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Thai v. Richmond City Center, L.P.: Establishing Precedent for Motion to Compel Deadlines in Subpoenaed Consumer Records

By Eric Ganci

A case of first impression: firming up law for deadlines to file a motion to compel after you subpoena records from a consumer not a party in the suit, and that consumer objects to producing your subpoenaed documents. Thai v. Richmond City Center, L.P. (2022)

When you’re in civil litigation, you have the power to subpoena records from a consumer who is not a party to the lawsuit. However, if you subpoena records, that non-party consumer can object to producing these records. And with that, certain statutes and timelines apply for when you must seek a motion to compel.

Thai v. Richmond City Center, L.P.*, filed 12/14/22, firms up some language within our California Code of Civil Procedure regarding this. This is actually a case of first impression, although the Court here analyzes the laws as written. It’s just the first time we’ve seen this before our California Courts.

First, what happened in Thai:

Plaintiff served a subpoena for records on this Consumer. Consumer timely objected to producing those documents. Just shy of 2 months after Consumer’s objection: Plaintiff filed a motion to compel per CCP section 2025.480.

So what is the law here?

Starting from the beginning, the law is:

  • “A subpoenaing party must give notice to a consumer when seeking its personal records through a third party subpoena. (Code Civ. Proc., § 1985.3, subds. (b) & (e).)
  • If a nonparty consumer objects to the production of its personal records, the witness or deposition officer is generally not required to produce them absent a court order. (§ 1985.3, subd. (g).)
  • The subpoenaing party may then bring a motion to enforce the subpoena within 20 days of the objection. (§ 1985.3, subd. (g).)”
[I added the bullet points]

So what happens if you miss this initial 20-day deadline to file the motion to compel? The Court says “We hold that after this 20-day deadline expires, the subpoenaing party cannot move to enforce the subpoena over the objection through a motion to compel under section 2025.480, which has a 60-day deadline.”

So here, the Court holds against Plaintiff. Plaintiff tries to argue both CCP sections 1985.3 and 2025.480 use the word “may”, as in “you ‘may’ file a motion to compel…” And Plaintiff argues that “may” does not actually require the 20-day timeline. And that’s the part of first impression: the Court here disagrees with Plaintiff.

The Court’s explanation is this:

“The use of ‘may’ within section 1985.3, subdivision (g), does not mean the 20-day time limit is permissive. It indicates the subpoenaing party’s decision whether to bring a motion to enforce the subpoena is permissive. Similarly, section 2025.480, subdivision (a), states that ‘[i]f a deponent fails to answer any question or to produce any document, … the party seeking discovery may move the court for an order compelling that answer or production.’ The use of ‘may’ in both statutes clarifies that the subpoenaing party is not required to bring a motion under the relevant statute if the information sought is not produced.” I added the emphasis.

With this, the Court confirms the timeline per the CCP: if the Consumer objects to your subpoena, you must file a motion to compel within 20 days.

*86 Cal.App.5th 282