The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ELIZABETH MIRABELLI, an Case No.: 23-cv-00768-BEN-VET
individual, and LORI ANN WEST, and
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individual, ORDER (1) DENYING WITHOUT
13 PREJUDICE JOINT EX PARTE
Plaintiffs,
APPLICATION FOR AN ORDER
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v. COMPELLING PRODUCTION AND
15 (2) OPENING FACT DISCOVERY
MARK OLSON, in his official capacity as
FOR LIMITED PURPOSE
16 President of the EUSD Board of
Education, et al.,
17 [Doc. No. 229]
18 Defendants.
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20 Before the Court is a Joint Ex Parte Application for an Order Compelling Production
21 of Child Poe’s Therapy Records. Doc. No. 229 (“Joint Application”). Therein, Plaintiffs
22 and Defendant Rob Bonta (“Defendant Bonta”) request that the Court order two therapists,
23 Melissa Bright and William Moran (collectively the “Therapists”), to produce therapy
24 treatment records of Child Poe, the child of Plaintiffs John and Jane Poe who are
25 proceeding pseudonymously. See generally id. On February 26, 2025, Plaintiffs agreed to
26 produce the referenced treatment records as part of a supplemental document production.
27 Id. at 2. Plaintiffs then requested the treatment records directly from the Therapists. Id. at
28 2–3. However, the Therapists refused to produce the requested records, responding that a
1 court order was required given the treatment records’ sensitive nature. Id. at 3. Thus,
2 Plaintiffs and Defendant Bonta now jointly seek a Court order, directing the Therapists to
3 produce the requested records to Plaintiffs, who in turn will produce them to Defendant
4 Bonta. Id. at 4.
5 First, the Court notes that fact discovery in this matter closed on February 14, 2025.
6 See Doc. No. 179 at 4. And it appears that neither party served the Therapists with a
7 subpoena, pursuant to Fed. R. Civ. P. 45, seeking the records at issue. Despite the absence
8 of a subpoena, Plaintiffs and Defendant Bonta request that the Court compel production of
9 records from third parties. However, a motion to compel is not the appropriate means to
10 obtain documents from a third party. “A Rule 45 subpoena is the only discovery method
11 by which information may be obtained from a third party.” Gonzalez v. Fresno Sheriff’s
12 Dep’t, No. 1:15-cv-01200-BAM (PC), 2017 U.S. Dist. LEXIS 109853, *7 (E.D. Cal. July
13 13, 2017); see also Fed. R. Civ. P. 34(c) (non-parties may be compelled to produce
14 documents by subpoena), 45 (authorizing subpoenas); Frazier v. Redding Police Dept., No.
15 CIV S-11-1351 GGH P, 2012 U.S. Dist. LEXIS 165167, at *22–24 (E.D. Cal. Nov. 19,
16 2012) (motion to compel non-party to provide documents not proper in the absence of
17 appropriate service of a non-party subpoena in accordance with Fed. R. Civ. P. 45(b)(1)).
18 Therefore, the Court cannot order the Therapists, as third parties, to produce records absent
19 a valid subpoena. Thus, the Court DENIES WITHOUT PREJUDICE the Joint
20 Application.
21 Nevertheless, considering Plaintiffs’ agreement with Defendant Bonta to produce,
22 the Court recognizes that the therapy treatment records referenced in the Joint Application
23 likely require production to satisfy Plaintiffs’ continuing obligation to supplement their
24 document production. See L.A. Terminals, Inc. v. United Nat’l Ins. Co., 340 F.R.D. 390,
25 396 (C.D. Cal. 2022) (“The duty to supplement continues even after the discovery period
26 has closed.”) (internal quotations and citations omitted). To facilitate Plaintiffs’ obligation
27 to supplement, the Court finds that good cause exists to reopen fact discovery for the limited
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1 purpose of serving the Therapists with Rule 45 subpoenas. Accordingly, the Court
2 || ORDERS the following:
3 1. Fact discovery shall REOPEN for the limited purpose of permitting Plaintiffs
4 ||to serve Melissa Bright and William Moran with subpoenas pursuant to Fed. R. Civ. P. 45,
5 |}seecking the therapy treatment records of Child Poe that are identified in the Joint
6 || Application. The Court notes that “a subpoena duces tecum is itself a court order, and
7 ||noncompliance may warrant contempt sanctions.” See Pennwalt Corp. v. Durand-
8 || Wayland, Inc., 708 F.2d 492, 494 n.5 (9th Cir. 1983).
9 2. On or before April 7, 2025, Plaintiffs shall SERVE the aforementioned Rule
10 subpoenas on Melissa Bright and William Moran in accordance with all requirements
11 || for service under the Federal Rules.
12 3. Plaintiffs shall seek subpoena responses, including the production of the
13 ||therapy treatment records identified in the Joint Application, from Melissa Bright and
14 || William Moran by no later than April 28, 2025.
15 4. Upon receipt of any therapy treatment records from Melissa Bright and
16 |} William Moran, Plaintiffs shall PRODUCE the records to Defendant Bonta no later than
17 ||two business days after receipt of such records.
18 5. If Melissa Bright and/or William Moran fail to timely respond to the
19 || subpoenas, Plaintiffs and Defendant Bonta may FILE a joint motion to compel production
20 || by no later than April 30, 2025.
21 IT IS SO ORDERED.
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23 Dated: April 3, 2025
24 Honorable Valerie E. Torres
United States Magistrate Judge
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