United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ERIC SEDIE,

Plaintiff,

 v.

UNITED STATES POSTAL SERVICE,

Defendant. /

No. C-08-04417 EDL

ORDER RE: TRIAL SUBPOENAS

On December 22, 2009, the Court granted in part and denied in part Defendant’s Motion to

Reopen Discovery, which sought to conduct discovery regarding Plaintiff’s writings on the internet,

specifically, Plaintiff’s Facebook and MySpace pages, and email accounts. Rather than allow broad

discovery on this issue, the Court permitted a forensic examination of Plaintiff’s computer pursuant

to a protocol jointly proposed by the parties. At the pretrial conference on January 19, 2010,

Defendant indicated that it also intended to serve trial subpoenas on the internet entities. The Court

ordered further briefing on this issue, and on January 21, 2010, the parties filed a joint letter with

their respective positions as to whether Defendant may issue trial subpoenas to the custodian of

records for Facebook, MySpace and Plaintiff’s email providers. The Court has read the joint letter

and the authorities cited therein, and issues the following Order granting in part and denying in part

Defendant’s request to issue trial subpoenas. 

Defendant argues that the Court should permit it to serve trial subpoenas because there is no

other safeguard available to Defendant to verify the information it received in the recent production

of internet writings. While the Court did not reach the issue of trial subpoenas previously, it did

Case 3:08-cv-04417-EDL Document 144 Filed 01/25/10 Page 1 of 3
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

deny discovery of these internet entities. Trial subpoenas may not be used to obtain information that

could have been gathered during the discovery period. See, e.g., Nsight v. PeopleSoft, Inc., 2006

WL 988807, at *2 (N.D. Cal. Apr. 13, 2006); Rice v. U.S., 164 F.R.D. 556, 557-58 (N.D. Okla.

1995). It is undisputed that Defendant knew about Plaintiff’s activity on the internet well before

discovery closed. See, e.g., Declaration of Melissa Brown in Supp. of Def.’s Mot. to Reopen

Discovery ¶ 3 (stating that on July 21, 2009, she discovered Plaintiff’s Facebook page, which was

partially publicly available); Id. at ¶ 5 (stating that at Plaintiff’s deposition on September 15, 2009,

he stated that he used Facebook and MySpace); Declaration of Jonathan Lee in Supp. of Def.’s Mot.

to Reopen Discovery Ex. AJ at 171-74 (attaching Plaintiff’s testimony from his deposition, in which

he testified that he accessed Facebook and MySpace page and email). 

Further, the Court’s Order regarding the forensic computer examination by a jointly chosen

third party, Andrew Crain, was intended to address any prejudice to Defendant stemming from

Plaintiff’s prior failure to adequately search his computer for responsive documents. Defendant

argues that it has concerns about the adequacy of the search process that was undertaken by Mr.

Crain, but provides no objective basis for those concerns. The parties agreed to the search protocol,

and there has been no showing that the search was inadequate or improper. Accordingly, Defendant

has provided no justification for allowing broad trial subpoenas to Facebook, MySpace and

Plaintiffs’ email providers (except for gmail as stated below) aimed at verifying the information

obtained through the forensic analysis. Therefore, Defendant’s request as to these entities is denied.

However, Defendant also notes that Plaintiff’s counsel informed Defendant on January 19,

2010 that Mr. Crain did not have access to Plaintiff’s gmail account because Plaintiff had not kept

the account current. Because it appears that Mr. Crain was not able to evaluate the gmail account,

and there appears to be no other way to obtain that information, Defendant may serve a trial

subpoena for the gmail account. 

Defendant argues that Plaintiff has failed to comply with certain aspects of the search

protocol. For example, Defendant argues that Plaintiff did not provide a declaration listing his

internet accounts, as ordered at the hearing. See Dec. 22, 2009 Tr. at 13-14. The requirement of a

declaration, however, was not included in the parties’ jointly proposed order. Further, Defendant

Case 3:08-cv-04417-EDL Document 144 Filed 01/25/10 Page 2 of 3
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

stated that this topic can be addressed at Plaintiff’s deposition, which is scheduled for January 25,

2010. Therefore, any prejudice arising from the failure to provide a declaration will likely be cured. 

The remaining alleged deficiencies in Plaintiff’s compliance appear to have been resolved as

described in Defendant’s portion of the January 21, 2010 letter. 

Defendant also seeks to issue a trial subpoena for Mr. Crain to testify at trial. Plaintiff,

however, has agreed to stipulate to the authenticity of the records produced by Mr. Crain. 

Therefore, there is likely no need for his testimony. While Defendant may issue a trial subpoena to

Mr. Crain as a precautionary measure, Defendant will need the Court’s permission to actually call

him as a witness and should so inform him. However, because Plaintiff’s failure to produce

documents in a timely manner necessitated Mr. Crain analysis, and because Defendant’s review of

the results of Mr. Crain’s analysis has been limited in time, Defendant may take a short deposition of

Mr. Crain. The deposition shall be limited to no more than two hours. 

IT IS SO ORDERED.

Dated: January 25, 2010 

ELIZABETH D. LAPORTE

United States Magistrate Judge

Case 3:08-cv-04417-EDL Document 144 Filed 01/25/10 Page 3 of 3