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

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, et al.,

Plaintiffs,

v.

MATTHEW WAYNE, et al.,

Defendants.

Case No. 16-cv-06994-PJH 

ORDER DENYING MOTION TO 

COMPEL THIRD-PARTY 

COMPLIANCE WITH TRIAL 

SUBPOENA

Re: Dkt. No. 166

Relator’s motion to compel compliance with trial subpoena came on for hearing 

before this court on January 26, 2023. The hearing was advanced by the court to provide 

the parties with a resolution before the upcoming pretrial conference. Relator appeared 

through his counsel, Stephen R. Jaffe. Third party appeared through its counsel, Richard 

M. Jacobson. Having read the papers filed by the parties and carefully considered their 

arguments and the relevant legal authority, and good cause appearing, the court hereby 

DENIES relator’s motion, for the following reasons.

BACKGROUND

A. The Trial Subpoena

On December 20, 2022, relator served third-party Hayward Unified School District 

(“HUSD”) with a subpoena to compel the production of documents at trial (the “trial 

subpoena”). Dkt. 166 at 10–13. Relator’s trial subpoena seeks Individualized Education 

Plan (“IEP”) records for every student enrolled at HUSD from January 1, 2015, through 

December 31, 2017, who received transportation services provided by and paid for by 

HUSD. The records sought cover three school years at HUSD. Valdez Decl. ¶ 6 (Dkt. 

Case 4:16-cv-06994-PJH Document 186 Filed 01/30/23 Page 1 of 6
2

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

Northern District of California

181-1 at 2). HUSD services approximately 2000 to 3000 special needs students each 

school year. Valdez Decl. ¶ 2 (Dkt. 181-1 at 2). Each year, between 700 and 1000 of 

these special needs students have IEPs indicating that transportation is a necessary 

service. Id.

HUSD Special Education Coordinator, Julia Valdez, conducted an exemplar 

search for eight random students identified by the Special Education Department as 

students with transportation identified as a requirement in their IEPs. Valdez Decl. 

¶ 7(a)–(j) (Dkt. 181-1 at 2–3). It took two hours for her to locate these students’ IEPs. Id.

The two hours did not include making any redactions as would be permitted by the trial 

subpoena. Id. To ensure compliance with the trial subpoena, similar efforts would be 

needed for the 700 to 1000 special education students receiving transportation services 

in each of the three years, with additional time needed for students who have exited 

HUSD whose files are in storage. Id. This means an IEP record search would have to 

be conducted for approximately 2,100 to 3000 students, and additional time would be 

required to perform redactions, photocopy, and compile each record. 

On January 3, 2023, HUSD served a timely objection to the trial subpoena on the 

bases that (1) the records sought are highly private education records of students and 

(2) production of the redacted records would impose substantial hardship on HUSD. Dkt. 

166 at 15–19. The instant motion to compel followed. Dkt. 166.

B. Relevant Procedural History

This False Claims Act case was filed on December 6, 2016. Dkt. 1. Relator’s 

current counsel commenced his representation of relator on March 29, 2019. Dkt. 21. On 

March 16, 2020, the case was unsealed after both federal and state governments 

declined to intervene. Dkt.33. Litigation began in earnest thereafter. HUSD, among 

other entities and individuals, was named in the original complaint but was dismissed as 

a defendant on March 15, 2021. Dkt. 109. After several rounds of motions to dismiss, 

relator filed a third amended complaint and the remaining four individual defendants 

answered on September 1, 2021. Dkt. 124. The first case management conference was 

Case 4:16-cv-06994-PJH Document 186 Filed 01/30/23 Page 2 of 6
3

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

Northern District of California

conducted on September 16, 2021, and a September 16, 2022, deadline for discovery 

was imposed, along with a March 6, 2023, trial date. Dkt. 130.

Relator complains that he has been seeking the student IEPs, the subject of the 

trial subpoena, from HUSD for six years. Yet no formal discovery request for the IEPs 

was propounded on any defendant; no discovery was actually taken except a PMK 

deposition of a HUSD employee on April 4, 2022; and no formal discovery motion to 

compel the production of the IEPs was made. The only discovery issue that relator

sought court intervention to resolve was contained in a discovery letter brief filed on 

February 3, 2022. Dkt. 140. Relator recognized in that brief that any discovery from 

HUSD would have to be obtained using third-party procedures because HUSD had been 

dismissed as a party. Because the superintendent of HUSD was still a defendant in the 

case, relator didn’t know whom to serve with any third-party discovery request. The court 

agreed that this presented a dilemma for relator and ordered defendant Wayne to identify 

the person who would accept service. Dkt. 142. Defendant complied on February 14, 

2022. Dkt. 143.

Relator’s first attempt to use Rule 45 procedures was a third-party subpoena

served on October 20, 2022. HUSD responded with the same objections it makes here. 

Relator’s attempt to get the matter before the court failed for failure to follow the local 

rules of this court, as explained at the hearing. Relator again served a third-party 

subpoena on HUSD on December 20, 2022. HUSD filed timely objections and relator

filed a proper motion to overrule the objections and for an order compelling compliance, 

the motion the court considers here.

Subsequent to the hearing on January 26, 2023, relator’s counsel filed on the 

court’s docket copies of several email exchanges between him and HUSD’s counsel. 

Dkt. 185. Since the exchanges took place during the mediation process, they are not 

properly part of the public record, and the court orders them SEALED. Nonetheless, the 

court reviewed the highlighted portions which relator’s counsel submitted to support his 

claim that he made an unequivocal request for the IEPs and that HUSD counsel agreed 

Case 4:16-cv-06994-PJH Document 186 Filed 01/30/23 Page 3 of 6
4

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

Northern District of California

to produce them. The emails reflect that on December 13, 2021, HUSD counsel asked 

for a couple of tailored informal documents requests from relator. Relator’s counsel 

immediately responded that he would send an informal document request but that HUSD

could start with the IEPs for the 2015 – 2017 school years. On December 14, 2021, 

relator’s counsel emailed an informal document request in which he expressly reserved 

the right to conduct formal discovery. On December 27, 2021, relator’s counsel emailed 

HUSD counsel inquiring whether a response was forthcoming. Later that same day, 

HUSD counsel responded that he had communicated the request to HUSD and was 

waiting to hear back. On January 14, 2022, HUSD counsel emailed relator’s counsel and 

the ADR office, that he had been attempting to obtain from HUSD the documents 

requested informally by relator but had not been successful.

From this history, the court concludes that relator’s counsel made a specific, 

informal request for the IEPs and that HUSD was aware of the request for the IEPs, but 

that HUSD would not produce the IEPs without a court order. HUSD counsel tried to 

obtain the IEPs from his client, but he could not produce these documents without 

HUSD’s willingness to locate, compile and release them. Because of the sensitive, 

private and confidential nature of IEPs for special education students who were all 

minors, HUSD would not disclose them absent a court order. HUSD maintained this 

position throughout the litigation. So, by January 2022, relator was on notice that the 

IEPs would not be produced informally. In February 2022, relator sought the court’s 

assistance in discovering the identity of which HUSD representative would accept service 

of a subpoena. Relator took a PMK deposition of an HUSD employee in April 2022 but

made no formal discovery request before discovery closed September 16, 2022, filed no 

discovery motion, and served the subject subpoena for the IEPs on HUSD on December 

20, 2022.

DISCUSSION

Rule 45 of the Federal Rules of Civil Procedure governs discovery from nonparties. Rule 45 provides that “the court for the district where compliance is required 

Case 4:16-cv-06994-PJH Document 186 Filed 01/30/23 Page 4 of 6
5

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

Northern District of California

must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; 

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); 

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver 

applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).

HUSD argues that the IEPs contain highly confidential personal information about 

special education students and are deserving of protection. HUSD does not claim that 

they are privileged. Relator recognizes that the documents are confidential but submits 

that the subpoena’s requirement for redaction of identifying information is sufficient to 

protect the privacy of the students. The court finds the subpoena is overly broad given 

what relator is seeking—whether individualized transportation was or was not approved. 

Relator has no need for, nor would it be appropriate to disclose the students’ medical 

information, educational progress, or any other information contained in these 

voluminous and detailed documents. Thus, if the documents were to be produced, they 

would have to be redacted in their entirety except for the two entries dealing with 

transportation.

HUSD also argues that the IEPs do not reflect the information that relator needs to 

support his case because they do not contain the names of the transportation providers 

or the reasons for selection of any particular provider. However, the court need not 

address this argument in view of the findings that follow.

Here, two Rule 45 factors are relevant for consideration, particularly in how they 

intertwine. Relator’s lack of diligence in seeking these records through formal discovery 

or an earlier third-party subpoena on HUSD is obvious given the above-described history. 

While the service of a subpoena on December 20, 2022, for production of documents at 

trial commencing nine weeks later would not necessarily be untimely under all 

circumstances, the court must examine the specific circumstances presented here—

namely whether the subpoena is timely given the volume of information sought. The 

Valdez declaration describes the nature of the search and explains that it took her two 

hours just to find the information for eight students. Valdez Decl. ¶ 7(a)–(j) (Dkt. 181-1 at 

Case 4:16-cv-06994-PJH Document 186 Filed 01/30/23 Page 5 of 6
6

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

Northern District of California

2–3). Given the estimates of the number of IEPs that would have to be found and 

searched, HUSD estimates that it would take 525 to 750 hours just to find the IEPs 

requested and longer if the students have exited the school system. Additional time 

would be needed to locate the information within each IEP responsive to the subpoena, 

redact all other information, photocopy, and compile all the records. The search for the 

IEPs alone would entail somewhere between 13 to 18 forty-hour work weeks for one staff 

member working fulltime on nothing but this project. Although relator’s counsel argued 

that based on his client’s deposition in a state case that the number of students was 

closer to 150 a year, he did not challenge the Valdez declaration’s calculations. The 

court concludes that compliance with the trial subpoena within the timeline necessary 

would require a herculean effort and place an undue burden on the school district. The 

court does not seek to penalize relator for the procrastination of his counsel, but the court 

is unwilling to impose the burden of this discovery on a third-party public school district 

which is no longer a party in this case, particularly given the amount of time relator had to 

obtain this information prior to trial. The court finds that pursuant to Rule 45 and under 

the circumstances of this case, the subpoena does not allow a reasonable time to comply 

and compliance would pose an undue burden on HUSD. 

CONCLUSION

For the foregoing reasons, the court DENIES relator’s motion to compel production 

of documents. The court sustains HUSD’s objections and QUASHES relator’s subpoena. 

Additionally, the court orders the document found at docket # 185 SEALED.

IT IS SO ORDERED.

Dated: January 30, 2023

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

United States District Judge

Case 4:16-cv-06994-PJH Document 186 Filed 01/30/23 Page 6 of 6