M.S. et al v. Oliver Angus et al Case No. 2:23-cv-09957-MWF-MAR United States District Court, C.D. California Filed February 11, 2025 Rocconi, Margo A., United States Magistrate Judge Proceedings: (In Chambers) ORDER RE: MOTION TO QUASH, DKT. 128 I. BACKGROUND *1 Plaintiffs M.S. and I.H. and Defendant O.A. were classmates at Santa Monica High School. ECF Docket No. (“Dkt.”) 66 at 2–3. Plaintiffs allege that O.A. physically, emotionally, and sexually abused them both on and off campus. Id. at 2. They allege that the abuse that happened on school grounds should have been prevented by school personnel. Id. This suit involves two groups of Defendants: (1) O.A. and his parents (“Family Defendants”); and (2) the Santa Monica Malibu Unified School District and several school administrators (“District Defendants”). Id. Throughout the fall of 2024, the parties discussed subpoenas for Plaintiffs' sensitive records; the District Defendants agreed to allow Plaintiffs to have a “first look” where they could minimally redact the records, but the Family Defendants did not agree to the procedure. Dkt. 129-1, Declaration of Morgan Rickets (“Ricketts Decl.”) ¶ 2–4, Ex. 1. On September 26, 2024, the Family Defendants issued several subpoenas to obtain Plaintiffs' medical, psychological, and other records. Dkt. 129-2, Declaration of Alex Rodriguez (“Rodriguez Decl.”), Ex. C. On October 17, 2024, Plaintiffs filed a motion to quash the subpoenas, but later withdrew the motion so that the parties could meet and confer. Id., Ex. D; Dkts. 104, 106. Over the next several months, the parties met and conferred regarding the subpoenas. Rodriguez Decl., Exs. E–I. On December 12, 2024, the Family Defendants reissued eleven subpoenas with a compliance date of January 10, 2025 for Plaintiffs' records. Ricketts Decl. ¶¶ 3, 8–9, Exs. 4–5; Rodriguez Decl. ¶ 39, Exs. J, O, Q. Plaintiffs' counsel allege that they did not learn of the subpoenas until January 14, 2025, when one of the providers reached out to Plaintiffs' counsel to inquire if a motion to quash would be forthcoming. Ricketts Decl. ¶¶ 3–4; Rodriguez Decl. ¶ 35, Exs. R–S. Defendants' process server was unable to locate proofs of service for Plaintiffs' counsel; subsequently, Defendants' counsel instructed their process server to not forward any documents produced from the subpoenas until Plaintiff had an opportunity to seek court intervention. Id. On February 4, 2025, Plaintiffs filed the instant motion to quash, supported by the parties' Joint Stipulation. Dkts. 128, 129 (“Joint Stip.”). The Court finds these matters suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Accordingly, the hearing set for February 26, 2025 is hereby VACATED. For the reasons discussed below, the motion to quash is DENIED, but Plaintiffs' request for a protective order is GRANTED. II. GENERAL STANDARD Generally, under the Federal Rules of Civil Procedure, 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. *2 Fed. R. Civ. P. 26(b)(1). Relevancy is broadly defined to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, a court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Under Rule 26(c), the Court has “broad discretion ... to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). Rule 45 of the Federal Rules of Civil Procedure governs the issuing and service of subpoenas on non-parties. Fed. R. Civ. P. 45. If necessary to enforce that subpoena, a party may move to compel the non-party to comply in the court where the discovery is to be taken. Fed. R. Civ. P. 37(a)(1)–(2). Under Rule 45, a subpoena must be modified or quashed if it “requires disclosure of privileged or other protected matter, if no exception or waiver applies,” or if the subpoena “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii), (iv); see also Fed. R. Civ. P. 45(d)(1) (party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena”). Generally, the scope of discovery available through a Rule 45 subpoena is the same as the scope of discovery permitted under Rule 26(b). Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., No. 3:16-mc-80062-JSC, 2016 WL 3162218, at *2 (N.D. Cal. June 7, 2016) (citing Fed. R. Civ. P. 45 advisory comm. note to 1970 amendment). However, while discovery should not be unnecessarily restricted, non-party discovery is more limited to protect non-parties from harassment, inconvenience, or disclosure of confidential documents. Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980). Accordingly, “concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.” Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998). However, “third party discovery is a time-honored device to get at the truth of a claim or defense. A party in litigation is not obligated to take the word of an opponent regarding what relevant documents do or do not exist.” L.G. Philips LCD Co., Ltd v. Tatung Co., No. C 07 80073WHA, 2007 WL 869256, at *2 (N.D. Cal. Mar. 20, 2007). III. DISCUSSION A. NOTICE UNDER RULE 45(a)(4) Plaintiffs move to quash the subpoenas on the grounds that they were not properly provided with advance notice as required by Fed. R. Civ. P. 45(a)(4). Joint Stip. at 26. As an initial matter, the Court notes that, while Plaintiffs would not have standing to move to quash the subpoenas on the grounds that they were not properly served on the non-parties, Plaintiffs do have standing to move to quash on the ground that Rule 45(a)(4)'s prior notice requirement was not met. See Littlefield v. NutriBullet, L.L.C., No. CV 16-6894 MWF (SSX), 2018 WL 5264148, at *4–*5 (C.D. Cal. Jan. 22, 2018). With respect to the factual issue of whether Plaintiffs were given proper notice under Rule 45(a)(4), Defendants appear to implicitly concede that Plaintiffs were not notified until after the subpoenas were served on the non-parties. Defendants' process server was able to provide proofs of service of the subpoenas on the non-parties, but when asked about proofs of service for Plaintiffs' counsel, the process server simply confirmed that the subpoenas were mailed to Plaintiffs' counsel on January 14, 2025—over a month after the subpoenas were served, and four days after the January 10 compliance deadline. Rodriguez Decl. ¶ 37, Ex. S. Defendants do not argue, or provide any evidence that would show, that Plaintiffs' counsel was served with the subpoenas or otherwise notified of them prior to January 14. Accordingly, it is effectively undisputed that Plaintiffs' counsel was not notified of the subpoenas until after the compliance deadline had already passed. *3 However, Defendants argue that, despite any violation of Rule 45(a)(4), the subpoenas should not be quashed because Plaintiffs have not been prejudiced by any delay in notification. Defendants note that similar subpoenas had been served and withdrawn months prior, and that the parties had subsequently met and conferred several times regarding the documents sought by the subpoenas. Rodriguez Decl., ¶¶ 8–30, Exs. C–I, M–N. Importantly, Defendants instructed their process server not to forward Defendants any documents obtained from the subpoenas until Plaintiffs had an opportunity to seek court intervention. Id., Ex. S. Given that the subpoenas have been effectively paused until the Court hears and adjudicates Plaintiffs' challenges to the subpoenas, the Court tends to agree with Defendants that Plaintiffs have not been prejudiced by the delay. The Court notes that there are no allegations of bad faith or gamesmanship. The Court also notes that Defendants do not argue that any of Plaintiffs' arguments should be deemed waived as untimely. Otherwise, the Court cannot discern, and Plaintiffs have not articulated, the potential for any specific prejudice resulting from the delay in receiving notice. While some courts have insisted on strict compliance with Rule 45(a)(4), most courts “have held that the consequences of untimely notice should not be an automatic quashing of the subpoena, at least in the absence of prejudice to the opposing party.” Est. of Najera-Aguirre v. Cnty. of Riverside, No. EDCV 18-762-DMG-SPX, 2019 WL 4452975, at *3 (C.D. Cal. June 13, 2019) (quoting 9A Wright & Miller, Federal Practice and Procedure § 2454, p. 406); see also Littlefield, 2018 WL 5264148, at *4 (collecting cases). The Court finds the latter approach more practical, particularly here, where Plaintiffs advance several other arguments for why the subpoenas should be quashed. If the Court were to quash these subpoenas solely for lack of compliance with Rule 45(a)(4), Defendants would presumably reissue the subpoenas properly, and the same underlying disputes would end up back in front of the Court weeks down the line. Accordingly, because Plaintiffs have failed to demonstrate prejudice from the delay in receiving notice, the Court declines to quash the subpoenas solely for failing to comply with Rule 45(a)(4) and proceeds to address Plaintiffs' other arguments on the merits. B. PLAINTIFF'S STANDING TO CHALLENGE THE SUBPOENAS Though the Ninth Circuit has yet to explicitly define the full scope of a party's standing to challenge a non-party subpoena, courts generally find that “a party may not quash a subpoena served upon a non-party on any grounds other than privilege.” Televisa, S.A. de C.V. v. Univision Comms, Inc., 2008 WL 4951213, at *1 (C.D. Cal. Nov. 17, 2008); see also California Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Cal. 2014) (“The Ninth Circuit has yet to address the question of whether a party has standing to bring a motion to quash since usually only the subpoenaed non-party may move to quash. The general rule, however, is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought.”). To be sure, some courts have entertained a party's challenges to non-party subpoenas based on relevance or proportionality in the context of a motion for a protective order under Rule 26. See Dale Evans Parkway 2012, LLC v. Nat'l Fire & Marine Ins. Co., No. EDCV 15-979-JGB-SPX, 2016 WL 7486606, at *3 (C.D. Cal. Oct. 27, 2016) (noting that parties do not have standing to move to quash a subpoena on overbreadth or burden grounds, but that “a party may seek a protective order pursuant to Rule 26(c) regarding a subpoena issued to a non-party if it believes its own interest is jeopardized by the discovery sought from the non-party.”); Wheel Grp. Holdings, LLC v. Cub Elecparts, Inc., No. CV 17-5956-JVS-PLAX, 2018 WL 6264980 (C.D. Cal. Sept. 4, 2018) (reasoning that a Rule 45 subpoena must be quashed if it seeks irrelevant information because Rule 45 allows the same scope of discovery as Rule 26, Rule 45 requires a subpoena be quashed if it subjects a person to an undue burden, and “discovery requests seeking irrelevant information are inherently undue and burdensome”); Table de France, Inc. v. DBC Corp., No. EDCV 19-423-JGB-KKX, 2019 WL 6888043, at *4 n.2 (C.D. Cal. Aug. 1, 2019) (noting that “[c]ourts in this district are split regarding whether a party has standing to challenge a subpoena on the grounds that it is overbroad or unduly burdensome on a third party,” but declining to resolve the issue). In either case, courts typically at least require that a party has a “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); see also In re REMEC, Inc. Sec. Litig., No. CIV 04CV1948 JLS AJB, 2008 WL 2282647, at *1 (S.D. Cal. May 30, 2008) (“A party can move for a protective order in regard to a subpoena issued to a non-party if it believes its own interests are jeopardized by discovery sought from a third party and has standing under Rule 26(c) to seek a protective order regarding subpoenas issued to non-parties which seek irrelevant information.”). In other words, parties may not simply assert the non-party's interests on their behalf. *4 Here, in addition to an order quashing the subpoena under Rule 45, Plaintiffs explicitly seek a protective order under Rule 26. Joint Stip. at 31–32. Indeed, even when framed as a relevance or proportionality issue, Plaintiffs arguments all largely stem from their own privacy interest in the records sought. In essence, they argue that the subpoenas, as written, are overbroad in that they seek information that is both irrelevant to this lawsuit and that implicates their privacy rights and privacy rights of third parties. Id. at 27–37. Ultimately, given the lack of clarity on the scope of a party's standing in this context, and because Plaintiffs' arguments largely center around their own privacy interests, the Court will presume Plaintiffs have standing to make such an argument, either under Rule 45 or Rule 26. To be sure, some of Plaintiffs' arguments could be construed to assert objections on the non-parties' behalf. Plaintiffs clearly would not have standing to make such objections, and therefore the Court will not address them. C. PLAINTIFFS' CONTENTIONS As noted above, Plaintiffs argue that the subpoenas seek private medical information that is irrelevant to the allegations in the operative complaint, and that the records produced could contain the private information of third parties. See Joint Stip. at 27–37. Defendants argue that the subpoenas are narrowly tailored and relevant to the litigation given that Plaintiffs have put their medical condition at issue. Id. at 40–43. “Federal courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.” Keith H. V. Long Beach Unified School Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005) (citation omitted). The “resolution of a privacy objection ... requires a balancing of the need for the information sought against the privacy right asserted.” Id. (citation omitted). Courts often find that privacy concerns can be sufficiently mitigated by a protective order or careful redactions. See, e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003) (finding third-party privacy interests could be protected through redaction); In re Heritage Bond Litig., No. CV 02-1475-DT(RCX), 2004 WL 1970058, at *5 n.12 (C.D. Cal. July 23, 2004) (finding privacy interests were adequately protected by a protective order already in place in the litigation). The Court agrees that the subpoenas seek private information that does not appear relevant to the allegations in the operative complaint. Defendants are correct that a party can wave privacy rights with respect to medical records if they put their contents at issue. See, e.g., Doe v. City of Chula Vista, 196 F.R.D. 562, 569 (S.D. Cal. 1999). “Any waiver, however, is limited to the private information that is relevant to the lawsuit.” Anderson v. Clawson, No. C 13-0307 LHK (PR), 2014 WL 3725856, at *2 (N.D. Cal. July 25, 2014) (citations omitted) (internal quotation marks omitted). Here, Plaintiffs concede that they have waived their privacy rights as to records concerning Plaintiffs' learning disabilities, physical injuries related to O.A.'s alleged conduct, and emotional/medical distress potentially caused by O.A.'s alleged conduct, all of which are relevant to issues in the complaint. Joint Stip. at 27. The Court also acknowledges that Defendants are entitled to other medical records that might show alternative causes of injuries alleged to have been caused by O.A., which includes records dating back several years before the incident. Indeed, Plaintiffs do not appear to contest the temporal scope of the subpoenas. However, the subpoenas simply seek “any and all” medical records, which is sure to encompass private records that have no bearing on the allegations in the complaint. For example, the subpoenas explicitly seek confidentiality agreements and insurance information. The subpoenas will also likely result in the production of irrelevant medical information from Plaintiffs and third parties, such as genetic information, documentation of infections/chronic diseases, imaging of unrelated injuries, Plaintiffs' social security numbers, and family medical and psychiatric history. Defendants have not explained, and the Court cannot discern, how Plaintiffs have put any of this information at issue through the allegations in the complaint, nor have Defendants explained how any of this information could even possibly lead to the discovery of information relevant to issues in dispute. *5 As noted above, Plaintiffs offered a compromise: that they have a “first look” where they would redact sensitive medical information. Notably, the District Defendants have already agreed to this procedure. The Court finds that this is a reasonable compromise, as it would likely be more efficient and result in more comprehensive production than rewriting the subpoenas to include broad subject matter limitations. Accordingly, the Court will deny Plaintiffs' request for an order quashing the subpoenas in full. However, weighing Plaintiffs' privacy interests against Defendants' need for the information sought, the Court finds that a protective order is warranted. Employing its broad discretion to craft the requisite protective order, the Court will enter an order allowing for Plaintiffs to redact the records produced by the subpoenas before the records are produced to Defendants. Plaintiffs should only redact private medical information as described in the preceding paragraphs. The Court emphasizes that Plaintiffs may not engage in broad redactions solely based on relevance; rather, Plaintiffs may only make privacy-based redactions, and may not redact information that is related to injuries alleged in the complaint or Plaintiffs' claims for damages, even if that information would be considered private.[1] To ensure that Plaintiffs' redactions are not overbroad, Plaintiffs must compile a redaction log that identifies the basis for information and give Defendants the opportunity to contest any allegedly improper redactions. See Miller v. Travel Guard Grp., Inc., No. 21-cv-09751-TLT (JCS), 2023 U.S. Dist. LEXIS 83874, at *3 (N.D. Cal. May 12, 2023) (ordering a redaction log for redacted information); Dixie v. Amarillas, No. CV 20-04287-JLS-DFM, 2022 WL 3012819, at *8 (C.D. Cal. May 11, 2022) (same); Tamburri v. SunTrust Mortg. Inc., No. C 11-02899 JST DMR, 2013 WL 942499, at *3 (N.D. Cal. Mar. 11, 2013) (ordering the subpoenaing party to send them to the objecting party without reviewing them to allow the objecting party to make reasonable redactions, and to return redacted versions within two days).[2] The Court admonishes the parties to meet and confer in good faith about the redactions, and warns that sanctions in the form of attorneys' fees may be imposed should the issue come back before the Court.[3] IV. CONCLUSION AND ORDER *6 Based on the foregoing reasons, IT IS THEREFORE ORDERED that Plaintiffs' motion to quash is DENIED, but their request for a protective order is GRANTED, as described above. Plaintiffs should provide redacted versions of the subpoena materials to Defendants within fourteen days. IT IS SO ORDERED. Footnotes [1] The Court notes that lingering privacy concerns will be adequately mitigated by the parties' stipulated protective order. Dkt. 86; In re Heritage Bond Litigation, 2004 WL 1970058 at *5 n.12 (finding that privacy concerns can be adequately protected by a protective order). [2] Contrary to Defendants' assertion, the Court need not wholly disregard citations to unpublished cases; courts routinely considered unpublished district court cases as persuasive authority. Kobayashi v. McMullin, No. 2:19-CV-06591-SSS-MAA, 2022 WL 3538710 (C.D. Cal. Aug. 18, 2022) (noting that neither the Ninth Circuit nor the Central District's local rules prohibit citation of unreported district court opinions); C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1138 (E.D. Cal. 2009) (“Ninth Circuit Rule 36-3 does not prohibit citation to or reliance on unpublished District Court decisions, which are, like published District Court opinions, only persuasive authority.”); In re Van Wagoner Funds, Inc. Sec. Litig., 382 F. Supp. 2d 1173, 1182 (N.D. Cal. 2004) (“Ninth Circuit Rule 36-3 does not bar a district court from considering the unpublished decisions of other federal district courts; however such decisions are not binding and are at most persuasive authority.”). [3] To the extent that Defendants argue this procedure will invite further discovery disputes, the Court notes that the entire dispute might have been avoided with more carefully worded discovery requests. It is not the Court's job to rewrite Defendants' requests for them. See Finkelstein v. Guardian Life Ins. Co. of Am., No. C07-1130-CRB (BZ), 2008 WL 2095786, at *2 (N.D. Cal. May 14, 2008) (“Rule 26 does not require the Court to rewrite discovery requests for the parties.”); Kilby v. CVS Pharmacy, Inc., No. 09-cv-2051, 2017 WL 1424322, at *4 n.3 (S.D. Cal. Apr. 19, 2017) (“Particularly when a party stands on an overly broad request and does not make a reasonable attempt to narrow it or to explain the need for such a broad range of documents and/or information, the Court will not rewrite a party's discovery request to obtain the optimum result for that party. That is counsel's job.”) (internal citations and quotation marks omitted).