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Case 3:19-Cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 Pageid.5 Page 1 of 17 Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.5 Page 1 of 17 LAW OFFICES OF RONALD A. MARRON 1 RONALD A. MARRON (175650) [email protected] 2 MICHAEL T. HOUCHIN (305541) [email protected] 3 651 Arroyo Drive 4 San Diego, California 92103 Telephone:(619) 696-9006 5 Facsimile: (619) 564-6665 Counsel for Plaintiffs and the Proposed Class 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 HOWARD CLARK, TODD HALL, and CASE NO.: '19CV0356 LAB MDD 11 ANGELA PIRRONE, individually, on behalf of all others similarly situated, 12 and the general public, CLASS ACTION 13 Plaintiffs, MEMORANDUM OF POINTS AND 14 vs. AUTHORITIES IN SUPPORT OF 15 NON-PARTY LAW OFFICES OF 16 RONALD A. MARRON’S MOTION TO QUASH SUBPOENA 17 THE HERSHEY COMPANY, a Delaware corporation 18 Defendant. 19 20 21 22 23 24 25 26 27 28 1 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.6 Page 2 of 17 1 TABLE OF CONTENTS 2 I. INTRODUCTION ....................................................................................... 1 3 II. FACTUAL BACKGROUND ...................................................................... 1 4 A. The Instant Subpoena that Was Issued to Plaintiffs’ Counsel ..................... 2 5 III. LEGAL STANDARD.................................................................................. 3 6 IV. ARGUMENT ............................................................................................... 5 7 A. Defendant Cannot Satisfy the Shelton Test and the Subpoena Should be 8 Quashed .................................................................................................................. 5 9 1. Defendant Has Other Means of Obtaining the Requested Documents ........ 5 10 2. The Requested Documents Are Both Privileged and Irrelevant .................. 6 11 a. Documents that Are Protected by the Attorney-Client Privilege and the 12 Attorney-Work Product Doctrine ................................................................ 6 13 14 b. Documents that Are Irrelevant and Not Proportional to the Needs of the 15 Case .............................................................................................................. 8 16 3. The Requested Documents Are Not Crucial to the Preparation of 17 Defendant’s Case ....................................................................................... 10 18 B. Alternatively, this Court Should Issue a Protective Order to Protect the 19 Marron Firm From Undue Burden and Expense .................................................. 10 20 C. The Subpoena Should Also be Quashed Because it Was Not Served in 21 Accordance with Federal Rule of Civil Procedure 45(a)(4) ................................ 11 22 V. CONCLUSION .......................................................................................... 11 23 24 25 26 27 28 ii Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.7 Page 3 of 17 1 TABLE OF AUTHORITIES 2 Cases 3 Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 4 881 F.2d 1486 (9th Cir. 1989) ............................................................................7, 8 5 Chao v. Aurora Loan Servs., LLC, 6 2012 WL 5988617 (N.D. Cal. Nov. 26, 2012) ...................................................... 9 7 Daughtery v. Wilson, 8 2008 WL 4748042 (S.D. Cal. Oct. 23, 2008) ......................................................... 9 9 Erhart v. Bofi Fed. Bank, 10 11 2017 WL 840648 (S.D. Cal. Mar. 2, 2017) ............................................. 4, 5, 6, 10 12 Flotsam of Cal., Inc. v. Huntington Beach Conference & Visitors Bureau, 13 2007 WL 4171136 (N.D. Cal. Nov. 26, 2007) ....................................................... 4 14 Graff v. Hunt & Henriques, 15 2008 WL 2854517 (N.D. Cal. July 23, 2008) ...................................................... 10 16 Hernandez v. Tanninen, 17 604 F.3d 1095 (9th Cir. 2010) ................................................................................ 7 18 Hickman v. Taylor, 19 329 U.S. 495 (1947) ...........................................................................................6, 7 20 In re Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 21 357 F.3d 900 (9th Cir. 2004) .................................................................................. 8 22 In re Grand Jury Subpoena Dated July 6, 2005, 23 510 F.3d 180 (2d Cir. 2007) ................................................................................... 7 24 In re Subpoena Issued to Dennis Friedman, 25 350 F.3d 65 (2d Cir. 2003) ................................................................................... 11 26 27 28 iii Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.8 Page 4 of 17 1 Kirzhner v. Silverstein, 2 2011 WL 1321750 (D.Colo. Apr. 5, 2011) ............................................................ 4 3 Kirzhner v. Silverstein, 4 870 F. Supp. 2d 1145 (D. Colo. 2012) ................................................................... 1 5 M.A. Mobile Ltd. v. Indian Inst. of Tech. Kharagpur, 6 2014 WL 819161 (N.D. Cal. Feb. 28, 2014) .......................................................... 9 7 Moon v. SCP Pool Corp., 8 232 F.R.D. 633 (C.D. Cal. 2005) ............................................................................ 3 9 Nocal, Inc. v. Sabercat Ventures, Inc., 10 2004 WL 3174427 (N.D. Cal. Nov. 15, 2004) ..................................................... 10 11 Rhodes v. Sutter Gould Med. Found., 12 2014 WL 2091767 (E.D. Cal. May 16, 2014) ........................................................ 9 13 14 Rivera v. NIBCO, Inc., 15 364 F.3d 1057 (9th Cir. 2004) ................................................................................ 9 16 Rygg v. Hulbert, 17 2013 WL 264762 (W.D. Wash. Jan. 23, 2013) ...................................................... 4 18 Shelton v. Am. Motors Corp., 19 805 F.2d 1323 (8th Cir. 1986) ..................................................................... passim 20 Upjohn Co. v. U.S., 21 449 U.S. 383 (1981) ............................................................................................... 6 22 Valencia v. Colo. Cas. Ins. Co., 23 2007 WL 5685360 (D.N.M. Dec. 8, 2007) ............................................................ 4 24 XTO Energy, Inc. v. ATD, LLC, 25 2016 WL 1730171 (D.N.M. Apr. 1, 2016) ............................................................ 4 26 27 28 iv Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.9 Page 5 of 17 1 Statutes 2 Cal. Bus. & Prof. Code § 17200 et seq. ..................................................................... 2 3 Cal. Bus. & Prof. Code. §§ 17500 et seq. .................................................................. 2 4 Cal. Civ. Code §§ 1750 et seq. ................................................................................... 2 5 New York’s Claim for False Advertising, N.Y. Bus. Law § 350 .............................. 2 6 New York’s Claim for Unfair Trade Practices, N.Y. Bus. Law § 349 ...................... 2 7 Rules 8 9 Fed. R. Civ. P. 26(b)(1) ..........................................................................................3, 8 10 Fed. R. Civ. P. 26(c) ................................................................................................. 10 11 Fed. R. Civ. P. 45(d)(3)(A)(iii)(iv) ............................................................................ 3 12 Federal Rule of Civil Procedure 26(b)(2) .................................................................. 5 13 Federal Rule of Civil Procedure 45(a)(4) ................................................................ 11 14 Federal Rule of Civil Procedure 45(b) ....................................................................... 3 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.10 Page 6 of 17 1 Non-Party Law Offices of Ronald A. Marron, APLC (the “Marron Firm”) 2 respectfully submits this Memorandum of Points and Authorities in Support of its Motion 3 to Quash the Subpoena that was issued to it on January 23, 2019 by Defendant The 4 Hershey Company (“Hershey” or “Defendant”) in the matter of Clark v. The Hershey 5 Co., Case No. 3:18-cv-06113-WHA (N.D. Cal.). For the reasons set forth below, the 6 Marron Firm’s Motion to Quash should be granted in its entirety. 7 I. INTRODUCTION 8 The Marron Firm’s documents are not the primary aim of Defendant’s subpoena. 9 The primary aim is to harass, burden, and smear active litigation counsel for Plaintiffs 10 Howard Clark, Todd Hall, and Angela Pirrone (“Plaintiffs”) who are locked into a class 11 action lawsuit with Defendant. The instant subpoena is a strategic ploy designed to strike 12 a blow against a class action litigation firm that has been a thorn in Defendant’s side. 13 Drawing opposing counsel into discovery is antithetical
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