Mari Ann Sartor, et al. v. County of Riverside, et al Case No. 5:22-cv-1410-JGB (SPx) United States District Court, C.D. California Filed February 15, 2024 Counsel Brett A. Greenfield, Law Group LLP, Woodland Hills, CA, Donald Norris, Donald Norris, a Law Corporation, Los Angeles, CA, Falamak Farnad Abromson, Abromson and Sedaghati Law Group, Woodland Hills, CA, for Plaintiffs. Tori Lyn Noelani Bakken, Anthony M. Sain, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA, Abigail McLaughlin, Lewis Brisbois Bisgaard and Smith LLP, Phoenix, AZ, for Defendants. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting in Part and Denying in Part Defendants' Ex Parte Application to Quash Subpoenas [49] I. INTRODUCTION *1 On February 9, 2024, defendants County of Riverside (“County”) and Robert Carrasco filed an ex parte application for an order quashing third party subpoenas issued by plaintiffs Mari Ann Sartor and Roy Eugene Jackson, or in the alternative for a protective order (“App.”). Docket no. 49. The application is supported by the declaration of Abigail J.R. McLaughlin (“McLaughlin Decl.”) and exhibits. Id. On February 12, 2024, plaintiffs filed an opposition to the ex parte application. Docket no. 50. The opposition is supported by the declaration of Brett Greenfield (“Greenfield Decl.”) and exhibits. Id. Defendants filed a reply the same day. Docket no. 51. On February 13, 2024, plaintiffs filed a supplemental declaration of Greenfield, and defendants objected to the filing. Docket nos. 52-53. The court now grants in part and denies in part defendants' ex parte application for the reasons discussed below. II. BACKGROUND This civil rights case involves a fatal officer involved shooting on July 22, 2022. Plaintiffs, individually and as successors in interest to decedent Jay J. Jackson, allege that Carrasco, a deputy sheriff employed by the County of Riverside Sheriff's Department, shot and killed unarmed decedent Jay Jackson without provocation, necessity, or justification. Complaint ¶¶ 7, 12. On December 18, 2023, plaintiffs deposed Carrasco. McLaughlin Decl. ¶ 2. During the deposition, Carrasco testified he was placed on administrative leave following the July 22, 2022 shooting, the administrative leave was switched to medical leave on a doctor's order, and he was still on leave as of the deposition date. Id., Ex. A at 11:10-17:8. Carrasco testified that he had two workers' compensation claims – one with a date of injury of July 22, 2022 (case no. ADJ16875242, the “5242 WC claim”) and another with a date of injury of January 4, 2007 through July 22, 2022 (case no. ADJ18313749, the “3749 WC claim”). Id., Ex. A at 74:22-75:22. On January 30, 2024, plaintiffs provided defendants notice that they intended to serve subpoenas on: Parker & Irwin, APC; Lerner Moore Silva Cunningham & Rubel (together with Parker & Irwin APC, the “Law Firms”); and County of Riverside, Workers Compensation Division (“County WC Division”). Id. ¶ 3, Ex. B. Plaintiffs commanded the third parties to produce by February 12, 2024 any and all documents and writings filed in the 3749 WC claim, including medical and other records as to any diagnosis, treatment, or therapy, any compensation awards, and any deposition transcripts. Id., Ex. B. Lerner Moore Silva Cunningham & Rubel appears to have received its subpoena on January 31, 2024. Id., Ex. C. The County WC Division appears to have received its subpoena on February 6, 2024. Id., Ex. E. The record does not reflect whether Parker & Irwin has received its subpoena. On February 6, 2024, defendants served plaintiffs with objections to the subpoenas. Id. ¶ 5, Ex. D. The parties communicated over e-mail on February 7, 2024, but were unable to reach an agreement. Id., Ex. F. Defendants notified plaintiffs they would file the instant ex parte application. III. DISCUSSION A. The Court Considers This Application on an Ex Parte Basis *2 “Ex parte motions are rarely justified ....” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). To justify ex parte relief, the moving party must, at a minimum, show: (1) its “cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures”; and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. at 492; see also L.R. 37-3 (“Unless the Court in its discretion otherwise allows, no discovery motions may be filed or heard on an ex parte basis absent a showing of irreparable injury or prejudice not attributable to the lack of diligence of the moving party.”). Here, defendants ask the court to grant ex parte relief in the form of an order quashing the third-party subpoenas. Defendants contend ex parte relief is warranted because, in light of when plaintiff provided notice of the subpoenas and the February 12, 2024 discovery cut-off, there was no way for this motion to be heard according to regular procedures and they would be irreparably harmed by the production of privileged materials. App. at 4-5. Defendants satisfy both prongs of the Mission Power standard. First, it appears that at least some of the subpoenaed documents may be subject to attorney-client privilege or work product protection, and also implicate privacy concerns. As such, defendants would be irreparably harmed if they had to follow regular noticed motion procedures because such motion would be untimely. Second, defendants find themselves in a scheduling crisis through no fault of their own. By the time defendants received notice of the third-party subpoenas on January 30, it was already too late to notice a hearing before the close of discovery on February 12, 2024. See docket no. 48. Discovery motions by joint stipulation need to be filed 21 days prior to a hearing date, and otherwise motions must be filed 28 days prior to a hearing date. L.R. 6-1, 37-3. Although defendants could have moved to quash sooner, the motion nevertheless would have had to be on an ex parte basis. Given these facts, the court finds deciding this matter on an ex parte basis is warranted. B. The Subpoenas Are Quashed in Part Defendants ask the court to issue an order quashing the third-party subpoenas. Defendants contend there is no evidence the subpoenas were properly served, the subpoenas do not provide a reasonable amount of time to comply, the subpoenas require disclosure of privileged information, and the subpoenas seek irrelevant information. App. at 5-14. Motions to quash subpoenas are governed by Rule 45 of the Federal Rules of Civil Procedure. Under Rule 45(d)(3), a court is required to quash or modify a subpoena if it: (1) fails to allow a reasonable time to comply; (2) requires a person to comply beyond the geographical limits specified in Rule 45(c); (3) requires disclosure of privileged or other protected matter; and (4) subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). “ ‘Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.’ ” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 973 (C.D. Cal. 2010) (quoting 9A Charles Wright & Arthur Miller, Federal Practice & Procedure, § 2459 (3d ed. 2008)); see also Robin Singh Educ. Servs., Inc. v. Cepelinski, 2021 WL 945243, at *13 (C.D. Cal. Jan. 26, 2021); Jiae Lee v. Dong Yeoun Lee, 2020 WL 7890868, at *5 (C.D. Cal. Oct. 1, 2020). *3 “Privacy and privilege are distinct concepts. Information may be private but not necessarily privileged.” Gutierrez v. Mora, 2019 WL 8953125, at *4 (C.D. Cal. Dec. 14, 2019). “Federal courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.” Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (citation omitted); see Merlo v. McDonough, 2021 WL 4434336, at *2 (C.D. Cal. Aug. 2, 2021) (even though medical records are not a legally recognized privilege, a party's privacy interest renders them “other protected matter” and affords the party standing to challenge the subpoena); but see In re Mitchell, 2019 WL 1054715, at *2 (Bankr. D. Id. Mar. 5, 2019) (because a privacy interest in medical records is not a legally recognized privilege, it does not confer standing to quash a third party subpoena). When objections to discovery are raised on privacy grounds, courts must weigh the privacy interests against the need for the information. See Kelly v. City of San Jose, 114 F.R.D. 653, 660-61 (N.D. Cal. 1987); see also Soto, 162 F.R.D. at 617. 1. The Subpoenas to the Law Firms Although it is unclear when the Law Firms were actually served or even if they were properly served, defendants have no standing to object to the subpoenas on these bases. Jiae Lee, 2020 WL 7890868, at *5 (“[O]nly the third party on which the subpoena is served has standing to object to alleged defects in the method of service and form of the subpoena”). Nor do defendants have standing to object to the subpoenas on relevance grounds. Only the subpoenaed parties have “standing to object to the requests on the grounds that they are irrelevant, vague, overbroad, duplicative, unduly burdensome, etc.” Id.; see Fauceglia v. Univ. of S. Cal., 2021 WL 6752008, at *1 (C.D. Cal. Sept. 7, 2021); Robin Singh Educ. Servs., 2021 WL 945243, at *13. Here, neither Law Firm has moved to quash the subpoenas. But defendants do have standing to move to quash the Law Firms subpoenas based on a claim of a right or privilege as to the requested documents. Plaintiffs seek from Carrasco's lawyers all documents filed in or relating to the 3749 WC claim, which presumably would include documents protected by attorney-client or work product privilege, as well as medical records. See Anderson v. Clawson, 2014 WL 3725856, at *2 (N.D. Cal. Jul. 25, 2014) (“A party enjoys privacy rights in his medical records in general.”). Plaintiffs do not acknowledge their subpoena requests encompass privileged documents, but state they are not opposed to making the productions subject to the existing protective order. Opp. at 8; see McLaughlin Decl., Ex. F. Plaintiffs contend the subpoenaed documents “go to the heart” of their case, with their theory “that Carrasco was a ticking time bomb that went off on July 22, 2022 when he shot the unarmed decedent.” Opp. at 7-8. The court finds plaintiffs' need for information outweigh defendants' privacy concerns, particularly in light of the fact that Carrasco raised his medical claims in his worker' compensation case. See Anderson, 2014 WL 3725856, at *2 (the right to privacy may be waived “if the party puts their contents at issue in a case”); see also Menefee v. Tacoma Pub. Sch. Dist. No. 10, 2018 WL 2095858 (W.D. Wash. May 7, 2018) (plaintiff waived her psychotherapist-patient privilege when she filed for workers' compensation). Although Carrasco testified he did not think he had any psychological symptoms prior to July 22, 2022 (McLaughlin Decl., Ex. A at 83:11-24), he later testified that he experienced anxiety, depression, violent nightmares, and racing thoughts prior to the July 22, 2022 shooting and his workers' compensation lawyer wanted him evaluated for cumulative and continuous trauma. See Greenfeld Decl., Ex. 2 at 86:10-88:20; 135:2-17. *4 As for defendants' privilege concerns, those are legitimate and not directly addressed by the protective order. As such, defendants' application is granted to the extent that the Law Firms are ordered to redact material from their production that is protected by the attorney-client privilege or attorney work product doctrine. The court otherwise declines to quash the subpoenas issued to the Law Firms. The existing protective order in the case (docket no. 28) sufficiently addresses defendants' privacy concerns. 2. The Subpoena to County Workers Compensation Division In contrast to the Law Firms subpoenas, defendants have standing to move to quash the subpoena issued to County WC Division on grounds other than privilege. As defendants note, County WC Division is a subsidiary of defendant County. Notwithstanding the question of whether plaintiffs improperly served County WC Division directly rather than County, the subpoena will be quashed on the ground that the subpoena failed to provide a reasonable time to comply. County WC Division received the subpoena on February 6, 2024. McLaughlin Decl. ¶ 6, Ex. E; see Fed. R. Civ. P. 45(d)(3)(A)(i). Although Rule 45(d)(3)(A)(i) does not specify what constitutes a “reasonable time,” courts normally require at least ten days. See Arminak v. Arminak & Assocs., LLC, 2017 WL 10403032, at *3 (C.D. Cal. May 23, 2017); Gordon v. Sonar Cap. Mgmt. LLC, 2015 WL 1227848, at *2 (N.D. Cal. Mar. 15, 2015) (“courts generally have found that fewer than ten days is not reasonable”). Here, County WC Division had only six days to comply, which was plainly not reasonable. See, e.g., Whole Woman's Health v. Paxton, 2017 WL 4855392, at *3 (D. Haw. Oct. 26, 2017) (six days was unreasonable time to comply with subpoena); In re Stratosphere Corp. Secs. Litig., 183 F.R.D. 684, 687 (D. Nev. 1999) (holding that six days was unreasonably short). Accordingly, the court grants defendants' motion to quash the subpoena issued to County WC Division. C. Sanctions Are Not Warranted Defendants move for Rule 37(a)(5)(A) sanctions, contending plaintiffs acted without substantial justification in serving their overbroad/improper subpoenas and by refusing to withdraw them when offered nonprivileged relevant records responsive to their subpoenas.[1] App. at 15-16. Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. As explained above, defendants prevail only in part. Accordingly, the court denies an award of sanctions. IV. CONCLUSION Accordingly, IT IS HEREBY ORDERED that defendants' ex parte application for an order quashing the third party subpoenas (docket no. 49) is granted in part and denied in part as set forth above. Footnotes [1] Defendants' characterization of their offer to produce responsive documents is misleading. Defendants offered to produce a redacted version of Carrasco's deposition in the 5242 WC Claim. See McLaughlin Decl., Ex. D at 5; App. at 13. But plaintiffs seek documents related to the 3749 WC Claim. See McLaughlin Decl, Ex. B.