ANTHONY W. ISHII, Senior District Judge.
Currently before the Court is Peter Krasnoff's ("Krasnoff") motion to quash a subpoena issued by Defendant the City of Visalia ("City"). Krasnoff is an expert engineer retained by Plaintiff Mission Linen Supply ("Mission"). Mission has also filed objections to the City's subpoena of Krasnoff. Per the parties' request, the Court set a hearing date of October 18, 2017, to resolve Krasnoff's motion. After reviewing the motion and the City's opposition, the Court has determined that no hearing in necessary. The hearing has been vacated and the Court will grant in part and deny in part the motion to quash.
From Krasnoff's declaration, on October 4, 2017, a Rule 45 subpoena was dropped off at the front desk of WEST Environmental Services & Technology ("WEST"), Krasnoff's company. WEST and Krasnoff are based in San Rafael, California. Prior to dropping the subpoena off at the front desk of WEST, service of the subpoena was not attempted on Mission's counsel.
The subpoena commands Krasnoff to appear and testify in the trial of this matter.
Krasnoff explains that he has worked for 15 public agencies in the past 10 years, and has done work for Mr. Greben in 6 to 10 cases. To the extent that Krasnoff still has access to some or all of these files, virtually all of the files would contain substantial information protected by the attorney work-product doctrine, rights of privacy, and other privileges, which would require a page by page privilege review.
Prior to the subpoena, the City took Krasnoff's deposition on October 13, 2016. At the deposition, Krasnoff produced various documents in response to the deposition notice and the request for production of documents issued by the City. Krasnoff also gave testimony concerning some of his past municipality work and previous matters performed at Mr. Greben's request.
Per the orders on stipulations that extended dates set by the scheduling order, the non-expert discovery cutoff date was April 15, 2016, and the expert discovery cutoff date was October 5, 2016.
Krasnoff explains that he does not object to the aspect of the subpoena that commands his appearance at trial, nor does he object to the aspect of the subpoena that commands that he produce his complete file and billing records for this matter and the Coppola matter. The remainder of the subpoena is objectionable for several reasons. First, the request to produce files regarding other municipalities and other work for Mr. Greben over the last 10 years is a discovery request. Because discovery has closed, this aspect of the subpoena is an improper attempt to conduct discovery. Second, the subpoena creates an undue burden. The subpoena would require Krasnoff and his attorney to review voluminous documents and assess privileges and potentially violate privacy rights of third parties. Third, the subpoena suffers from facial defects in that prior notice to other parties was not given, Krasnoff is not located within 100 miles of Fresno, the subpoena was not served on Krasnoff, no witness fees were tendered to Krasnoff, and a reasonable time to comply with the subpoena was not provided. Therefore, the subpoena should be quashed.
Mission objects to three categories of requested documents. Mission objects that the first category is vague, broad, violates Rules 26(b), seek irrelevant information, seek confidential, proprietary, and privileged information, seek documents not in Krasnoff's possession, and that sufficient time to respond has not been given. Mission objects that the second category is overly broad, vague, and burdensome in that the discovery files in this case span over 100,000 pages of documents, a reasonable time to comply was not provided, the City is already in possession of Krasnoff's files in this matter, seeks privileged information, and seeks documents protected from reproduction by copyright laws. Finally, the third category is unduly burdensome and ambiguous, seeks documents that are protected by multiple privileges, seeks irrelevant information, and a reasonable time to comply is not given.
The City responds that the motion to quash should be denied because "(1) Mr. Krasnoff has failed to meet his burden of showing that compliance with the Trial Subpoena would be unduly burdensome; (2) the Trial Subpoena properly requires Mr. Krasnoff to bring documents to trial that are not otherwise available; and (3) Mr. Krasnoff was effectively served. . . ." Doc. No. 130 at 2. The focus of the City's argument is that Krasnoff has not demonstrated that production in compliance with the subpoena would be burdensome. The City has presented no argument or authority to explain why it believes that its present subpoena is not an attempt to obtain discovery outside of the relevant discovery period.
The Court will grant the motion to quash because the City's subpoena duces tecem is an improper attempt to circumvent discovery deadlines and the city has not made the requisite showing that the discovery period should be reopened.
The time for conducting expert discovery in this action expired on October 5, 2016. Doc. No. 38. With exceptions not present here,
Although the City has not requested modification of the scheduling order to reopen discovery, the Court considers the propriety of such a modification to allow for the discovery sought. District courts have "broad discretion to manage discovery and to control the course of litigation under [Rule] 16."
Under either standard, discovery should not be reopened. The City was aware no later than October 13, 2016, that Krasnoff indicated that he "design[ed] sewers in [the cities of] Vallejo, Mountain View, Hollister, Crockett, . . . Selby," and "Eureka." Deposition of Peter Krasnoff, October 13, 2016, Doc. No. 130-2 at 10-11. Indeed, on October 19, 2016, the City submitted public record requests to the cities of Vallejo, Mountain View, and Eureka to verify the information that Krasnoff provided. Doc. No. 130-2 at 14-19. By the end of October 2016 the public record request responses from all of those cities were returned; no documents were found or provided. Doc. No. 130-2 at 21-25. The City took no further action. See Doc. No. 130 at 3. As is evinced by the communications between counsel for the parties, the City's inaction was purposeful. Doc. No. 130-2 at 40. As a result, the Court cannot conclude that the City was diligent in conducting discovery. The Court certainly cannot conclude that manifest injustice would result if discovery were not reopened.
Insofar as the City's subpoena seeks production of documents from Krasnoff that were not timely requested in discovery, it will be quashed. The Court need not resolve Kransnoff's other arguments in support of his motion to quash.
Based on the foregoing, IT IS HEREBY ORDERED that Krasnoff's motion to quash is GRANTED in part and DENIED in part as follows:
IT IS SO ORDERED.