Judge Mark A. Young, Case 21SMCV00789 2023-01-04 Tentative Ruling

If 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 any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, 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. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

California’s standard for discovery is broad: “any party may obtain discovery regarding any matter, 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.) Courts construe the right to discovery liberally to permit discovery whenever possible. (Williams v. Superior Court (1997) 3 Cal.5th 531, 541.) One of the purposes of the discovery is “to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)

Defendant Ann Lawrence Athey request for judicial notice is GRANTED.

Defendant Joel Michael Athey and Holmes, Talor Cowan & Jones LLP’s request for judicial notice is GRANTED.

Defendants dispute that email service was valid. Defendants present no Texas or California law that would invalidate the established service agreement between Orbital and Plaintiff. They argue that Texas law requires personal service of subpoenas as to third parties. However, Texas Rules of Civ. Proc., Rule 21a, provides that email service is generally appropriate as a manner of service. Moreover, Defendants’ citable Texas authority does not compel a different result. “According to the explicit terms of [Rule 205.1], a party may obtain discovery from a non-party ‘only’ by court order or by serving a subpoena.” (In re Berry, (Tex. App. 2019) 578 S.W.3d 173, 179-80.) Berry rejected a contention that the rules allow for substituted service of a subpoena on a non-party witness, but did not hold that personal service was required. In fact, the appellant noted that some rules mandate personal service of process, but others do not. For instance, Rules 10 and 106(a) which expressly mandate personal service of process by requiring service “in person,” whereas Rule 176.5 does not, and instead allows service by “delivering a copy to the witness.” Notably, Rule 21a does not generally allow for substitute service. (But see Matter of Marriage of Pratz, (Tax. App. Dec. 21, 2021) 2021 WL 6061779, at *1 [holding, without discussion that Tex. R. Civ. P. 176.5(a) requires personal service].)

Defendants move to quash Militello’s August 31, 2022 deposition subpoena for business records (the “Subpoena”) on a court-appointed third-party neutral, Orbital Data Consulting Group, LLC (“Orbital”). The Subpoena seeks two categories of documents:

1) “all Google Chat (commonly referred to as “G-Chat”) communications sent to or received by any account ending in @crcdistro.com from September 1, 2020 to March 24, 2021”; and

2) “all DOCUMENTS documenting, referring to, or evidencing the deletion of any Google Chats from any account ending in @crcdistro.com from September 1, 2020 to the present.”

Defendants move to quash the subpoena because the documents include materials necessarily protected by the Spousal Privilege. “If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the . . . marital or domestic partnership . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.” (Evid. Code, § 917(a); see Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1619 [party claiming the privilege generally has the burden to show that the communication sought to be suppressed falls within the terms of the claimed privilege].) In addition, “the presiding officer may not require disclosure of information claimed to be privileged under this division ...” (Evid. Code, § 915(a).)

Evidence Code section 980 provides a spouse with a privilege to refuse to disclose communications made in confidence between spouses during the marriage. (Evid. Code, § 980.) The rule’s purpose is to encourage and protect confidences between husband and wife. (Evid. Code, § 970, People v. Johnson (1991) 233 Cal.App.3d 425, 437-38.)

Defendants argue that this Court’s December 17, 2021, Order demonstrates that Militello obtained privileged G-Chat messages. In its analysis, the Court addressed whether certain G-Chats between Ann Lawrence Athey and her husband Joel Athey are protected under the marital privilege. They claim that the order concludes that 1) the G-Chats are privileged pursuant to the marital/spousal privilege, and 2) the G-Chats are not subject to the crime-fraud exception under Evidence Code section 981.

The Court’s prior ruling on the disqualification motion does not control the ruling as to this motion to quash. The Court’s holding was more limited than Defendants assert in their motion. The Court found that the Atheys provided evidence that the presumption of the marital privilege applied, and the burden of proof therefore shifted to Militello. In turn, Militello failed to meet her burden to show that the communications were not privileged, or that she and her counsel otherwise had a right to access the communications. The Court similarly found that Militello failed to meet her burden on the crime-fraud exception because she proffered the content of the G-Chats as supporting evidence, which the Court could not consider. The Court therefore found that Militello’s counsel obtained privileged G-chat logs between the Atheys. The Court concluded that disqualification was appropriate under the circumstances.

Defendants assert that accepting Militello’s arguments here would somehow run afoul of Code of Civil Procedure section 1008. The Court notes that consideration of this argument and evidence is not somehow a reconsideration of the prior disqualification ruling under section 1008.

As to the instant motion, the Atheys do not provide any information regarding any communications that may fall into the above categories. (See Ann Lawrence Decl., ¶¶ 1-2.) The Atheys only point to the prior disqualification order. (Heller Decl., Ex. 10.) At best, the order would demonstrate that some unknown number of the G-chats responsive to this Subpoena would be privileged. Critically, the above two categories are far broader than G-Chats between just the Atheys. Certainly, the categories would include some privileged chats, as shown by the disqualification motion. This does not necessarily mean that all G-Chats received by “any account ending in @crcdistro.com” would be privileged G-Chats between the Atheys.

It should be noted that Code of Civil Procedure section 2031.240(b) requires a responding party who objects to the demand for inspection of a document based upon a claim of privilege, to identify with particularity the document and set forth clearly the extent of, and the specific ground for, the particular privilege objection, and if an objection is based on a claim that the information sought is protected work product, that claim must be expressly asserted. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292, fn. 8.) The Court cannot competently rule on this claim of privilege unless Defendants produce a privilege log that is sufficiently specific so it may determine whether a specific document is or is not privileged. (See Best Product, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189.) For this reason, the Court would require a privilege log and/or further evidence specifically justifying the claim of privilege against the Subpoena before it can grant the motion.

Furthermore, Plaintiff presents evidence that the G-Chats are not privileged because they consist of business-related communications sent over a business account (e.g. the G-Suite) that Plaintiff created, monitored, administered, and controlled. (Militello Decl., ¶ 10.) Thus, even if the Court assumes that the privilege applies to some communications based on the record of the disqualification motion, Militello successfully meets her burden on this record to show that the Atheys did not have an expectation of privacy since Militello had access to their communications sent over their business accounts controlled and monitored by Plaintiff. Thus, the current record shows that the privilege does not apply to the sought G-Chats.

Moreover, Militello’s evidence of the crime-fraud exception is unaddressed. Similarly, the Atheys assume that the analysis in the disqualification motion necessarily applies here. Of course, these are different motions, with different purposes, procedures and evidence.