Silver v. BA Sports Nutrition, LLC

Background

The plaintiffs moved to quash, meaning to cancel or invalidate, subpoenas that BA Sports Nutrition served seeking numerous categories of documents from plaintiffs’ counsel. The court had stayed the subpoenas’ return date while resolving the dispute and had scheduled a hearing, but it vacated that hearing under the court’s local rules. The order’s title also states that the court denied the plaintiffs’ request to file an amended reply.

The court separately criticized counsel for continuing to use hostile and personal language in their written arguments despite an earlier warning. It stated that future filings using similarly acrimonious language could be stricken. The court ordered all counsel of record to review the Northern District of California’s Guidelines for Professional Conduct and file individual declarations confirming that review by November 6. It also directed the parties to meet by videoconference about future discovery disputes and noted that it could require client attendance at hearings or impose sanctions if warranted.

Legal standard

The plaintiffs urged the court to apply the standard from Shelton v. American Motors Corp. The defendant argued that Federal Rule of Civil Procedure 26(b) should govern. The court held that the Shelton standard applied because the subpoenas sought discovery from opposing litigation counsel.

Under that standard, discovery from opposing counsel is allowed only when: (1) no other means exist to obtain the information; (2) the information sought is relevant and not protected by privilege; and (3) the information is crucial to preparing the case. The court noted that courts in the Ninth Circuit have applied this standard to requests for documents from opposing counsel as well as depositions.

Court’s analysis

The court found that BA Sports Nutrition failed to satisfy the first requirement. The record indicated that the defendant was seeking the same documents from the plaintiffs themselves. The defendant also had not addressed whether it had tried to obtain the documents from other sources. In addition, the plaintiffs had not yet been deposed, and the court stated that defense counsel presumably could explore their knowledge of the case, solicitation, and injury during those depositions.

Based on the record before it, the court concluded that BA Sports Nutrition had not shown that no other means existed to obtain the requested information.

Disposition

The court granted the plaintiffs’ motion to quash the subpoenas directed to plaintiffs’ counsel. The order’s title also states that the court denied the plaintiffs’ request to file an amended reply. The court vacated the scheduled hearing.