In a dispute previously reported on this blog, the Southern District of California overruled a defendant’s objections to subpoenas served on a former expert witness in defendant’s unrelated divorce case and to a bank for account information for a non-party corporate entity.
Regarding the former expert’s subpoenas, the court held that defendant waived her challenges. Plaintiff had served the subpoenas duces tecum to the defendant’s former expert witness in February 2018, with which the witness complied and produced hundreds of thousands of documents in March 2018. Defendant filed her objections in April 2018.
First, the court noted the difference under the Federal Rules between objections permitted by the non-party subject of the subpoena and motions to quash by parties who are not the subject of the subpoena. The defendant was not the subject of the subpoenas and thus could move to quash the subpoena. However, even interpreting defendant’s objections as a motion to quash, the court held they were untimely because they were filed a month after the subpoenas’ compliance date and the date on which the subject produced the documents. Additionally, the court held that even if defendant was technically able to object to the subpoenas, such objections were untimely filed after the statutory 14-day objection period.
The court next found there were no unusual circumstances or good cause to justify the untimeliness of defendant’s objections. Although defendant asserted a work product privilege regarding her former expert’s documents, that privilege was waived because the former expert was a testifying expert in her divorce case whose work is not protected by the privilege (compared to a consulting expert’s work). Defendant also failed to provide any explanation for her significant delay in filing objections.
Lastly, the court concluded that defendant lacked standing to quash a third-party subpoena for the former expert’s deposition testimony. Because it had already rejected defendant’s privilege claim, it found only the non-party witness could move to quash the subpoena prior to the deposition and defendant thus lacked standing to challenge the deposition.
Regarding the bank subpoena, the court overruled defendant’s objection to the subpoena pertaining to the non-party corporate entity’s account on relevance grounds. Although the corporate entity was an “uninvolved corporation,” newly-discovered emails indicated defendant created the corporate entity specifically to shield money from judgment creditors, making them highly relevant.
Odyssey Reinsurance Co. v. Nagby, Case No. 16-3038 (S.D. Cal. Apr. 26, 2018).
