Judge Elaine Lu, Case Number: 23STCV10451, Date: 2025-06-11 Tentative Ruling

This is a putative class action. Plaintiff Brittany Ramirez (“Plaintiff”) alleges that The Neiman Marcus Group LLC (“Defendant”) operates an online website that sells a variety of products that include home furnishings, beauty items, clothing, shoes, handbags, jewelry, and accessories. Plaintiff alleges that users of Defendant’s website can communicate with a chat box within the website by typing a message. While she was in her home in California, Plaintiff used this feature and, without her consent, her chat was recorded and mined for data to be shared with Defendant and other third parties, namely Twilio, in violation of the California’s Invasion of Privacy Act (“CIPA”). Plaintiff alleges two causes of action against Defendant on behalf of herself and putative class members.

On May 10, 2023, Plaintiff filed a putative class action against Defendant. On June 18, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) asserting a single putative class claim for (1) violations of the CIPA, Cal. Penal Code § 631(a).

On April 7, 2025, Plaintiff filed the instant motion to compel nonparty Twilio, Inc. (“Twilio”) to comply with two business records subpoenas. On May 22, 2025, nonparty Twilio filed an opposition which included a request for sanctions. On May 28, 2025, Defendant filed a statement in support of nonparty Twilio’s opposition. On May 28, 2025, Plaintiff filed an unredacted reply. On May 29, 2025, Plaintiff filed an opposition to nonparty Twilio’s request for sanctions. On May 29, 2025, Plaintiff filed a corrected opposition to nonparty Twilio’s request for sanctions. On May 30, 2025, Plaintiff filed a “Notice of Withdrawal” of her reply in support of her motion to compel and the supporting documents. On May 30, 2025, Plaintiff filed redacted versions of the reply and a notice of lodging unredacted reply papers.

“To enable the unauthorized eavesdropping and wiretapping, [Defendant] has embedded code belonging to Twilio that causes a chat to be sent to Twilio in real time. The interception occurs while the chat is occurring and being transmitted in real time from the instant the chat is initiated.” (FAC ¶ 14.)

As shown by Google Chrome’s “Developer Tools” feature, when the chat feature is used on Defendant’s website, the contents of said communications are sent simultaneously to Twilio. (FAC ¶¶ 15-17.) “Within the statute of limitations period and while in California, Plaintiff visited Defendant’s Website and interacted with the chat feature. Plaintiff’s communications are sent from her device to the Website chat box, and then stored, and saved on Twilio’s servers at the same time Plaintiff sends them to Defendant. Twilio, thus captured Plaintiff’s communications ‘in transit.’” (FAC ¶ 19.)

“Defendant did not inform Plaintiff, of [sic] any of the Class Members, that defendant had a third party recording her communications or was in any manner commoditizing her internet activity, recording her chat, and using her personal details to develop a profile of her internet activity, despite website users having a reasonable expectation of privacy in using seemingly harmless chat box feature.” (FAC ¶ 20.)

“Defendant did not obtain any of the Class Member’s express or implied consent to allow third parties to eavesdrop on visitor conversations, nor did Class Members know at the time of the conversations that Defendant was secretly wiretapping them and allowing third parties to eavesdrop on them.” (FAC ¶ 21.)

Plaintiff objects to portions of Exhibit H of the Declaration of Sheri Pan – i.e., the Declaration of Derek Teay. However, there is no statutory basis for evidentiary objections in a motion to compel compliance. Moreover, these objections are unnecessary because the court, when reviewing the evidence is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible. (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.) Courts are presumed to know and apply the correct statutory and case law and to be able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision-making process. (People v. Coddington (2000) 23 Cal.4th 529, 644.) Regardless, the Court rules as follows:

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (Code Civ. Proc. § 2025.010.)

Two separate sections provide a basis to compel the deposition of a nonparty witness pursuant to a subpoena. First, an order compelling the deposition may be sought under Code of Civil Procedure section 1987.1 provides that “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Id., Italics added].) Second, an order compelling the deposition may be sought pursuant to Code of Civil Procedure section 2025.480 which provides that “[i]f a deponent fails to answer any question or 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.” (Id.)

Code of Civil Procedure § 2025.480 requires the motion to be accompanied by a meet and confer declaration under Code of Civil Procedure § 2016.040. (CCP § 2025.480(b).) Code of Civil Procedure § 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) “[W]hen the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (CCP § 2025.450(b)(2).)

Plaintiff has satisfied the meet and confer requirement. (Shapiro Decl. ¶¶ 6, 8-12.)

Plaintiff seeks to compel nonparty Twilio to comply with Document Requests Nos. 1, 3-5, and 7-10 split between two business records subpoenas served on Twilio on October 22, 2024 and January 13, 2025.

On October 22, 2024, Plaintiff served the first business records subpoena on Twilio which included requests 1-7. (Shapiro Decl. ¶ 3, Exh. 1.) On November 22, 2024, Twilio served a response objecting to each request. (Shapiro Decl. ¶ 5, Exh. 3.) On January 10, 2025, Plaintiff served Twilio a meet and confer letter regarding Twilio’s responses to the first business records subpoena. (Shapiro Decl. ¶ 6, Exh. 4.)

On January 13, 2025, Plaintiff served the second business records subpoena on Twilio which included requests 8-10. (Shapiro Decl. ¶ 4, Exh. 2.) On February 3, 2025, Twilio served its response objecting to each of the requests in the second business records subpoena. (Shapiro Decl. ¶ 7, Exh. 5.) Despite further meeting and conferring, Plaintiff and Twilio did not come to agreement regarding the requests at issue. (Shapiro Decl. ¶¶ 8-12.)

All USER DATA and SERVICE DATA YOU obtained through the CHAT FEATURE on the WEBSITE from May 10, 2021 through the present.

[DEFINITIONS: “YOU” or “YOUR” shall mean Twilio and any other person or entities acting on its behalf, including, but not limited to, affiliated companies, parents, subsidiaries, and agents (excluding its counsel). The term “CHAT FEATURE” shall mean and refer to the software available on the WEBSITE that enables visitors to communicate with the WEBSITE and/or THE NEIMAN MARCUS GROUP LLC (“NEIMAN MARCUS”); the term “USER DATA” shall mean any and all identifying information of users of your website, including, but not limited to, IP address, location, email address, first name and last name, address, title, device information, contact details, username, chat history, financial information (credit card details, account details, payment information); employment details (employer, job title); geo-location data, and any other data linked to a specific user; the term “SERVICE DATA” means all electronic data, text, messages, communications, tickets, or other materials submitted to and stored by YOU for NEIMAN MARCUS and its agents in connection with the use of YOUR services relating to the CHAT FEATURE on the WEBSITE; The term “WEBSITE” shall mean the website, www.neimanmarcus.com.][1]

All COMMUNICATIONS between YOU and NEIMAN MARCUS and its agents from May 10, 2021 through the present relating to CHATS on the WEBSITE.

[DEFINITIONS: “COMMUNICATION” or “COMMUNICATIONS” shall mean any transmission of information of any sort whatsoever by one or more PERSONS to one or more PERSONS and/or between one or more PERSONS, by any means whatsoever, including but not limited to telephone conversations, letters, documents, telegrams, teletypes, telecopies, written memoranda, e-mail messages, message board postings, and face-to-face conversations; the term “PERSON” or “PERSONS” shall include a natural person, firm, association, organization, partnership, business, trust, limited liability company, corporation, or entity of any sort; “NEIMAN MARCUS” shall mean The Neiman Marcus Group LLC; the term “CHAT” shall mean and refer to conversations enabled by the CHAT FEATURE available on the WEBSITE.]

All DOCUMENTS relating to the installation of YOUR software used in connection with the CHAT FEATURE on the WEBSITE.

All DOCUMENTS showing the number of CHATS that have occurred on the WEBSITE through the CHAT FEATURE each day from May 10, 2021 through the present.

All agreements YOU entered with NEIMAN MARCUS, including signed and Docusigned versions, emails, letters, memos and texts relating to those Agreements, relating to services for the CHAT FEATURE on the WEBSITE

All CHAT USER DATA that YOU obtained through the CHAT FEATURE on the WEBSITE from May 10, 2021 through the present.

[DEFINITIONS: The term “CHAT USER DATA” shall mean any and all identifying information of users of the CHAT FEATURE on the WEBSITE, including, but not limited to, IP address, location, email address, first name and last name, address, title, device information, contact details, phone numbers, username, chat history, financial information (credit card details, account details, payment information); employment details (employer, job title), geo-location data, and any other data linked to a specific user.]

All CHAT USER DATA that YOU sent, transferred or provided to NEIMAN MARCUS and its agents from May 10, 2021 through the present.

All CHAT USER DATA that YOU stored for NEIMAN MARCUS and its agents from May 10, 2021 through the present.

In response to each request at issue, Twilio provided a substantially similar response stating that:

Twilio incorporates herein by reference its General Objections. Twilio objects to this Request because it is overly broad and unduly burdensome as it is not limited in scope, and appears to seek information on users not relevant or proportional to the underlying litigation. Twilio further objects to this Request because it is vague and ambiguous as the term “CHAT” is defined to include “conversations enabled by the CHAT FEATURE.” Twilio does not understand if the term “enabled” refers to any specific topic, and Twilio does not control what information or conversations its customers enable vs. disable through its services. Moreover, the term “number of CHATS” is vague and ambiguous because it is unclear if it refers to the number of chats with any user, or the number of chats with a specific user.

Twilio further objects to this Request as it seeks to impose an undue burden on non-party Twilio, and prematurely seeks information from Twilio before first obtaining such information from the Defendant. Defendant is a party to the Action and has independent access to all of the responsive documents and/or information that Twilio could produce. It has also received a set of duplicative requests and is preparing to produce documents and information in response. It would be improper, and duplicative, to compel Twilio to respond when an actual party to the Action can and will satisfy this Request. In particular, Twilio customers have access to their own data by way of the Twilio account console and/or Twilio’s APIs, and are best positioned to produce any responsive materials.

Twilio further objects to this Request to the extent that this request seeks protected information, including the content of its customers’ communications, which Twilio by law cannot produce in a civil litigation. See, e.g., 18 U.S.C. § 2702. Twilio also objects to this Request because it seeks information that constitutes or contains confidential and sensitive commercial information, the disclosure of which would frustrate the expectation of privacy held by Twilio or any other person. Subject to and without waiving the foregoing objections, Twilio can provide support to The Neiman Marcus Group LLC so that it can produce any relevant information or data from its Twilio account, but Twilio is not willing to produce information on its own until after Plaintiff has sought this information from The Neiman Marcus Group LLC (“Neiman Marcus”) and Neiman Marcus has met its own discovery obligations.

The Stored Communication Act Prohibits Twilio from Producing Responses to Requests 1, and 8-10

In opposition, Twilio asserts that it cannot produce documents to Requests Nos. 1 and 8-10 due to restrictions under the federal Stored Communications Act.

“[T]he federal Stored Communications Act (18 U.S.C. § 2701 et seq., hereafter SCA or Act) regulates the conduct of covered service providers, declaring that as a general matter they may not disclose stored electronic communications except under specified circumstances[.]” (Facebook, Inc. v. Superior Court (2018) 4 Cal.5th 1245, 1249.) “Since the [SCA] makes no exception for civil discovery and no repugnancy has been shown between a denial of such discovery and congressional intent or purpose, the [SCA] must be applied, in accordance with its plain terms[.]” (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1447.)

Pursuant to section 2702 of the SCA, “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service[.]” (18 U.S.C. § 2702(a)(1).) “The next two subsections of section 2702—(b) and (c)—list exceptions to the general prohibition on disclosure by a service provider set forth in subsection (a). Subsection (b) describes eight circumstances under which a provider ‘may divulge the contents of a communication.’” (Facebook, Inc., supra, 4 Cal.5th at p.1265.) For example, one such exception is the consent of the affected customer or subscriber. (18 U.S.C. § 2702(b)(2).) “[S]ubsection (c) of section 2702 describes six circumstances under which a covered provider may divulge non-content information—that is, any ‘record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications...).’” (Facebook, Inc., supra, 4 Cal.5th at p.1265.)

Here, Twilio sufficiently shows that it is an electronic communication service. The SCA defines an “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications[.]” (18 U.S.C. § 2510(15).) Thus, “websites and services that permit users to communicate directly with one another are considered [electronic communication service] providers.” (Casillas v. Cypress Insurance Company (9th Cir. 2019) 770 Fed.Appx. 329, 330.) Undoubtedly, Twilio is an electronic communication service. Plaintiff concedes as much by alleging that she used Twilio’s chat service on Defendant’s website. (FAC ¶¶ 9-22.) Moreover, Twilio’s own evidence shows that “Twilio is a communications service that helps businesses integrate messaging and other communications capabilities into their services.” (Pan Decl. ¶ 9, Exh. H [Teay Decl. ¶ 2]; see also FAC ¶ .) Further, Twilio electronically stores chat communications used on its chat service that is used on Defendant’s website. (Pan Decl. ¶ 9, Exh. H [Teay Decl. ¶¶ 4-5].) Thus, by the statute’s plain meaning, Twilio is an electronic communications service under the SCA that electronically stores the contents of communications used in its chat service.

Plaintiff does not contend that any exceptions to section 2702(a)(1) applies. Nor is it apparent that any exception applies. Rather, Plaintiff contends that the SCA is irrelevant because the requests at issue do not seek the contents of any communication and because Twilio does not provide an electronic communication service to the public. Plaintiff is mistaken.

Requests No. 1 seeks “SERVICE DATA” which is defined to include “all electronic data, text, messages, communications, tickets, or other materials submitted to and stored by” Twilio for Defendant. Thus, Request No. 1 seeks the electronic communications – including their contents – that Twilio electronically stores. Requests Nos. 8-10 seek “CHAT USER DATA” which is defined to include the identifying information of any chat users, and the users’ chat history – i.e., the stored contents of the chats for each user. Thus, Requests Nos. 1, and 8-10 each seek in part the contents of electronic communications held in electronic storage by an electronic communication service.

Relying on various federal authorities, Plaintiff contends that Twilio’s electronic communication service is not available to the public at large but rather to businesses, and therefore, the SCA does not cover Twilio. As a preliminary matter, this Court notes that “the decisions of federal district and circuit courts, although entitled to great weight, are not binding on state courts even as to issues of federal law.” (Alan v. Superior Court (2003) 111 Cal.App.4th 217, 229.) Moreover, even relying on federal authority, Twilio provides an electronic communication service to the public.

The SCA “does not define ‘public.’ The word ‘public,’ however, is unambiguous. Public means the ‘aggregate of the citizens’ or ‘everybody’ or ‘the people at large’ or ‘the community at large.’ Black's Law Dictionary 1227 (6th ed.1990). Thus, the statute covers any entity that provides electronic communication service (e.g., e-mail) to the community at large.” (Andersen Consulting LLP v. UOP (N.D. Ill. 1998) 991 F.Supp. 1041, 1042.) For example, in Andersen Consulting LLP, the district court held that an internal e-mail system was not subject to the SCA because it was not available to the public. (Ibid.) The federal cases upon which Plaintiff relies all involve private or internal chat communications. (See e.g., Andersen Consulting LLP, supra, 991 F.Supp. at p.1042; Pope v. Stanley (W.D. La., Apr. 4, 2018, No. 6:17-CV-01422) 2018 WL 1954307 [finding that government body that made email communication available to employees of a local government were not subject to § 2702].)

Here, by contrast, Twilio’s electronic communication service is not an internal communication system within a company or entity but is commercially offered to companies to use for their businesses. (Pan Decl. ¶ 9, Exh. H [Teay Decl. ¶ 2].) Twilio’s chat service that was integrated into Defendant’s website is publicly available and was used by Plaintiff – a member of the general public. Thus, because no party asserts that any exception applies to section 2702(a)(1), and it does not appear that any exception applies, Plaintiff cannot compel Twilio to produce documents in response to Requests No. 1, and 8-10 insofar as those requests seek the contents of chats.

As to the remaining requests, numbers 3-5, and 7, and the remaining portions of requests 1, 8, 9, and 10, in its opposition, Twilio contends that the Court should not compel Twilio to produce any documents because Defendant has access to all of the requested documents.

“[A]ny party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)

However, “[t]he permissible scope of discovery in general is not as broad with respect to nonparties as it is with respect to parties.” (Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 366 Fn. 6.) “[B]y engaging in litigation, the parties should be subject to the full panoply of discovery devices, while nonparty witnesses should be somewhat protected from the burdensome demands of litigation.” (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290.) Thus, “particularly when dealing with an entity which is not even a party to the litigation, the court should attempt to structure discovery in a manner which is least burdensome to such an entity.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 222.) “To meet this standard, a party seeking to compel production of records from a nonparty must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.” (Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1039.) Further, “[a]s between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty.” (Calcor Space Facility, Inc., supra, 53 Cal.App.4th at p.225 [italics added].)

In Calcor, the defendant contracted with the plaintiff for the plaintiff to manufacture gun mount systems. (Id. at p.219.) The defendant claimed the gun mounts that the plaintiff manufactured did not meet the designated specifications, refused to accept the gun mounts, and contracted with a third party to supply them. (Ibid.) The plaintiff sued the defendant on various theories and in the course of the litigation served the third party who supplied the gun mounts with a detailed business records subpoena that essentially ordered the third party “to produce everything in its possession which has anything to do with gun mounts (including the gun mount assemblies themselves).” (Id. at p.220.) The third party moved for a protective order claiming that the business records subpoena was too burdensome and overbroad for a third party. (Ibid.) The trial court disagreed and ordered the third party to comply with the subpoena. (Id. at pp.220-221.) The Court of Appeal reversed, first concluding that the plaintiff’s subpoena imposed an unreasonable burden due to the “particularly obnoxious” definition and instructions that spanned over six pages. (Id. at pp.221-223.) Second, the Court of Appeal noted that the plaintiff failed to provide any evidence showing good cause as to why each of the requests propounded on the third party were relevant. (Id. at pp.223-224.) Finally, the Court of Appeal concluded that “[a]s between parties to litigation and nonparties, the burden of discovery should be placed on the latter only if the former do not possess the material sought to be discovered. An exception to this may exist where a showing is made the material obtained from the party is unreliable and may be subject to impeachment by material in possession of the nonparty.” (Id. at p.225.) In Calcor, the plaintiff failed to demonstrate why it could not obtain the needed materials from the defendant or why such material might be unreliable. (Ibid.)

Thus, under Calcor, a party seeking to compel a third party to comply with a business records subpoena must provide evidence showing good cause for each of the requests at issue and show why such evidence cannot be obtained from a party to the action or why the party’s evidence may be unreliable. Plaintiff contends that the Court should not follow the holdings in Calcor because “Twilio does not contend that the entirety of the materials sought by the Subpoenas are irrelevant. Second, in Calcor, the plaintiff had not alleged that third party Calcor had conspired or agreed with the defendant to violate its contractual or statutory rights.” (Reply at p.13:5-8.)

Neither distinction is relevant. First, the third party in Calcor did not contend that the “entirety of the materials sought by the Subpoenas [were] irrelevant.” (Reply at p.13:5-6.) Rather, the third party argued most of the requests were irrelevant. (Calcor Space Facility, Inc., supra, 53 Cal.App.4th at p.221.) In any event, the Court of Appeal did not find that the requests were irrelevant but rather that no evidence was submitted to justify the requests. (Id. at p.224.)

As to Plaintiff’s second contention, Plaintiff fails to cite any authority indicating that just because a third party is allegedly implicated in the underlying wrongful conduct, the reasoning of Calcor does not apply. Nor is there any reason not to apply Calcor in such a situation. Though Plaintiff has alleged that Twilio is involved in the underlying conduct, (FAC ¶¶ 9-22), Plaintiff has not filed suit against Twilio. Thus, Twilio as a nonparty cannot engage in the full mechanisms of the court – such as moving for summary judgment, filing its own discovery requests, etc. It would not be in the interest of justice to allow Plaintiff to claim Twilio as a party for purposes of this motion but deny Twilio the abilities of a party to engage in the instant action. Thus, Calcor applies to the instant action.

Here, Twilio has provided a declaration under oath attesting that all the documents that Plaintiff seeks in the two separate business records subpoenas are equally available to Defendant. (Pan Decl. ¶ 9, Exh. H [Teay Decl. ¶ 5 [“As a customer, Neiman Marcus has full access to all data it stores with Twilio, including any and all responsive data requested by the subpoenas issued to Twilio on October 22, 2024 and January 13, 2025. Neiman Marcus can retrieve and download all such data itself, including via the account console on Twilio’s website and/or Twilio’s APIs.”]]; Pan Decl. ¶ 9, Exh. H [Teay Decl. ¶ 6 [“All responsive data that is available to Twilio concerning Neiman Marcus’s use of Twilio is available to Neiman Marcus. Beyond what Neiman Marcus can access, Twilio does not store additional responsive data concerning Neiman Marcus’s use of Twilio.”]].)

In response, Plaintiff attempts to refute Twilio’s evidence by pointing to the deposition of Defendant’s PMQ. In particular, Plaintiff contends in reply that Defendant’s “PMQ, William Vuillemot, testified that Twilio generated non-chat data from the chat widget operating on the Website to which Twilio may currently have access but to which Defendant may not have access. Shapiro Reply Decl. Ex. 2 (Dep. Trans. of Defendant’s PMQ), at 84:24-85:2; 85:20-21; 86:21-87:10; 87:23-88:24; 89:1-91:16.” (Plaintiff’s Reply, pp. 6-7 [bold and italics in original].)

Notably, the only evidence that Plaintiff cites to dispute Twilio’s evidence of Defendant’s access to all the responsive documents consists exclusively of excerpts of Defendant’s person most qualified deposition. (Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo.].) However, with two isolated exceptions discussed below, none of the excerpts that Plaintiff cites from Defendant’s PMQ deposition support Plaintiff’s contention that Defendant lacks access to the documents requested in the disputed categories of the two subpoenas issued to Twilio. Plaintiff has failed to attach page 84 of the PMQ deposition. Lines 1 and 2 of Page 85 merely cite to an unspecified exhibit 4. (Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at p.85:1-2].) On page 85 at lines 20-21, there is merely a question posed asking whether Defendant’s PMQ can see a Master Sales Agreement between Twilio and another company. (Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at p.85:20-21].) Pages 86 through 88 appear to reflect merely that Defendant’s PMQ is reviewing portions of the sales agreement between Twilio and Defendant and whether Defendant communicated with Twilio in October 2019. (Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at pp.86-88].)

The only excerpt Plaintiff cites that is arguably relevant is on pages 89 to 91 of the PMQ deposition when Defendant’s PMQ speculates that he is not sure that Defendant might not have access to some of the information within the Twilio platform on Defendant’s website. (Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at pp.89:1-91:16].) Plaintiff’s reliance on this excerpt of the PMQ deposition is unavailing. First, the PMQ made clear throughout almost the entire excerpt that Plaintiff has cited that the PMQ was merely speculating:

(Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at p.89:5-13 [italics added].)

(Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at pp.89:22-90:7] [italics added].)

(Shapiro Reply Decl. ¶ 9, Exh. 2 [Vuillemot May 6, 2025 Depo. at p.90:12-25] [italics added].)

Because the PMQ made clear that he was speculating, and there were proper objections on this ground, none of this testimony is reliable. This excerpt does not, as Plaintiff contends, demonstrate that Defendant lacks access to any of the documents that Plaintiff now seeks from non-party Twilio.

As to User Data, which is requested in Requests 8, 9, and 10, the PMQ deposition actually reinforces Twilio’s declaration that Defendant has access to the User Data records that Plaintiff is now seeking from non-Party Twilio. For example, Defendant’s PMQ testified as follows:

To the extent that Defendant’s PMQ testified that he was “not sure . . . not all of the items listed here were items that [Defendant] accessed and processed,” it was incumbent on Plaintiff to ask follow up questions to clarify what categories of information Twilio had that Defendant could not or did not access and store itself. Plaintiff did not do so. Accordingly, Plaintiff has failed to demonstrate which, if any, types of information within Plaintiff’s definition of “User Data” for purposes of Requests 8-10 are available only to Twilio and not to Defendant. Accordingly, Plaintiff’s motion to compel Twilio’s compliance with Requests 8-10 is DENIED.

Moreover, Defendant most certainly has access to the user data Twilio sent to Defendant, (Request No. 9), and the chat user data Twilio stored for Defendant, (Request No. 10). Plaintiff has not shown that Defendant’s materials that are responsive to Requests Nos. 9 and 10 are unreliable. Thus, in addition to Plaintiff’s failure to identify what documents within Plaintiff’s definition of “User Data” for purposes of Requests 8-10 are available only to Twilio and not to Defendant, Plaintiff fails to provide any reason for the Court to compel nonparty Twilio to comply with Requests Nos. 9 and 10 when Defendant clearly has access to such documents.

Turning to the remaining requests – Requests No. 3-5, and 7 – Defendant obviously has access to communications between Twilio and Defendant, (Request No. 3), and the contract between Twilio and Defendant, (Request No. 7). Plaintiff has not shown that Defendant’s materials that are responsive to Requests No. 3 and 7 are unreliable. Thus, there is no reason to compel Twilio to comply with the subpoena as to Requests No. 3 and 7.

As to Requests Nos. 4 and 5, Twilio has failed to demonstrate sufficiently that Defendant necessarily has these documents. Notably, the deposition of Defendant’s PMQ suggests that Defendant may not have all of the documents responsive to requests 4 and 5, and the requests appear relevant. Thus, there is some basis to require Twilio to produce documents responsive to requests 4 and 5. However, Request No. 5 is overbroad as it seeks the number of chat users from May 10, 2021 through the present. The Complaint was filed on May 10, 2023. Because Plaintiff seeks statutory penalties for the CIPA violations, the statute of limitations is only one year. (CCP § 340(a).) Accordingly, Request No. 5 is hereby limited to May 10, 2022 through the present.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2025.480(j).)

Here, given the mixed result of the instant motion, Twilio’s request for sanctions is DENIED.

Based on the forgoing, Plaintiff Brittney Ramirez’s motion to compel nonparty Twilio, Inc’s compliance with two business records subpoenas is GRANTED IN PART.

Twilio, Inc. is ordered to provide documents responsive to Requests No. 4 and 5 of the first business records subpoena within 30 days of notice of this order. Request No. 5 is limited as follows:

“All DOCUMENTS showing the number of CHATS that have occurred on the WEBSITE through the CHAT FEATURE each day from May 10, 2022 through the present.”

Plaintiff is ordered to download the instant signed order from the Court's website and to file proof of service of the instant order on all other parties within five (5) days.

[1] “(Plaintiff is not moving for the production of the “USER DATA” requested in this Request).” (Plaintiff’s Motion at p.8:10-11 [bold and italics in original].)

Superior Court of California

County of Los Angeles

Department 9