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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

HEENA SHIM-LARKIN, 

Plaintiff, 

vs. 

CITY OF NEW YORK, 

Defendant.

CASE NO. 17-mc-80019-YGR 

ORDER DENYING MOTION FOR RELIEF 

FROM NON-DISPOSITIVE PRETRIAL ORDER

Re: Dkt. No. 21 

Plaintiff brings this miscellaneous action in the Northern District of California to compel 

compliance with a subpoena issued against third-party Remind, a technology company located in 

this district, stemming from her pending litigation in the Southern District of New York 

(“SDNY”). (See Dkt. No. 1-1 at 10 (subpoena issued to Remind in Shim-Larkin v. City of New 

York, No. 16-CV-6099 (S.D.N.Y. Sept. 29, 2016)).) The case was originally assigned to 

Magistrate Judge Donna M. Ryu, where plaintiff filed a motion to compel compliance with her 

subpoena, for sanctions, and for transfer of the enforcement action to the SDNY. (Dkt. No. 5.)1

 

Magistrate Judge Ryu denied the latter two but granted in part plaintiff’s motion to compel. (Dkt. 

No. 20.) 

Now before the Court is plaintiff’s motion for relief from Magistrate Judge Ryu’s denial of 

her motion to transfer and denial in part of her motion to compel. (Dkt. No. 21.) Plaintiff does 

not seek relief from Magistrate Judge Ryu’s order denying her motion for sanctions. 

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 In a related action, Case No. 17-mc-80022, Remind also filed a motion to quash the 

subpoena and a motion to consolidate the cases. Magistrate Judge Ryu granted in part the motion 

to quash and denied the motion to consolidate as moot. (Dkt. No. 20.) Such orders are not at 

issue here. 
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Having carefully reviewed the pleadings, the papers submitted on this motion, Magistrate 

Judge Ryu’s order, and the transcript of the proceedings held on April 27, 2017, and for the 

reasons set forth more fully below, the Court DENIES plaintiff’s motion. 

I. BACKGROUND

In the underlying lawsuit in the SDNY, plaintiff is suing her former employer, the City of 

New York Department of Parks and Recreation for wrongful termination, discrimination, 

harassment in a hostile work environment, and other related claims. Relevant to this motion, 

plaintiff alleges that she, and others in the department, used a phone-based application developed 

by Remind to communicate with each other, and their supervisor, Marty Kravitz, during her 

employment. Plaintiff believes that such communications between Kravitz and other employees 

are relevant to establishing that Kravitz discriminated against her due to her race and her 

disabilities. 

On such bases, plaintiff issued a subpoena on Remind seeking: (1) “Every [sic] account 

information of M. Kravitz;” and (2) “[a]ll of his message history with others from 6/30/2015 

through 2/1/2016.” (Dkt. No. 6, Exhibit 1.) Kravitz’s message history indicated that he sent 

messages through Remind to at least 472 people. The record reflects that Remind worked with 

plaintiff to narrow such requests using specific search terms, and Remind subsequently produced 

documents responsive to those terms prior to October 25, 2016. (Dkt. No. 1-1 at 14.) Plaintiff, 

however, found such disclosures lacking, identifying certain information that she believed was 

missing2

 and demanding again that Remind produce Kravitz’s entire message history. (Dkt. No. 5 

at 7.) Additionally, the parties dispute what constitutes “account information.” Remind 

communicated to plaintiff that “account information” included only the user’s email address or 

 2

 At the hearing, plaintiff indicated that she had records of certain text messages from 

Kravitz that were not included in Remind’s disclosures, thus casting into doubt the completeness 

of Remind’s searches. Magistrate Judge Ryu and the parties identified the potential issue thus: 

Remind users can send texts either to other Remind users using their name or to non-Remind users 

using their phone number. When a text message is sent to a non-Remind user, therefore, a search 

using that person’s name would not necessarily produce text messages sent to that person. Rather, 

the search must be based on the phone number to which the Remind user was sending the 

message. Additionally, Remind allowed users to send group texts, and there was some indication 

that the search was not producing group messages. (Dkt. No. 25 at 10–11; 19–20.) 
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phone number, whereas plaintiff requested more data including the date he opened his account, his 

device type, and the operating system Kravitz used. (Dkt. No. 1-1 at 12–13.)3 

Magistrate Judge Ryu provided plaintiff the following relief: 

Counsel for Remind shall investigate whether Remind can search M. Kravitz’s 

message history with non-Remind users. If possible, Remind shall produce 

transcripts of Kravitz’s message history with Plaintiff’s phone number (provided 

at hearing) and Miguel Morel’s phone number (to be provided by Plaintiff to 

Remind’s counsel) for the time period 6/30/2015 through 2/1/2016. Remind shall 

include transcripts of messages from Kravitz to Morel even where Morel was not 

the only recipient (i.e., where Morel was a recipient of a group message from 

Kravitz). Remind’s counsel shall communicate directly with Plaintiff regarding a 

reasonable timeline for production, and Remind shall authenticate any 

information produced to Plaintiff in accordance with the court’s order. Remind 

shall also produce the phone number and email address associated with Kravitz’s 

Remind account. 

(Dkt. No. 20 at 1.) Remind represents that it has fully complied with Magistrate Judge Ryu’s 

order and has produced the “message history with the two named individuals.” (Dkt. No. 23 at 3.) 

II. LEGAL STANDARD

District courts review a magistrate judge’s factual determinations for clear error, and “the 

district court may only set aside those factual determinations if it is left with a “definite and firm 

conviction that a mistake has been committed.” E.E.O.C. v. Peters’ Bakery, 301 F.R.D. 482, 484 

(N.D. Cal. 2014) (quoting Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010)). 

“[T]he magistrate’s legal conclusions are reviewed de novo to determine whether they are contrary 

to law.” Id. (quoting Perry, 268 F.R.D. at 348). 

“When a discovery order centers on a magistrate’s determination of relevance, ‘the 

standard of review in most instances is not the explicit statutory language, but the clearly implicit 

standard of abuse of discretion.’” Id. at 484–85 (quoting Geophysical Sys. Corp. v. Raytheon Co., 

Inc., 117 F.R.D. 646, 647 (C.D. Cal. 1987)). District courts should not disturb the magistrate 

judge’s relevance determination except where based on “an erroneous conclusion of law or where 

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 At the April 27, 2017 hearing, plaintiff agreed that the disclosure of Kravitz’s phone 

number and email address would be sufficient. (Dkt. No. 25 at 17.) Remind represents that it has 

since produced the same to plaintiff. 
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the record contains no evidence on which [the magistrate] rationally could have based that 

decision.” Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 422 (C.D. Cal. 1999). 

III. DISCUSSION

A. Motion to Transfer 

Federal Rule of Civil Procedure 45(f) provides thus: “When the court where compliance is 

required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if 

the person subject to the subpoena consents or if the court finds exceptional circumstances.” “The 

proponent of transferring the motion to the issuing court bears the burden of showing ‘exceptional 

circumstances.’” Music Grp. Macao Commercial Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 984 

(N.D. Cal. 2015) (citation omitted). “‘The prime concern’ in deciding Rule 45(f) transfer motions 

‘should be avoiding burdens on local nonparties subject to subpoenas, and it should not be 

assumed that the issuing court is in a superior position to resolve subpoena-related motions.” Id. 

(citing Fed. R. Civ. P. 45(f) advisory comm. notes to 2013 amends.). 

Here, Remind does not consent to transfer of the motion. Thus, plaintiff bears the burden 

of demonstrating that exceptional circumstances existed for transferring such motion to the 

SDNY. In her motion for transfer, plaintiff argued only that (i) Remind has enough resources to 

defend the action in New York and (ii) the presiding judge in the SDNY is more familiar with the 

action. (Dkt. No. 5 at 3.) Magistrate Judge Ryu found such arguments unconvincing. (Dkt. No. 

25 at 2:20–24.) 

Plaintiff now raises arguments that were not before Magistrate Judge Ryu. Specifically, 

plaintiff argues that Remind’s refusal to provide all of the information she seeks constitutes a 

violation of New York’s Freedom of Information Law (“FOIL”). Additionally, plaintiff argues 

that she intends to amend her complaint in the SDNY action to add a conspiracy claim against 

Remind. 

Plaintiff does not persuade. First, plaintiff never raised such arguments before Magistrate 

Judge Ryu and cannot for the first time do so here. Greenhow v. Sec’y of Health & Human Servs., 

863 F.2d 633, 638–639 (9th Cir. 1988) (holding that arguments raised for the first time to the 

district court reviewing a magistrate’s report were waived explaining that the “Magistrates Act 
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was [not] intended to give litigants an opportunity to run one version of their case past the 

magistrate, then another past the district court”), overruled on other grounds by United States v. 

Hardesty, 977 F.2d 1347 (9th Cir. 1992). Second, even if such arguments were not waived, 

plaintiff fails to explain why such would constitute exceptional circumstances. If plaintiff can 

render Remind as a proper party in her pending action, she can obtain discovery from Remind in 

that forum at that time within that context. Plaintiff’s arguments here do not displace Remind’s 

interest, as a nonparty, in avoiding the burdens of participating in litigation in New York. 

Accordingly, the Court DENIES plaintiff’s motion for relief from Magistrate Judge Ryu’s 

order denying her motion to transfer. 

B. Motion to Compel 

Plaintiff’s subpoena sought Kravitz’s entire message history using the Remind application 

from June 30, 2015 through February 1, 2016. (Dkt. No. 5 at 4.) As previously discussed, 

Remind had provided plaintiff with some discovery in this regard, but plaintiff complained that 

such discovery was insufficient. At the hearing, Magistrate Judge Ryu compelled Remind to 

address specific issues raised by plaintiff, but did not compel Remind to produce all of Kravitz’s 

message history. (Dkt. No. 20.) 

Plaintiff now argues that such order violates FOIL and Federal Rule of Civil Procedure 

26(g)(B)(i), which provides that any discovery request, response, or objection must be consistent 

with the federal rules and “warranted by existing law or by a nonfrivolous argument for extending, 

modifying, reversing existing law, or for establishing new law.” 

Plaintiff, again, does not persuade. In the first instance, plaintiff did not raise such 

arguments before Magistrate Judge Ryu, and has, therefore, waived them as above. In any event, 

as plaintiff herself concedes, the public cannot make FOIL requests upon Remind because it is not 

a public entity. (Dkt. No. 21 at 4); see also Beechwood Restorative Care Ctr. v. Signor, 842 

N.E.2d 466, 469 (N.Y. 2005) (“The Legislature enacted FOIL to provide the public with a means 

of access to governmental records . . . .” (emphasis supplied) (citation omitted)). Thus, FOIL does 

not govern plaintiff’s discovery requests against Remind here. 
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Rather, Federal Rule of Civil Procedure 26(b) governs the scope of plaintiff’s discovery 

requests. Specifically: 

Parties may obtain discovery regarding any nonprivileged matter that is relevant 

to any party’s claim or defense and proportional to the needs of the case, 

considering the importance of the issues at stake in the action, the amount in 

controversy, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether the 

burden or expense of the proposed discovery outweighs its likely benefit. 

Fed. R. Civ. P. 26(b). Plaintiff has not demonstrated that her request for all of Kravitz’s message 

history from Remind satisfies the proportionality standard established in the Federal Rules of Civil 

Procedure. 

The Court, therefore, finds no grounds upon which to disturb Magistrate Judge Ryu’s order 

granting in part and denying in part plaintiff’s motion to compel. If Remind’s disclosures 

pursuant to that order remain lacking, plaintiff may seek further discovery from Remind, 

consistent with the Federal Rules of Civil Procedure. 

Accordingly, the Court DENIES plaintiff’s motion for relief from Magistrate Judge Ryu’s 

order regarding her motion to compel. 

IV. CONCLUSION

For the aforementioned reasons, the Court DENIES plaintiff’s motion for relief from a 

nondispositive order. 

This Order terminates Docket Number 21. 

IT IS SO ORDERED. 

Dated: July 17, 2017 

 YVONNE GONZALEZ ROGERS

 UNITED STATES DISTRICT COURT JUDGE