AWGI, LLC et al v. Duncan and Elbaz, Inc. et al, No. 5:2010cv01529 - Document 38 (N.D. Cal. 2010)
Court Description: ORDER DENYING 31 Movant Omair Farooqui's Motion to Quash Deposition Subpoena. Signed by Judge Howard R. Lloyd on 11/3/2010. (hrllc1, COURT STAFF) (Filed on 11/3/2010)
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AWGI, LLC et al v. Duncan and Elbaz, Inc. et al Doc. 38 1 ** E-filed November 3, 2010 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 AWGI, LLC and ATLAS VAN LINES, INC., No. C10-01529 HRL 12 ORDER DENYING MOVANT FAROOQUI’S MOTION TO QUASH DEPOSITION SUBPOEANA AND FOR PROTECTIVE ORDER AND FOR COSTS AND ATTORNEY’S FEES Plaintiffs, 13 v. 14 DUNCAN & ELBAZ, INC., et al., 15 16 17 [Re: Docket No. 31] Defendants. ____________________________________/ BACKGROUND 18 Plaintiffs AWGI, LLC and Atlas Van Lines, Inc. (collectively, “Plaintiffs”) provide 19 transportation of household goods to consumers under their ATLAS-related registered trademarks 20 (the “ATLAS Marks”). (Docket No. 1 (“Complaint”), ¶¶ 21-23.) Plaintiffs filed suit against eight 21 defendants for trademark counterfeiting and infringement, trade dress infringement, and unfair 22 competition under the Lanham Act, copyright infringement under the Copyright Act, and California 23 state law claims for allegedly offering services identical to those of Plaintiffs through websites, 24 email addresses, and telephone numbers that utilize the ATLAS Marks. (Id.) 25 26 Plaintiffs have yet to serve four of those defendants: Duncan & Elbaz, Inc. (“D&E”), Dan Horwize (“Horwize”), Edan Elbaz (“Elbaz”), and Rachel Lawson (“Lawson”) (collectively, the 27 28 Dockets.Justia.com 1 “Unserved Defendants”).1 Plaintiffs say they have not done so because they cannot find them. 2 (Docket No. 35 (“Opp’n”) at 3-4.) Plaintiffs believe that defendant Elbaz is the “ringleader” of all 3 the defendants and think that if they can locate and serve Elbaz, they will be able to locate and serve 4 the other Unserved Defendants. (Opp’n at 4.) Elbaz, it should be noted, is also the registered agent 5 for service of process for D&E. (Complaint, ¶ 8.) 6 To that end, Plaintiffs served a deposition subpoena on D&E’s and Elbaz’s counsel, Omair 7 Farooqui (“Farooqui”), requiring him to appear for deposition and bring with him any and all non- 8 privileged documents referencing and/or identifying Elbaz’s address, phone number, and any and all 9 other contact information. (Docket No. 31-2 (“Farooqui Decl.”), Ex. C.) Farooqui moved to quash the subpoena on the grounds that his client’s address is protected For the Northern District of California United States District Court 10 11 from disclosure by the attorney-client privilege. (Docket No. 31 (“Motion”).) Farooqui also moved 12 for a protective order preventing his deposition and for his attorney’s fees and costs incurred in 13 filing his motion to quash. (Id.) Plaintiffs opposed Farooqui’s motion, and the Court heard oral 14 argument on the matter on October 26, 2010. DISCUSSION 15 Farooqui argues that he should not be deposed because he is counsel for E&D and Elbaz and 16 17 because Plaintiffs seek information protected by the attorney-client privilege. He contends that the 18 three-part test established in the Eighth Circuit case Shelton v. American Motors Corp., 805 F.2d 19 1323, 1327 (8th Cir.1986), should apply, and Plaintiffs appear to agree. (Motion at 4; Opp’n at 6.) 20 That case held that a deposition of a party’s attorney should be permitted only where the party 21 seeking the deposition shows that (1) no other means exist to obtain the information; (2) the 22 information sought is relevant and nonprivileged; and (3) the information is crucial to the 23 preparation of the case. Shelton, 805 F.2d at 1327. 24 Although the parties have not cited binding precedent, this court has noted in the past that 25 Shelton is generally recognized as the leading case on attorney depositions by a number of district 26 27 28 1 One other defendant, Itzhak Taizi, was also never served, but Plaintiffs voluntarily dismissed him on August 24, 2010. (Docket No. 30.) 2 1 courts within this circuit, including several within this District.2 Accordingly, the Shelton test shall 2 be applied. 3 1. The Information Is Crucial to the Preparation of the Case 4 Taking the third requirement first, the location of E&D and Elbaz is clearly crucial to 5 Plaintiffs’ case; without it, they cannot properly serve E&D and Elbaz (and possibly Horwize and 6 Lawson, the other two Unserved Defendants) with the complaint. 7 2. There Do Not Appear to Be Other Means to Obtain the Information 8 As for the first requirement, the Court is satisfied that Plaintiffs have exhausted all other 9 reasonable means of obtaining Elbaz’s location. They have interviewed E&D’s former customers; For the Northern District of California United States District Court 10 hired two private investigators to research at least six alleged addresses of the Unserved Defendants; 11 and requested assistance from federal law enforcement agencies, all to no avail. (Opp’n at 7; 12 Docket No. 35-1 (“Warzecha Decl.”), ¶¶ 4-6; Docket No. 35-2 (“Ghazarians Decl.”), ¶ 8.) In 13 addition, Plaintiffs maintain that they have not been to serve the Unserved Defendants because they 14 have evaded personal service. (Motion at 4.) For example, Plaintiffs apparently had located Elbaz 15 just prior to filing their complaint, but after it was filed, Elbaz slipped away before he could be 16 served. (Opp’n at 7; Warzecha Decl., ¶ 6.) From these facts, it is clear that Plaintiffs’ subpoena of 17 Farooqui represents a last-ditch effort to locate Elbaz because their numerous other efforts have all 18 failed, and not merely an easy-way-out approach to prosecuting its action. 19 3. The Information Sought Is Relevant and Not Privileged 20 “Generally, the identity of an attorney’s client and the nature of the fee arrangement between 21 an attorney and his client are not privileged.” In re Grand Jury Subpoenas, 803 F.2d 493, 496 (9th 22 Cir. 1986) (citing In re Osterhoudt, 722 F.2d 591, 592 (9th Cir. 1983); Schofield, 721 F.2d at 1222; 23 Lahodny, 695 F.2d at 365; United States v. Sherman, 627 F.2d 189, 190 (9th Cir. 1980); United 24 States v. Hodge & Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977)). This is because “[t]he fact of 25 representation and the associated fee arrangement are preliminary, by their own nature, establishing 26 2 27 28 See S.E.C. v. Jasper, No. C07-06122 JW (HRL), 2009 WL 1457755, at *3 n.1 (citing Massachusetts Mutual Life Ins. Co. v. Cerf, 177 F.R.D. 472, 479 (N.D. Cal., 1998); Fausto v. Credigy Servs. Corp., No. C07-05658, 2008 WL 4793467 (N.D. Cal., Nov. 3, 2008); Graff v. Hunt & Henriques, No. C08-0908, 2008 WL 2854517 (N.D. Cal., July 23, 2008); Nocal, Inc. v. Sabercat Ventures, Inc., No. C04-0240, 2004 WL 3174427 (N.D. Cal., Nov. 15, 2004)). 3 1 only the existence of the relation between client and counsel, and therefore, normally do not involve 2 the disclosure of any communication arising from that relation after it was created.” In re Grand 3 Jury Subpoenas, 803 F.2d at 496 (citing Osterhoudt, 722 F.2d at 593). As one court explained in 4 regard to similar cases in the Second Circuit, “[t]he common theme of cases such as these is that the 5 client is not entitled to shield information which the client has provided to the attorney not in 6 confidence, as the factual basis for the request for legal advice, but only as incidental to the 7 establishment of the relationship.” Litton Industries, Inc. v. Lehman Brothers Kuhn Loeb Inc., 130 8 F.R.D. 25, 25 (S.D.N.Y. 1990). 9 Similarly — although the parties have cited no authority binding upon this Court — it For the Northern District of California United States District Court 10 appears that the general rule with respect to a client’s location is this: A client’s whereabouts are 11 protected by the attorney-client privilege only when “communicated to the lawyer in confidence for 12 the very purpose of obtaining legal advice with regard to the client’s location.” Litton Industries, 13 130 F.R.D. at 26. See also Viveros v. Nationwide Janitorial Ass’n, Inc., 200 F.R.D. 681, 683 (N.D. 14 Ga. 2000); Integrity Ins. Co. v. American Centennial Ins. Co., 885 F.Supp. 69, 73-74 (S.D.N.Y. 15 1995), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 16 549 F.3d 210 (2d Cir. 2008); Matter of Grand Jury Subpoenas Served Upon Field, 408 F.Supp. 17 1169, 1173 (S.D.N.Y. 1976); In re Stolar, 397 F.Supp. 520, 524 (S.D.N.Y. 1975). To meet this 18 rule, then, the client must have wanted his or her location to be kept confidential and the client must 19 have been seeking out legal advice regarding his or her location and not some other purpose. In 20 other words, a movant asserting the attorney-client privilege must “mak[e] a showing that the 21 address ‘was [something] more than incidental to the attorney-client relationship.’” Viveros, 200 22 F.R.D. at 683 (quoting Integrity Ins. Co., 885 F.Supp. at 74). 23 Farooqui relies heavily on the out-of-Circuit case Matter of Grand Jury Subpoenas Served 24 upon Field, 408 F.Supp. 1169 (S.D.N.Y. 1976). In that case, the attorney movants’ affidavits stated 25 that the client requested that the attorneys review the laws of a number of jurisdictions in connection 26 with the client’s proposed change of residence. Matter of Grand Jury Subpoenas Served upon 27 Field, 408 F.Supp. at 1171. After receiving the attorneys’ advice, the client moved to one of these 28 jurisdictions and informed the attorneys of his location and requested that the attorneys keep his new 4 1 location confidential. Id. Under these sworn facts, the court thus concluded that “the residence and 2 whereabouts of [the client] were communicated to these attorneys in confidence, as an incident to 3 the obtaining of legal advice and as part of an attorney-client relationship” and granted the movants’ 4 motion to quash. Id. at 1173. 5 Such a showing cannot be made simply through conclusory statements, though. In granting 6 a plaintiff’s motion to compel the deposition of a witness’s attorney to discover the witness’s 7 address, the court in Litton Industries found the statements in the attorney movant’s affidavit 8 insufficient. The court explained: 9 For the Northern District of California United States District Court 10 11 12 13 14 15 Here . . . the sole support for the claim of privilege is the statement in the lawyer’s affidavit that, “At the time of Campbell’s communications to your deponent, a civil action was threatened by the [Securities and Exchange Commission] and the communications concerning his address were matters having to do with that action.” This cryptic and conclusory statement does not suffice to take this case out of the general rule that information which identifies a client is unprotected by the attorneyclient privilege. There is no evidence that the client’s address was provided in confidence or that treating the information as confidential is justified because it was related to the legal advice requested. Litton Industries, 130 F.R.D. at 26 (internal citation omitted). In this case, Farooqui says in his similarly cryptic declarations that Elbaz sought his legal 16 advice about this action and, specifically, about “the law relating to service of process.” (Farooqui 17 Decl., ¶ 4; Docket No. 36-1 (“Farooqui Supp. Decl.”), ¶ 3.) Farooqui also says that Elbaz’s address 18 was central to their attorney-client communications and that he was “specifically instructed” to keep 19 Elbaz’s location confidential. (Farooqui Supp. Decl., ¶ 4.) 20 Plaintiffs argue in opposition that Elbaz’s address was “merely incidental” to Farooqui’s 21 communications with Elbaz. (Opp’n at 8.) This is shown, they say, by the settlement discussions 22 between Farooqui and Plaintiffs’ counsel, Mark Warzecha (“Warzecha”), which took place during 23 an April 28 telephone conversation, apparently at the request of Elbaz. (Opp’n at 8-12; Farooqui 24 Decl., ¶ 4 (“As part of my professional engagement with Defendant, Edan Elbaz, I was asked to 25 contact Plaintiff’s counsel in this matter and investigate the possibility of resolving Plaintiffs’ 26 claims.”).) 27 28 In his declaration, Farooqui states that during the respective counsels’ telephone call, which he initiated, “Mr. Warzecha asked me during our telephone conversation if I was authorized to 5 1 accept service of process on behalf of Defendant, Edan Elbaz, to which I responded that I was not. 2 Thereafter I sent a letter to Mr. Warzecha via facsimile confirming that I was not authorized to 3 accept service of process on behalf of Defendants, Duncan and Elbaz, Inc., or Edan Elbaz.” 4 (Farooqui Decl., ¶ 5.) 5 Warzecha, on the other hand, says that Farooqui’s description of the conversation is 6 incomplete. Warzecha says that when he first asked Farooqui whether he was authorized to accept 7 service of the complaint on behalf of D&E and Elbaz, Farooqui said yes. (Warzecha Decl., ¶ 8.) 8 About an hour later, though, Farooqui called back and advised him that he was not authorized to 9 accept service on behalf of them. (Warzecha Decl., ¶ 9.) Farooqui followed this up with a letter For the Northern District of California United States District Court 10 stating the same. (Id.) The Court notes that Farooqui did not challenge Warzecha’s description of 11 the sequence of events. 12 Taken together, the parties’ descriptions of this discussion lead the Court to believe that 13 Elbaz contacted Farooqui, first and foremost, to discuss the merits of this lawsuit and to have 14 Farooqui reach out to Plaintiffs’ counsel to broach the topic of settlement. Unlike the client in 15 Matter of Grand Jury Subpoenas Served upon Field, Elbaz did not seek Farooqui’s legal advice 16 specifically as to his address or location. Elbaz did not, for instance, ask Farooqui to provide legal 17 advice about different jurisdictions to which Elbaz could move. Rather, the facts that (1) it was 18 Farooqui who initiated the telephone call to Plaintiffs’ counsel to discuss the settlement of 19 Plaintiffs’ claims and (2) Farooqui initially told Plaintiffs’ counsel that he was authorized to accept 20 service on behalf of D&E and Elbaz, suggest that Elbaz’s location was not the “factual basis for the 21 request for legal advice” from Farooqui. Litton Industries, 130 F.R.D. at 25. Indeed, if Elbaz 22 actually told Farooqui his location “for the very purpose of obtaining legal advice with regard to” 23 his location (i.e., for Elbaz to avoid being served), it is highly unlikely that Elbaz would also ask 24 Farooqui to contact Plaintiffs’ counsel about settling the matter. Id. at 26. After all, what would be 25 the point of settling a case in which you have not even been served? 26 Plaintiffs also point out that the court in Matter of Grand Jury Subpoenas Served upon Field, 27 after concluding that the client’s address was protected by the attorney-client privilege, specifically 28 noted that there had not been any allegations that the legal advice was given for the purpose of 6 1 aiding the commission of a crime, to enable a defendant to avoid any criminal investigation or 2 proceeding pending at the time the advice was given, or to enable the client to avoid lawful process 3 in a pending proceeding. Matter of Grand Jury Subpoenas Served upon Field, 408 F.Supp. at 1173- 4 74. This suggests that had any of those facts been present, the court may have decided differently. 5 Here, one of those facts is present, and this Court will decide differently. It would be fundamentally 6 unfair to allow Elbaz to cloak his whereabouts with the protections of the attorney-client privilege in 7 order to avoid service of process when the legal advice he sought did not directly involve his 8 location. Thus, for the reasons explained above, Elbaz’s location is not privileged. 9 Because all three requirements of the Shelton test have been met, Farooqui’s motion to quash For the Northern District of California United States District Court 10 Plaintiffs’ subpoena will be denied. Consequently, Farooqui’s request for the issuance of a 11 protective order preventing his deposition and for attorney’s fees and costs will also be denied. 12 CONCLUSION 13 Based on the foregoing, Farooqui’s motion is DENIED. Farooqui shall comply with 14 15 16 17 Plaintiffs’ deposition subpoena within 21 days of the date of this order. IT IS SO ORDERED. Dated: November 3, 2010 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 7 1 C10-01529 HRL Notice will be electronically mailed to: 2 Ann Marie Ghazarians Fred W. Schwinn 3 4 Mark F Warzecha Vanessa Kathryn Herzog aghazarians@hfdclaw.com fred.schwinn@sjconsumerlaw.com, cand_cmecf@sjconsumerlaw.com, fschwinn@gmail.com mark@warzechalaw.com vherzog@hfdclaw.com, jtanji@hfdclaw.com, maguilar@hfdclaw.com 5 6 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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