Judge: Frank M. Tavelman, Case: 23BBCV00051, Date: 2023-08-18 Tentative Ruling

Case Number: 23BBCV00051    Hearing Date: August 18, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

ALLEGATIONS: 

On January 9, 2023, Alan and Steven Spiegel (“Plaintiffs”) brought this action for defamation against an unknown party operating under the online moniker “Cardporn”. Plaintiffs run a sports trading card business and allege that Instagram Cardporn has repeatedly defamed Plaintiffs online. Specifically, Plaintiffs allege Cardporn has made false accusations that Plaintiffs’ Upper Deck Lebron James rookie card is fake.

On February 7, 2023, this Court granted Plaintiffs’ ex parte application for leave to serve a deposition subpoena on nonparty Meta Platforms, Inc., the owner and operator of Instagram. Plaintiffs subpoena sought the identification of the person behind the Cardporn account.

On March 20, 2023, Meta objected to the subpoena served upon them, asserting various objections of privacy, trade secrets, and inability to identify the user for lack of specificity. (Sherman Decl. ¶ 5.)  Counsel for the parties thereafter conducted various meet and confer efforts in an attempt to resolve the dispute prior to this motion.  During the meet and confer, the parties refined the subpoena’s terms. (Id. ¶¶ 4-8.) On April 10, 2023, Meta produced responsive documents, which Plaintiff felt inadequate because the documents failed to include the legal name or address for Cardporn. (Id. ¶ 11.) Counsel for the parties thereafter met and conferred several times but were unable to agree on the issue of further production. (Id. 12-26.)

Plaintiffs’ arguments in their motion are primarily that Meta has misrepresented their possession of identifying information for Cardporn. Plaintiffs claim that because the Instagram account is verified, this information must be in Meta’s possession.

For reasons that will follow, the Court DENIES Plaintiffs’ motion.

HISTORY: 

On July 12, 2023, Plaintiffs filed their motion. On August 8, 2023, Meta filed its opposition. Reply was filed August 11, 2023.

ANALYSIS: 

I.                    LEGAL STANDARD 

To mandate a nonparty’s attendance and testimony at a deposition or document production, the party seeking discovery must serve that deponent a deposition subpoena, pursuant CCP § 2020.010, et seq. (CCP §§ 2020.010(b), 2025.280(b)); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP §§ 2020.010, et seq., and is primarily carried out by way of subpoena].)

If a nonparty deponent fails to produce any document, the party seeking discovery may move the court for an order compelling that production. (CCP § 2025.480(a).) If the court determines the production sought is subject to discovery, it shall order that the production be made on the resumption of the deposition. (CCP § 2025.480(i).)

Regarding a motion to compel compliance with a subpoena, CCP § 1987.2(b)(1) provides that the court “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

II.                 MERITS

Good Cause

While a showing of good cause is required on motions to compel further production from party deponents, as per C.C.P. § 2025.450(b)(1), the same language is not present in statutes regarding motions to compel compliance of nonparties. (See C.C.P. §§ 1987.1 & 2025.480) However, courts generally consider a showing of good cause a requirement on motions to compel compliance with a subpoena for production. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) Courts generally require this showing “[S]ince both sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation.” (Id.) Accordingly, in order to succeed on their motion to compel compliance with its deposition subpoena, Plaintiffs must make a showing of good cause for further production.

In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” 

Plaintiffs claim the legal name and address of the operator of the “Cardporn” account are directly relevant to their litigation. Meta argues Plaintiffs have not shown good cause because their arguments are mere generalities and unsupported allegations. Meta also argues they have not shown good cause because Meta has already complied with the subpoena in providing the users email and IP addresses. The Court believes that Meta’s arguments does not adequately address the standard for a showing of good cause. In determining a showing of good cause, the Court is primarily concerned with whether the information Plaintiffs seek is relevant to their pending litigation. The bar for determining good cause is not a high one as the scope of discoverable material is broadly defined by the Civil Discovery Act.

Here, the Court finds Plaintiffs have made a sufficient showing as to good cause to compel production. However, this is not the only burden Plaintiffs bear in bringing their motion.

CCP § 2031.310(a)(2)

Where partial compliance is claimed and the producing party claims they have no further documents, a movant must show that the responding party’s representation is inadequate, incomplete, or evasive. (CCP § 2031.310(a)(2).)

“A representation of inability to comply ... shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (CCP § 2031.230.)

The Court cannot make a determination of whether Meta’s statement of inability to comply fully meets these requirements, as neither Plaintiffs nor Meta have attached their statement of inability to comply to any of the motion documents. Meta provides a “Certificate of Authenticity” as per Evidence Code § 1561, which states “A diligent search for reasonably accessible and responsive records for the above-referenced Instagram account revealed the records attached hereto and previously produced on April 20, 2023. No other reasonably accessible and responsive information or records were found for the above referenced Instagram account. (Alvarez-Reyes Decl., Exh. K.)

To some extent Meta has provided the further information required in communications with Plaintiff’s counsel. Meta has expressed to Plaintiff’s counsel that it cannot produce the photo identification Plaintiff requests because Meta simply does not have any. (Alvarez-Reyes Decl. ¶ 16.) Meta states that it only retains photo identifications used to verify accounts for a limited time, and because the Cardporn account was verified in 2021 Meta no longer has the photo identification. (Id.) Meta further submits that it has never informed Plaintiff’s counsel that such information existed in the first place. (Id.)

In satisfaction of its burden, Plaintiffs advance the declaration of co-plaintiff Steven Spiegel. Speigel states that he has conducted extensive research on the Instagram verification process. (Spiegel Decl. ¶ 4.) Spiegel states that in order to obtain verified status on Instagram, one has to provide Meta with their address and full legal name. (Id. ¶ 6.) Spiegel suggests that his knowledge of the requirements comes from Instagram’s own explanations. (Id. ¶ 5.) As evidence of his research, Spiegel offers up several website screenshots. (Id. Exhs. 22, 23, 24.) These exhibits appear to be articles produced by blog.inzpire.me, yrcharisma.com, and a blog post on a site named Tailwind, respectively. Exhibits 23 and 24 specifically mention that Instagram verification process asks for your name and a photo ID.

The Court notes that the Meta does not appear to contest the accuracy of this information, nor has any declaration been provided from Meta that the user’s legal name and address are not within their records or that they have a policy not to retain such information.  However, the Plaintiff curiously does not include the requirements from the Meta or Instagram website rather than a third-party’s reading of the website.   As such, as presented to the Court, the Court finds Plaintiff’s showing insufficient to invalidate Meta’s statement of inability to comply. Plaintiff’s screenshots from sites which are not Instagram and his personal conjecture that he is familiar with the process do not serve to invalidate Meta’s statement. Meta is stating under penalty of perjury that it does not have further responsive documents. However, the information provided by Plaintiff does call into question the accuracy or completeness of Meta’s certification.

The Court acknowledges that the identification of a person alleged to have wrongfully posted defamatory information online can be challenging.  Assuming the attached articles concerning verification are accurate, then Meta needs to explain via a declaration either: (1) that their policy is not to retain the name and address or other contact information concerning a verified account or (2) that their policy does require they retain this information, but after a diligent search they are unable to locate it and why.   As for the Plaintiff, they should provide the court with any publicly available information concerning the verification process from the Meta or Instagram website and not from third party articles.  The matter will be put over for further consideration.

Requests not Covered by Subpoena

Plaintiffs also asks the Court to issue an order compelling the following:

That Meta be compelled to explain its efforts to search for and locate the name and address information for the anonymous poster “Cardporn’s” verified account.

That Meta be compelled to disclose its policies and procedures for maintaining name and address data for Instagram verified accounts, including specific details as to where such information is stored and if and when it [sic]

The Court notes the second request appears incomplete, though it appears to ask the Court to compel Meta to reveal its data retention practices for verified accounts and when it disposes of that information.

The Court finds neither of these requests are encompassed by the categories specified in Plaintiffs’ deposition subpoena, which are limited to the identification of the Cardporn account. The Court granted Plaintiffs’ application for leave to serve this deposition subpoena based on Plaintiffs’ representations at the February 7, 2023 ex parte hearing. Plaintiffs now ask the Court, with no briefing, to compel the production of information which vastly exceeds the scope of Plaintiffs’ original request. Plaintiffs have provided no justification for their contention that Meta is misrepresenting their data retention practices. The Court denies these requests.

Sanctions

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response, 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. (C.C.P. § 2033.290(d).)

Here, the Court finds Plaintiffs lacked substantial justification for the filing of this motion. Plaintiffs lacked a basis to believe that Meta possesses further responsive information, or that they are entitled to detailed explanations of Meta’s data retention practices. Meta submits no information upon which the Court can base a calculation of sanctions to compensate them for defense of this motion. Given that the matter is being continued for supplemental briefing, the determination is also continued.

III.              CONCLUSION

Plaintiffs’ motion is CONTINUED to September 29, 2023 at 9:00 a.m. 

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Alan and Steven Spiegel’s Motion to Compel Compliance came on regularly for hearing on August 18, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL COMPLAINCE WITH DEPOSITION SUBPOENA IS CONTINUED TO SEPTEMBER 29, 2023 AT 9:00 A.M.

MOTION FOR SANCTIONS IS CONTINUED TO SEPTEMBER 29, 2023 AT 9:00 A.M. 

PLAINTIFF TO GIVE NOTICE UNLESS ALL PARTIES WAIVED NOTICE.

IT IS SO ORDERED. 

DATE:  August 18, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles