Judge: Donald F. Gaffney, Case: "Ramirez v. Foam Concepts, Inc.", Date: 2022-12-07 Tentative Ruling
TENTATIVE RULING:
Defendants seek an order compelling Non-Party UniFoam, LLC to produce documents described in Deposition Subpoena for Production of Business Records, personally served on June 30, 2022. For the reasons set forth below, the motion is DENIED.
A party may serve a nonparty with a deposition subpoena commanding the production of business records for copying. (Code Civ. Proc. § 2020.010(a)(3)&(b), and 2020.020(b).) “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc § 2020.410 (a).)” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011.)
Code of Civil Procedure section 2025.480(a) states, in relevant part:
(a) If a deponent fails ... to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. …
…
(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.
Courts have applied the requirements of section 2025.480 to non-party deposition subpoenas for business records only. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)
The court finds that Defendants have properly served (1) the notice to consumer on Plaintiff, (2) the subpoena to UniFoam by personal service, and (3) the motion on UniFoam by personal service. The court also finds that Defendants seek Plaintiff’s employment records and Plaintiff does not object, that those records are relevant. However, the court finds the motion was not timely filed.
Section 2025.480 sets the deadline to file a motion to compel no later than “60 days after the completion of the record of the deposition.” Defendants, citing Unzipped Apparel, argue that the “completion of the record” occurs when a non-party serves objections. Because UniFoam has not served objections, they argue that the “record of the deposition” is not complete and hence the 60 days has not yet started.
However, reviewing the reasoning of Unzipped Apparel and the more recent Board of Registered Nurses, these courts emphasized a lower threshold in foreclosing on a party’s right to file a motion to compel earlier as against a non-party than a party. So, while Defendants are correct that Unzipped Apparel held that the deposition record was complete at the time that a non-party served objections, the effect and purpose of that holding was to shorten a party’s time to file a motion to compel—not extend it. Indeed, both Unzipped Apparel and Board of Registered Nurses stressed the difference of calculating the deadline between parties and non-parties. As Board of Registered Nurses explained:
The nonparty discovery statutes establish a one-step process for a nonparty responding to a business records subpoena. Upon receipt of the subpoena, a nonparty must make the production on the date and in the manner specified, unless grounds exist to object or disregard the subpoena. The nonparty's compliance with the subpoena is clear on the date specified for production. It has either produced documents as requested in the subpoena, or not. On that date, the subpoenaing party has all of the information it needs to meet and confer regarding the nonparty's compliance and, if unsatisfied, prepare a motion to compel.
This one-step process minimizes the burden on the nonparty. It may comply (or not) with the subpoena, and it can be confident that its obligations under the subpoena will be swiftly addressed and adjudicated. The one-step process also reflects the reality that the discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party.
(Board of Registered Nursing, supra, 59 Cal.App.5th at p. 1033 (emphasis added).)
However, the time for calculating the deadline for parties is different and extended:
In contrast to the nonparty discovery statutes, the party discovery statutes establish a more involved, two-step process. First, upon receipt of a request for production of documents, a party must serve a written response stating that the party will comply, that it lacks the ability to comply, or that it objects to compliance. (Code Civ. Proc., § 2031.210, subd. (a).) An opposing party unsatisfied with the party's response may file a motion to compel further responses within 45 days of service of the response. (Id., § 2031.310.) Second, on the date specified for production of documents, the party must produce documents in accordance with its statement of compliance. (Id., § 2031.280.) If the party fails to make a production in accordance with its statement of compliance, the opposing party may file another motion to compel seeking compliance. (Id., § 2031.320.) “No time limit is placed on such a motion.” (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903, 275 Cal.Rptr. 833.) We decline defendants' implicit invitation to import these concepts of party discovery into the nonparty context.
(Ibid. (emphasis added).)
The effect of these different policies is to shorten the time for which motions to compel must be filed against non-parties; instead of the production date as the “triggering” date on which the 60 days accrues (as it does with parties), the triggering date begins the moment the non-party serves objections (even if it is much earlier than the date of production) because at that time, the subpoenaing party has enough to know the non-party’s position on compliance/non-compliance. (See e.g., id. at 1034 [“Defendants served very broad subpoenas, which were met with objections from the Medical Board and Pharmacy Board. Defendants had 60 days in which to meet and confer with the state agencies and, if unsatisfied, file motions to compel. Defendants did not file their motions until six months after this deadline expired. Defendants' motions were untimely, and they should have been denied on this basis. The trial court erred by finding otherwise.”]; Unzipped, supra, 156 Cal. App. 4th at p. 134 [60 days begins to start and deposition is “complete” when non-party serves objections, not the date of production]; Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192 [even if non-party agreed to produce records and did so in partial increments, deposition record is still complete on the date that non-party served its objections, not anytime after the non-party agreed.]) The test as to what constitutes the “completion of the record of the deposition” in the non-party context appears to be the date on which the subpoenaing party first knows the non-party’s position on compliance with the subpoena. (Id.)
Based on this authority, the court finds that the motion is untimely. Here, the date of production was set for July 20, 2022. UniFoam did not produce any documents. At that time, “the subpoenaing party has all of the information it needs to meet and confer regarding the nonparty's compliance and, if unsatisfied, prepare a motion to compel.” (Board of Registered Nurses, supra, 59 Cal. App. 5th at p. 1033.) As of July 20, 2022, therefore, Defendants knew that UniFoam decided not to comply. Under the authority cited above, because Defendants knew UniFoam’s position since then, Defendants had 60 days from July 20, 2022, to meet and confer and, if unsatisfied, file a motion to compel. Sixty days from July 20, 2022, was September 19, 2022 (actually September 18, 2022, which is a Sunday, so deadline is extended to next court day.) Defendants, however, did not file this motion until September 27, 2022—after the 60 days. Courts have refused to apply concepts and deadlines related to party discovery to non-party discovery.
The court has been unable to find any legal authority that holds that where a non-party fails to respond to a subpoena by the production date, there is no deadline to file a motion to compel production and Defendants cite none. For these reasons, the motion is DENIED.
Plaintiff to give notice.