Golden Gate Way, LLC v. Enercon Services, Inc.

Background

ERM-West Inc., a defendant, asked for an emergency discovery conference after the deadline passed for nonparty Robert Clark-Riddell to respond to a subpoena for documents. ERM said it needed the documents before its scheduled deposition of Clark-Riddell the following week and before the parties’ February 17, 2021, mediation.

Clark-Riddell had objected to the subpoena on January 20, 2021. The court explained that, after a subpoena objection, the nonparty is not required to produce the documents or search for them unless the subpoenaing party obtains a court order directing compliance. Under Federal Rule of Civil Procedure 45, the proper way to seek that order was a motion to compel.

Court’s Reasoning

Judge Alex G. Tse rejected ERM’s request to bypass the motion-to-compel procedure because of the limited time before the deposition. The court stated that Rule 45 contains no emergency exception and that the rule protects nonparties who rely on the objection process when deciding how and when to respond to subpoenas.

The court also stated that the claimed emergency appeared to be of ERM’s own making. ERM could have moved to compel after receiving Clark-Riddell’s objections, and the parties had had months to conduct discovery before the scheduled mediation.

Outcome

The court denied ERM-West’s request for an emergency discovery conference. It stated that, if Clark-Riddell maintained his objections, ERM would need to file a motion to compel. The court also said it would consider a request for an expedited briefing schedule so the dispute could be resolved before the scheduled mediation.