Judge Thomas S. Mcconville, Case 2021-01187267 2023-08-15 Tentative Ruling

Judge: Thomas S. Mcconville, Case: 2021-01187267, Date: 2023-08-15 Tentative Ruling

Defendant 4G Wireless, Inc.’s (“defendant”) motion to compel response to deposition subpoena is DENIED. Non-party 7 Leaves Euclid, Inc. (“7 Leaves”) has produced all responsive documents in its possession or control.

California Code of Civil Procedure (“CCP”) §2020.010(a)(3) describes the discovery at issue in this matter: a subpoena for the production of business records and things (pursuant to CCP §2020.410) from a non-party. There is no dispute that defendant served a subpoena on January 6, 2023. And there is no dispute that 7 Leaves did not produce documents called for in the subpoena before defendant filed the instant motion to compel.

CCP §2025.480(a) authorizes a party seeking discovery to move for an order compelling a deponent to produce documents pursuant to a deposition subpoena. Subsection (b) dictates the timing of a motion to compel compliance with the subpoena—namely within 60 days. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 129).

7 Leaves responded to the deposition subpoena on January 26, 2023. That response indicated that there were no records responsive to certain categories, and that other documents were being withheld as “confidential business information.” (Exhibit B to moving papers.) This motion was filed March 20, 2023, within the 60-day limitation.

Based on the declaration attached to 7 Leaves Opposition, it has made a search for responsive documents, and produced those that it found. (Decl. of Trang). This is sufficient for a non-party. See Board of Registered Nursing v. Superior Court (2021) 5 Cal App. 5^th 1011, 1033 (“The distinction between parties and nonparties reflects the notion that, by engaging in litigation, the parties should be subject to the full panoply of discovery devices, while nonparty witnesses should be somewhat protected form the burdensome demands of litigation.”) (citation and internal quotations omitted)). The court denies the request that additional declarations be submitted to confirm the non-existence of records.

However, as it relates to sanctions, the court deems them appropriate against 7 Leaves. Here, defendant attempted to gain compliance before filing its motion, and provided 7 Leaves with the protective order entered in this case. Further, 7 Leaves belief that its discussions regarding a lease agreement are protected from discovery fails to persuade the court.

Sanctions are GRANTED against 7 Leaves in the amount of $1500. Sanctions shall be paid to defendant through defendant’s counsel within 30 days of this order.

Defendant shall give notice.