and could not be obtained from GEICO, the Court finds that it is not proportional to the needs of the case. One consideration for determining whether discovery is proportional to the needs of the case is “the importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(1). Plaintiff has not shown in a non-conclusory manner the importance of any non-privileged and unique testimony from Mr. Allen in resolving any issues in the underlying litigation. *4 In sum, any non-privileged information that has not already been provided to Plaintiff can either be sought from GEICO or is minimally relevant and not proportional to the needs of the case. The Court finds that the deposition testimony falls outside the scope of Rule 26(b)(1). The Motion to Quash is GRANTED. IT IS SO ORDERED.