Shih v. Petal Card, Inc.

Background

The defendants—Petal Card, Inc., Andrew Endicott, and Jason Gross—submitted a letter application under Federal Rule of Civil Procedure 45(d)(2)(B)(i) seeking an order requiring six nonparties to produce documents in response to subpoenas. The six nonparties included two of Cassandra Shih’s businesses, her husband and business partner, and current or former employees or advisers of one of her businesses. The opinion text says that the nonparties were represented by Cassandra Vogel.

The underlying lawsuit concerns Shih’s claim that communications she had with Endicott before Petal’s incorporation created contractual and fiduciary obligations and entitled her to benefit from Petal’s success. The defendants argued that the subpoenaed documents were relevant to their defenses, including issues concerning Shih’s business experience, business practices, industry knowledge, and how she formed or documented business relationships.

Discovery dispute

The immediate dispute concerned an alleged February 15, 2019 cutoff date. The defendants said the nonparties had produced limited documents, that two nonparties had produced none, and that Vogel had taken the position that her clients would not produce documents from after that date. The defendants argued that a July 3, 2019 letter did not create a general cutoff for nonparty discovery and that documents after February 15, 2019 remained relevant. They also disputed arguments that the subpoenas were burdensome, that defendants first had to seek the documents from Shih, or that the subpoenas were harassment.

The court’s order did not decide whether the documents after February 15, 2019 were relevant, whether the subpoenas imposed an undue burden, whether privilege applied, or whether any nonparty had to produce particular documents. Instead, the court addressed the manner in which defendants had presented the subpoena dispute.

Ruling

Judge Moses stated that Rule 45(d)(2)(B)(i) does not contemplate motions to compel subpoena compliance being made one issue at a time and that proceeding that way generally would not promote efficient case management. The court therefore ordered defendants, no later than April 21, 2021, either (a) to withdraw their letter application, without prejudice to an application resolving all outstanding issues arising from the contested subpoenas, or (b) to advise that they wished to proceed with the current application, recognizing that future applications concerning current issues arising from the same subpoenas would be foreclosed.

The order was a case-management directive and did not grant or deny the requested motion to compel on the merits.