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1 Victoria R. Carradero (SBN 217885)
DUANE MORRIS LLP
2 260 Homer Avenue, Suite 202
Palo Alto, CA 94301-2777
3 Telephone: +1 650 847 4150
Fax: +1 650 847 4151
4 E-mail: vcarradero@duanemorris.com
5 Patricia McCausland (PA 84542)
DUANE MORRIS LLP
6 30 South 17th Street
Philadelphia, PA 19103-4196
7 Telephone: +1 215 979 1249
Fax: +1 215 501 5693
8 E-mail: PAMcCausland@duanemorris.com
9 (Pro Hac Vice Application forthcoming
for attorney Ms. McCausland)
10
Attorneys for Non-Party
11 GOOGLE LLC
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
FOR THE COUNTY OF SAN MATEO
14
OPEN TEXT INC., a Delaware Corporation, Case No. 21-civ-01470
15
Plaintiff, MEMORANDUM OF POINTS AND
16 AUTHORITIES IN SUPPORT OF
v. OPPOSITION OF NON-PARTY
17 GOOGLE LLC TO PLAINTIFF OPEN
MICHELLE BEASLEY, an individual, TEXT INC.’S AMENDED MOTION TO
18 COMPEL PRODUCTION OF
Defendant. BUSINESS RECORDS FROM NON-
19 PARTY DEPONENT GOOGLE LLC
20 DATE: April 5, 2024
TIME: 9:00 AM
21 DEPT: 24
22 Action Filed: March 17, 2021
Trial Date: March 17, 2025
23
24
AND RELATED CROSS-CLAIMS
25
26 ***This is being re-filed at the court's direction without attorney McCausland on the caption,
whose pro hac vice application is pending.
27
28 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 I. INTRODUCTION
2 Non-party Google LLC (“Google”) is before this Court on what the moving party,
3 plaintiff/cross-defendant Open Text Inc. (“Open Text”), has conceded is a premature motion to
4 compel, given the pendency of a Motion to Quash filed by defendant/cross-plaintiff Michelle
5 Beasley (“Beasley”). That Motion to Quash had been scheduled for argument before the Court
6 today; however, the Court has now continued the hearing on Beasley’s Motion to Quash to May 31,
7 2024 – almost two months after Open Text’s Motion to Compel against Google currently is
8 scheduled to be heard on April 5, 2024. (See Docket.) This decision by the Court illustrates precisely
9 why Open Text should not have involved Google in this matter as and when it did. Very simply, the
10 Court’s resolution of Beasley’s Motion to Compel could entirely moot or modify the subpoena
11 issued to Google. Which is, of course, why Open Text has acknowledged that Google cannot
12 properly produce documents in response to its subpoena while Beasley’s Motion to Quash is
13 pending. For this reason, Google respectfully submits that the Court should defer any further
14 proceedings on Open Text’s Motion to Compel pending a resolution of the Motion to Quash.
15 Moreover, even were Open Text’s motion procedurally warranted at this juncture (which it is
16 not), it is substantively flawed. The law is clear that non-parties do not have the same burdens and
17 obligations as the parties to litigation do. See, e.g., Calcor Space Facility v. Superior Court, 53 Cal.
18 App. 4th 216, 224 (1997). Nevertheless, rather than pursuing and compelling information from
19 Beasley, Open Text has chosen to improperly and unnecessarily burden Google. 1 Although Open
20 Text, after issuing an overbroad subpoena to Google seeking “any and all” documents throughout
21 the company on five (5) categories of information, now appears to narrow certain of its requests,
22
1
Open Text’s Opposition to Beasley’s Motion to Quash (“Pl.’s Opp.”), filed March 11, as well as its
23 papers on the instant motion, filed March 1, confirm that it has not pursued and/or exhausted efforts
to obtain information from Beasley before (or since) turning to Google. For example, although
24 Beasley refused to answer questions in her deposition about her employment at Google, Open Text
did not move to compel her to respond. (Pl.’s Opp. at 3:3-15; Pl.’s Mem. of Points & Auth. in Supp.
25 of Mot. to Compel (“Mem.”) at 4:21-5:3).) Further, Open Text did not seek documents from Beasley
until after it served her on December 14, 2023 with consumer notice for the subpoena to Google.
26 (Pl.’s Opp. at 3:17-21, 5:14-21; Pl.’s Mem. at 3:17-21, 5:4-6.) As of now, it also does not appear that
Open Text has moved to compel further responses from Beasley in response to its Request for
27 Production of Documents served on December 15, 2023. (See Docket.)
28 1 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 Open Text still seeks documents of which all, or nearly all, can be obtained directly from Beasley.
2 Further, most of its requests are, at best, marginally relevant to the claims, cross-claims, and
3 defenses that Google understands the parties to have asserted here. And of the four requests on
4 which Open Text now moves, at least one (even as Open Text has now narrowed it) would involve
5 substantial burden insofar as it would require Google to search for “any communications,” including
6 potentially email, voicemail, text and “chat” messages, between Beasley (using one or more email
7 accounts, chat channels, and/or phone numbers, none of which are identified in the subpoena) and
8 anyone at Google over an almost nine-month period. 2
9 Open Text’s apparent reason for seeking to burden Google in this manner is because it wants
10 to explore if Beasley might have spoken to someone at Google about why she was leaving Open
11 Text. This is not a sufficient basis for compelling Google, as a non-party, to incur the time and
12 burden involved in complying with Open Text’s defective Subpoena. Nor does Open Text’s interest
13 in whether Beasley mitigated her damages justify its other, overbroad requests to Google, including
14 for all documents pertaining to Beasley’s hiring (again, even putting aside that Beasley could
15 provide much, if not all, of this information herself).
16 Should the Court conclude it is relevant to the underlying merits of the action, Google is not
17 opposed to producing basic personnel information to the extent reasonably accessible and available,
18 such as a summary of Beasley’s recruiting/hiring data, her offer letter, job description, and wage
19 statements. However, in all other respects, including but not limited to any demand that Google
20 search company-wide for “any and all documents” or “any and all communications” pertaining to
21 Beasley, the Motion to Compel should be denied.
22 II. SUMMARY OF FACTUAL AND PROCEDURAL BACKGROUND
23 Beasley is a current employee of Google, whose prior employer, Open Text, has sued her to
24 recover $28,339.70 it contends it is owed due to her resignation from employment effective June 30,
25 2020. (See generally Sec. Am. Compl.) Beasley has cross-claimed for violations of the federal Fair
26 2
Even if such communications once existed (and, as discussed below, Open Text offers no reason to
believe that they did), given the passage of time and Google’s standard practices, they may not have
27 been retained.
28 2 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 Debt Collection Practices Act, the California Labor Code and Unfair Competition Law, wrongful
2 termination, and invasion of privacy. (See generally id.)
3 None of this has anything to do with Google. And yet, in the middle of the year-end holidays,
4 on December 22, 2023, Open Text served on Google a Deposition Subpoena for Production of
5 Business Records (the “Subpoena”), setting out the following requests:
6 Request No. 1:
7 Any and all DOCUMENTS concerning DEFENDANT’s application for employment
with YOU, hiring by YOU and/or the terms and conditions of her employment with
8 YOU, including without limitation, applications for employment, resumes, job
descriptions, interview dates, offer letters, employment agreements or contracts and
9 commission plans. 3
10 Request No. 2:
11 Any and all COMMUNICATIONS, including Google Chat Messages and other direct
messages and emails, between YOU and DEFENDANT occurring between October
12 8, 2019 and June 30, 2023, concerning DEFENDANT’s application for employment
with You.
13
Request No. 3:
14
Any and all DOCUMENTS reflecting wages DEFENDANT earned or was eligible to
15 earn since she commenced employment with YOU, including without limitation,
DOCUMENTS reflecting wage statements, time sheets, paychecks, paystubs, W-2s,
16 bonus or incentive compensation opportunities, pay increases, and/or pay decreases.
17 Request No. 4:
18 Any and all DOCUMENTS reflecting benefits DEFENDANT was offered or
otherwise eligible for, including but not limited to, DOCUMENTS reflecting health,
19 dental, vision, life, disability or other insurance benefits, 401k benefits, plan
documents, agreements, stock or equity options or grants, exercise of any vested
20 options/grants, pension/retirement benefits and/or workers compensation benefits
received.
21
Request No. 5:
22
Any and all DOCUMENTS reflecting PLAINTIFF’s job duties and responsibilities
23 and/or changes to PLAINTIFF’s job duties and responsibilities. 4
24
25 3
The Subpoena defines the term “DEFENDANT” to mean Beasley. (Wong Decl. Ex. A.)
26 4
The Subpoena does not define the term “PLAINTIFF.” (Wong Decl. Ex. A.) Nor, in the context of
Request 5, does it make any sense to interpret that term to refer to the plaintiff in this action, Open
27 Text.
28 3 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 Request No. 6:
2 Any and all DOCUMENTS reflecting any charge, grievance, complaint, or lawsuit
ever made or filed by DEFENDANT against YOU or any of YOUR employees.
3
(Wong Decl. Ex. A.)
4
On or about December 21, 2023, Beasley served on Google a Notice to Stay Document
5
Production or Release Pending Court Order on Ruling on Customer/Employee’s Intended Motion to
6
Quash (the “Notice”). On December 28, 2023, Beasley filed a Notice of Motion and Motion to
7
Quash Subpoena Seeking Employee Evaluations and Disciplinary Records or, in the Alternative, for
8
a Protective Order, the hearing on which has now been continued to May 31, 2024. As Google was
9
closed for part of the holidays and had minimal staffing in light of the holidays, Google promptly
10
served objections to the Subpoena on January 5, 2024. (Wong Decl., Ex. B).
11
On Wednesday, January 24, 2024, Open Text wrote to Google offering the following
12
“refinement[s]” of the record requests set out in its Subpoena:
13
Request No. 1
14
Open Text seeks specific documents and communications surrounding Ms. Beasley’s
15 employment with Google as noted in the Request. This would include documents
sufficient to show when Ms. Beasley first engaged in discussions with Google for
16 employment. The applicable time period would be August 1, 2019 to June 16, 2020.
17 Request No. 2
18 Ms. Beasley testified that she learned about the opportunity at Google from James
Harding, a Google employee. Open Text seeks those communications as well as
19 emails and communications surrounding Ms. Beasley’s initial interview with Google,
reasons(s) for leaving her employment at Open Text, and acceptance of employment
20 with Google.
21 Request No. 3
22 Open Text seeks Ms. Beasley’s Google pay stubs or documents sufficient to show her
earned wages from July 2020 to the present.
23
Request No. 4
24
Open Text seeks documents sufficient to show the benefits Ms. Beasley receives from
25 Google as part of its wage loss analysis.
26
27
28 4 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 Request No. 5
2 Open Text seeks a copy of Ms. Beasley’s job description in order to determine
whether her position at Google is comparable to that which she engaged in at Open
3 Text.
4 (Wong Decl. Ex. D. 5)
5 Notwithstanding Beasley’s filing of the Motion to Quash, and despite affirmatively
6 acknowledging in its January 24, 2024 letter that Beasley’s Motion to Quash “stays the production of
7 the subpoenaed records” (id. at 1), just three business days later, on January 29, 2024, Open Text
8 filed a Notice of Motion and Motion to Compel Production of Business Records from Non-Party
9 Google LLC (without a brief or separate statement). (See Docket.) This was then followed by an
10 Amended Notice of Motion and Motion to Compel Production of Business Records from Non-Party
11 Deponent Google LLC (this time with a brief, a separate statement, and a supplemental Wong
12 declaration) (the “Amended Motion to Compel”) on March 1, 2024. (See id.)
13 In its Amended Motion to Compel, Open Text now appears to seek to compel Google to
14 produce documents responsive to Request 1 as originally set out in its Subpoena, to Request 2 as set
15 out in its Subpoena but for a narrower period of time, and to Requests 3 and 5 as modified in its
16 January 24 letter to Google. (Am. Not. of Mot. at 2; Pl.’s Sep. Stmt. at 4-5 (Request No. 1), 7
17 (Request No. 2), 8 (Request No. 3), and 10 (Request No. 5).) Regardless, whether as originally
18 drafted or as modified, Google should not be involved in this matter.
19 III. LEGAL ARGUMENT
20 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor
Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223, 61 Cal.Rptr.2d 567
21 (Calcor).) In general, “any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the pending action or to
22 the determination of any motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to the discovery of
23 admissible evidence.” (Code Civ. Proc., § 2017.010.) To meet this standard, a party
seeking to compel production of records from a nonparty must articulate specific facts
24 justifying the discovery sought; it may not rely on mere generalities. (Calcor, at p.
224, 61 Cal.Rptr.2d 567.) In assessing the party’s proffered justification, courts must
25
5
Open Text had previously communicated to Google that it was withdrawing Request No. 6 in the
26 original subpoena (Pl.’s Mem. at 3 n.2) and now does not move on Request No. 4 (id. at 2
(requesting “an order compelling the production of the following categories of documents reflected
27 in Request Nos. 1-3 and 5 of the Google Subpoena”).
28 5 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 keep in mind the more limited scope of discovery available from nonparties. (See
Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 366, fn. 6, 64
2 Cal.Rptr.3d 434, 165 P.3d 154.)
3 Board of Registered Nursing v. Superior Court, 59 Cal. App. 5th 1011, 1039 (2021). Open Text has
4 failed to meet these standards.
5 As a threshold matter, Open Text implicitly concedes that part of its duty to minimize the
6 burdens of discovery imposed on Google as a non-party to this action requires that it have made
7 reasonable efforts to obtain this information from Beasley. (Pl.’s Mem. at 4-5.) Yet, its attempts, or
8 lack thereof, to do so have been entirely insufficient.
9 First, Open Text contends that it needs information from Google because Beasley refused to
10 testify in response to certain questions posed at her deposition in July 2023. However, it appears that
11 Open Text made no effort – either during Beasley’s deposition or in the many months after – to seek
12 any relief on that front. (Pl.’s Mem. at 4-5; see also Wong Supp. Decl. Ex. F.) Having failed to
13 pursue its rights as against Beasley in a timely manner following her deposition, Open Text should
14 not be permitted to now cure that failure at Google’s expense.
15 Second, Open Text contends it needs information because Beasley has not responded to the
16 requests for production it directed to her and which “mimick[]” the requests directed to Google,
17 (Pl.’s Mem. at 5.) However, Open Text served its Subpoena on Google on December 22, 2023 –
18 weeks before Beasley’s responses to Open Text’s Requests for Production were due. Indeed, Open
19 Text only served its Request for Production on Beasley after it served Beasley with consumer notice
20 of the Subpoena to Google. (See Pl.’s Opp. at 3:17-21, 5:14-21; Pl.’s Mem. at 3:17-21, 5:4-6.) As
21 such, any suggestion that Open Text had no choice but to issue its Subpoena to Google in December
22 is disingenuous at best.
23 Third, as Open Text notes, the parties to this case continue to disagree about whether Beasley
24 has valid objections to Open Text’s Subpoena to Google or its Requests for Production directed to
25 her and whether Open Text is entitled to the information requested. (Pl.’s Mem. at 5.) Such
26 unresolved disagreements are precisely why Google has not responded to the Subpoena and should
27
28 6 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 not have been required to respond to a premature Motion to Compel. 6
2 Turning to the substance of Open Text’s requests to Google, Open Text’s papers are not
3 always clear on the question of whether it is seeking to compel responses to its requests as originally
4 issued or as narrowed in its January 24, 2024 correspondence to Google (thus creating yet another
5 burden for Google in attempting to identify and respond appropriately). Relying on Open Text’s
6 Amended Notice of Motion and its Separate Statement, however, it appears that:
7 • As to Request 1 – seeking “any and all DOCUMENTS concerning DEFENDANT’s
application for employment with YOU, hiring by YOU and/or the terms and conditions
8 of her employment with YOU, including without limitation, applications for
employment, resumes, job descriptions, interview dates, offer letters, employment
9 agreements or contracts and commission plans” – Open Text is moving on the request as
originally set forth in its Subpoena.
10
• As to Request 2 – seeking “Any and all COMMUNICATIONS, including Google Chat
11 Messages and other direct messages and emails, between YOU and DEFENDANT
occurring between October 8, 2019 and June 30, 2023, concerning DEFENDANT’s
12 application for employment with YOU” – Open Text is willing to limit the time period of
its request to October 8, 2019 to June 30, 2020 (thus shaving three years off the request
13 as set forth in its Subpoena) but without otherwise narrowing the request and without
identifying what custodians at Google are potentially at issue.
14
• And as to Requests 3 and 5 – seeking, respectively, “Any and all DOCUMENTS
15 reflecting wages DEFENDANT earned or was eligible to earn since she commenced
employment with YOU, including without limitation, DOCUMENTS reflecting wage
16 statements, time sheets, paychecks, paystubs, W-2s, bonus or incentive compensation
opportunities, pay increases, and/or pay decrease” and “Any and all DOCUMENTS
17 reflecting PLAINTIFF’S job duties and responsibilities and/or and change to
PLAINTIFF’S job duties and responsibilities” – Open Text is moving on its request as
18 narrowed in its January 24 letter to Google. 7
19
6
Open Text asserts that Google’s objections to the Subpoena “indicate a court order is required for it
20 to proceed” but does not point to any statement by Google in support of that assertion. (Pl.’s Mem. at
5.) To the extent Open Text intended this statement to mean that Google will not produce documents
21 in response to the Subpoena while Beasley’s Motion to Quash remains pending, it is correct. As
Open Text itself has acknowledged, Google cannot properly produce documents responsive to the
22 Subpoena until that Motion is resolved. To the extent Open Text was implying that Google took the
position it would not respond to the Subpoena absent an order compelling it to do so, there is a
23 reason Open Text fails to point to any statement by Google in support of that claim. Google never
took such a position. Rather, Google was complying with its obligations to protect the privacy rights
24 of its employees, as well as protecting its own rights not to be unnecessarily burdened by non-party
discovery.
25
7
In setting out its position in its Amended Notice of Motion, Open Text does not address Request 5
26 as a standalone request but, instead, tried to rely on its request for Beasley’s job description
embedded in Request 1 (Am. Not. of Mot. at 2) – presumably because Open Text has now realized
27 that Request 5 does not actually request a job description for Beasley. See nn. 4-5, supra.
28 7 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 (See Am. Not. of Mot. at 2; Pl.’s Sep. Stmt. at 4-5 (Req. No. 1), 7 (Req. No. 2), 8 (Req. No. 3), and
2 10 (Req. No. 5).)
3 Further, and regardless of the precise scope of Open Text’s requests, it has still failed to
4 comply with Code of Civil Procedure Section 2020.410(a), which requires that “[a] deposition
5 subpoena” commanding the production of business “designate the business records to be produced
6 either by specifically describing each individual item or by reasonably particularizing each category
7 of item.” A request for “any and all documents” reflecting or concerning multiple different subjects
8 (Request No. 1) and a request for “any communications” (including but not limited to emails, texts,
9 chats, voicemails, and even “social media messages”) between Beasley and anyone at Google over a
10 nine-month period (Request No. 2) do not come close to satisfying this particularity requirement.
11 Nor has Open Text offered the specific factual or legal justification required for discovery sought
12 from a non-party. Rather, it relies on “mere generalities” that are not sufficient. Calcor, 53 Cal. App.
13 4th at 224.
14 For instance, Open Text attempts to support its requests for information by pointing to a case
15 on damages and the “measure of recovery.” (Pl.’s Mem. at 7; see also Pl.’s Separate Stmt. at 4.) But
16 while that rationale may explain Open Text’s request for “documents sufficient to show the wages
17 Beasley earned” at Google, Beasley herself should be able to provide that information (whether in
18 response to deposition questions, form interrogatories, special interrogatories, and/or Requests for
19 Production that should have been issued long ago). Further, that rationale does nothing to support
20 Open Text’s requests in the Subpoena for “any and all documents.”
21 In addition, even if Open Text has decided now to narrow its requests (or at least some of
22 them), its proffered rationale is similarly far removed from demonstrating the relevance of:
23 • Documents concerning Beasley’s application for employment with Google, hiring by
Google and/or the terms and conditions of her employment with Google, including
24 her resume, job description, interview dates, offer letters, employment agreements,
and commission plans; and
25
• Communications between Google and Beasley from October 8, 2019 to June 30,
26 2020, concerning her application for employment, including but not limited to, her
initial interview, reasons for leaving her employment with Open Text, and/or
27 acceptance of employment with Google.
28 8 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 (Am. Not. of Mot. at 2.) Again, this is information and documents that Open Text can obtain from
2 Beasley.
3 As to Open Text’s interest in what Beasley possibly might have said in the course of her
4 discussions with Google about her departure from Open Text, Open Text notably does not aver that
5 it has any basis in fact to believe that any such communications actually occurred and if they
6 occurred Beasley might have communicated anything of substance about her reasons for leaving
7 Open Text, or even that any such communications might have been memorialized. Open Text merely
8 theorizes that such communications might exist, which is not a sufficient basis to burden a non-party
9 like Google. See Bd. of Reg. Nursing, 59 Cal. App. 5th 1011, 1938 (“[A] party seeking to compel
10 production of records from a nonparty must articulate specific facts justifying the discovery sought;
11 it may not rely on mere generalities.”); Calcor, 53 Cal. App. 4th at 224, (vacating order compelling
12 production where “the justifications offered for the production [were] mere generalities” that did not
13 warrant imposition of significant burden on non-party).
14 This is all the more true where a party is seeking ESI, as Open Text does here. See Park v.
15 Law Offices of Tracey Buck-Walsh, 73 Cal. App. 5th 179, 189 (2021); see also Code Civ. Proc.
16 § 1985.8(i)(1)-(3); id. § 1985.8(k) (“A party serving a subpoena requiring the production of
17 electronically stored information shall take reasonable steps to avoid imposing undue burden or
18 expense on a person subject to the subpoena.”); id. § 1985.8(l) (“An order of the court requiring
19 compliance with a subpoena issued under this section shall protect a person who is neither a party
20 nor a party’s officer from undue burden or expense resulting from compliance.”).
21 Finally, while Open Text argues it is entitled to seek discovery “via multiple avenues,” the
22 cases it cites for that proposition are inapposite. Carter v. Superior Court, 218 Cal. App. 3d 994
23 (1990), involved discovery directed to a party opponent, while Hecht, Solberg, Robinson, Goldberg
24 & Bagley LLP v. Superior Court, 137 Cal. App. 4th 579, 584 (2006) involved discovery directed to a
25 non-party whose relationship with the plaintiff in the case was directly at issue where the plaintiffs
26 was suing one set of attorneys “for damages to be measured by the lost recovery allegedly caused by
27 [his] former counsel,” to whom the subpoena was directed. Nothing in those cases suggests it is
28 9 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
1 appropriate for a party to litigation to shift the burdens and expenses of that litigation to a non-party
2 with no role in, or connection to, the litigation beyond mere happenstance and simply because it
3 hopes the non-party will prove easier to deal with than its opponent.8 Open Text’s Motion to Compel
4 should be denied.
5 IV. CONCLUSION
6 Google respectfully requests that the Court deny Open Text’s Motion to Compel the
7 Subpoena to Google.
8
Respectfully submitted,
9
Dated: March 22, 2024 DUANE MORRIS LLP
10
11
By: Victoria R. Carradero
12
Attorneys for Non-Party GOOGLE LLC
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26 8
As for Open Text’s reliance on Hill v. NCAA, 7 Cal. 4th 1 (1994), and Williams v. Superior Court,
3 Cal. 5th 531 (2017), any argument as to Beasley’s privacy rights is properly made in the context of
27 Beasley’s Motion to Quash.
28 10 CASE NO. 21-cv-01470
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE
LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS
RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC
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1 Victoria R. Carradero (SBN 217885) DUANE MORRIS LLP 2 260 Homer Avenue, Suite 202 Palo Alto, CA 94301-2777 3 Telephone: +1 650 847 4150 Fax: +1 650 847 4151 4 E-mail: vcarradero@duanemorris.com 5 Patricia McCausland (PA 84542) DUANE MORRIS LLP 6 30 South 17th Street Philadelphia, PA 19103-4196 7 Telephone: +1 215 979 1249 Fax: +1 215 501 5693 8 E-mail: PAMcCausland@duanemorris.com 9 (Pro Hac Vice Application forthcoming for attorney Ms. McCausland) 10 Attorneys for Non-Party 11 GOOGLE LLC 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN MATEO 14 OPEN TEXT INC., a Delaware Corporation, Case No. 21-civ-01470 15 Plaintiff, MEMORANDUM OF POINTS AND 16 AUTHORITIES IN SUPPORT OF v. OPPOSITION OF NON-PARTY 17 GOOGLE LLC TO PLAINTIFF OPEN MICHELLE BEASLEY, an individual, TEXT INC.’S AMENDED MOTION TO 18 COMPEL PRODUCTION OF Defendant. BUSINESS RECORDS FROM NON- 19 PARTY DEPONENT GOOGLE LLC 20 DATE: April 5, 2024 TIME: 9:00 AM 21 DEPT: 24 22 Action Filed: March 17, 2021 Trial Date: March 17, 2025 23 24 AND RELATED CROSS-CLAIMS 25 26 ***This is being re-filed at the court's direction without attorney McCausland on the caption, whose pro hac vice application is pending. 27 28 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 I. INTRODUCTION 2 Non-party Google LLC (“Google”) is before this Court on what the moving party, 3 plaintiff/cross-defendant Open Text Inc. (“Open Text”), has conceded is a premature motion to 4 compel, given the pendency of a Motion to Quash filed by defendant/cross-plaintiff Michelle 5 Beasley (“Beasley”). That Motion to Quash had been scheduled for argument before the Court 6 today; however, the Court has now continued the hearing on Beasley’s Motion to Quash to May 31, 7 2024 – almost two months after Open Text’s Motion to Compel against Google currently is 8 scheduled to be heard on April 5, 2024. (See Docket.) This decision by the Court illustrates precisely 9 why Open Text should not have involved Google in this matter as and when it did. Very simply, the 10 Court’s resolution of Beasley’s Motion to Compel could entirely moot or modify the subpoena 11 issued to Google. Which is, of course, why Open Text has acknowledged that Google cannot 12 properly produce documents in response to its subpoena while Beasley’s Motion to Quash is 13 pending. For this reason, Google respectfully submits that the Court should defer any further 14 proceedings on Open Text’s Motion to Compel pending a resolution of the Motion to Quash. 15 Moreover, even were Open Text’s motion procedurally warranted at this juncture (which it is 16 not), it is substantively flawed. The law is clear that non-parties do not have the same burdens and 17 obligations as the parties to litigation do. See, e.g., Calcor Space Facility v. Superior Court, 53 Cal. 18 App. 4th 216, 224 (1997). Nevertheless, rather than pursuing and compelling information from 19 Beasley, Open Text has chosen to improperly and unnecessarily burden Google. 1 Although Open 20 Text, after issuing an overbroad subpoena to Google seeking “any and all” documents throughout 21 the company on five (5) categories of information, now appears to narrow certain of its requests, 22 1 Open Text’s Opposition to Beasley’s Motion to Quash (“Pl.’s Opp.”), filed March 11, as well as its 23 papers on the instant motion, filed March 1, confirm that it has not pursued and/or exhausted efforts to obtain information from Beasley before (or since) turning to Google. For example, although 24 Beasley refused to answer questions in her deposition about her employment at Google, Open Text did not move to compel her to respond. (Pl.’s Opp. at 3:3-15; Pl.’s Mem. of Points & Auth. in Supp. 25 of Mot. to Compel (“Mem.”) at 4:21-5:3).) Further, Open Text did not seek documents from Beasley until after it served her on December 14, 2023 with consumer notice for the subpoena to Google. 26 (Pl.’s Opp. at 3:17-21, 5:14-21; Pl.’s Mem. at 3:17-21, 5:4-6.) As of now, it also does not appear that Open Text has moved to compel further responses from Beasley in response to its Request for 27 Production of Documents served on December 15, 2023. (See Docket.) 28 1 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 Open Text still seeks documents of which all, or nearly all, can be obtained directly from Beasley. 2 Further, most of its requests are, at best, marginally relevant to the claims, cross-claims, and 3 defenses that Google understands the parties to have asserted here. And of the four requests on 4 which Open Text now moves, at least one (even as Open Text has now narrowed it) would involve 5 substantial burden insofar as it would require Google to search for “any communications,” including 6 potentially email, voicemail, text and “chat” messages, between Beasley (using one or more email 7 accounts, chat channels, and/or phone numbers, none of which are identified in the subpoena) and 8 anyone at Google over an almost nine-month period. 2 9 Open Text’s apparent reason for seeking to burden Google in this manner is because it wants 10 to explore if Beasley might have spoken to someone at Google about why she was leaving Open 11 Text. This is not a sufficient basis for compelling Google, as a non-party, to incur the time and 12 burden involved in complying with Open Text’s defective Subpoena. Nor does Open Text’s interest 13 in whether Beasley mitigated her damages justify its other, overbroad requests to Google, including 14 for all documents pertaining to Beasley’s hiring (again, even putting aside that Beasley could 15 provide much, if not all, of this information herself). 16 Should the Court conclude it is relevant to the underlying merits of the action, Google is not 17 opposed to producing basic personnel information to the extent reasonably accessible and available, 18 such as a summary of Beasley’s recruiting/hiring data, her offer letter, job description, and wage 19 statements. However, in all other respects, including but not limited to any demand that Google 20 search company-wide for “any and all documents” or “any and all communications” pertaining to 21 Beasley, the Motion to Compel should be denied. 22 II. SUMMARY OF FACTUAL AND PROCEDURAL BACKGROUND 23 Beasley is a current employee of Google, whose prior employer, Open Text, has sued her to 24 recover $28,339.70 it contends it is owed due to her resignation from employment effective June 30, 25 2020. (See generally Sec. Am. Compl.) Beasley has cross-claimed for violations of the federal Fair 26 2 Even if such communications once existed (and, as discussed below, Open Text offers no reason to believe that they did), given the passage of time and Google’s standard practices, they may not have 27 been retained. 28 2 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 Debt Collection Practices Act, the California Labor Code and Unfair Competition Law, wrongful 2 termination, and invasion of privacy. (See generally id.) 3 None of this has anything to do with Google. And yet, in the middle of the year-end holidays, 4 on December 22, 2023, Open Text served on Google a Deposition Subpoena for Production of 5 Business Records (the “Subpoena”), setting out the following requests: 6 Request No. 1: 7 Any and all DOCUMENTS concerning DEFENDANT’s application for employment with YOU, hiring by YOU and/or the terms and conditions of her employment with 8 YOU, including without limitation, applications for employment, resumes, job descriptions, interview dates, offer letters, employment agreements or contracts and 9 commission plans. 3 10 Request No. 2: 11 Any and all COMMUNICATIONS, including Google Chat Messages and other direct messages and emails, between YOU and DEFENDANT occurring between October 12 8, 2019 and June 30, 2023, concerning DEFENDANT’s application for employment with You. 13 Request No. 3: 14 Any and all DOCUMENTS reflecting wages DEFENDANT earned or was eligible to 15 earn since she commenced employment with YOU, including without limitation, DOCUMENTS reflecting wage statements, time sheets, paychecks, paystubs, W-2s, 16 bonus or incentive compensation opportunities, pay increases, and/or pay decreases. 17 Request No. 4: 18 Any and all DOCUMENTS reflecting benefits DEFENDANT was offered or otherwise eligible for, including but not limited to, DOCUMENTS reflecting health, 19 dental, vision, life, disability or other insurance benefits, 401k benefits, plan documents, agreements, stock or equity options or grants, exercise of any vested 20 options/grants, pension/retirement benefits and/or workers compensation benefits received. 21 Request No. 5: 22 Any and all DOCUMENTS reflecting PLAINTIFF’s job duties and responsibilities 23 and/or changes to PLAINTIFF’s job duties and responsibilities. 4 24 25 3 The Subpoena defines the term “DEFENDANT” to mean Beasley. (Wong Decl. Ex. A.) 26 4 The Subpoena does not define the term “PLAINTIFF.” (Wong Decl. Ex. A.) Nor, in the context of Request 5, does it make any sense to interpret that term to refer to the plaintiff in this action, Open 27 Text. 28 3 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 Request No. 6: 2 Any and all DOCUMENTS reflecting any charge, grievance, complaint, or lawsuit ever made or filed by DEFENDANT against YOU or any of YOUR employees. 3 (Wong Decl. Ex. A.) 4 On or about December 21, 2023, Beasley served on Google a Notice to Stay Document 5 Production or Release Pending Court Order on Ruling on Customer/Employee’s Intended Motion to 6 Quash (the “Notice”). On December 28, 2023, Beasley filed a Notice of Motion and Motion to 7 Quash Subpoena Seeking Employee Evaluations and Disciplinary Records or, in the Alternative, for 8 a Protective Order, the hearing on which has now been continued to May 31, 2024. As Google was 9 closed for part of the holidays and had minimal staffing in light of the holidays, Google promptly 10 served objections to the Subpoena on January 5, 2024. (Wong Decl., Ex. B). 11 On Wednesday, January 24, 2024, Open Text wrote to Google offering the following 12 “refinement[s]” of the record requests set out in its Subpoena: 13 Request No. 1 14 Open Text seeks specific documents and communications surrounding Ms. Beasley’s 15 employment with Google as noted in the Request. This would include documents sufficient to show when Ms. Beasley first engaged in discussions with Google for 16 employment. The applicable time period would be August 1, 2019 to June 16, 2020. 17 Request No. 2 18 Ms. Beasley testified that she learned about the opportunity at Google from James Harding, a Google employee. Open Text seeks those communications as well as 19 emails and communications surrounding Ms. Beasley’s initial interview with Google, reasons(s) for leaving her employment at Open Text, and acceptance of employment 20 with Google. 21 Request No. 3 22 Open Text seeks Ms. Beasley’s Google pay stubs or documents sufficient to show her earned wages from July 2020 to the present. 23 Request No. 4 24 Open Text seeks documents sufficient to show the benefits Ms. Beasley receives from 25 Google as part of its wage loss analysis. 26 27 28 4 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 Request No. 5 2 Open Text seeks a copy of Ms. Beasley’s job description in order to determine whether her position at Google is comparable to that which she engaged in at Open 3 Text. 4 (Wong Decl. Ex. D. 5) 5 Notwithstanding Beasley’s filing of the Motion to Quash, and despite affirmatively 6 acknowledging in its January 24, 2024 letter that Beasley’s Motion to Quash “stays the production of 7 the subpoenaed records” (id. at 1), just three business days later, on January 29, 2024, Open Text 8 filed a Notice of Motion and Motion to Compel Production of Business Records from Non-Party 9 Google LLC (without a brief or separate statement). (See Docket.) This was then followed by an 10 Amended Notice of Motion and Motion to Compel Production of Business Records from Non-Party 11 Deponent Google LLC (this time with a brief, a separate statement, and a supplemental Wong 12 declaration) (the “Amended Motion to Compel”) on March 1, 2024. (See id.) 13 In its Amended Motion to Compel, Open Text now appears to seek to compel Google to 14 produce documents responsive to Request 1 as originally set out in its Subpoena, to Request 2 as set 15 out in its Subpoena but for a narrower period of time, and to Requests 3 and 5 as modified in its 16 January 24 letter to Google. (Am. Not. of Mot. at 2; Pl.’s Sep. Stmt. at 4-5 (Request No. 1), 7 17 (Request No. 2), 8 (Request No. 3), and 10 (Request No. 5).) Regardless, whether as originally 18 drafted or as modified, Google should not be involved in this matter. 19 III. LEGAL ARGUMENT 20 “Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216, 223, 61 Cal.Rptr.2d 567 21 (Calcor).) In general, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to 22 the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of 23 admissible evidence.” (Code Civ. Proc., § 2017.010.) To meet this standard, a party seeking to compel production of records from a nonparty must articulate specific facts 24 justifying the discovery sought; it may not rely on mere generalities. (Calcor, at p. 224, 61 Cal.Rptr.2d 567.) In assessing the party’s proffered justification, courts must 25 5 Open Text had previously communicated to Google that it was withdrawing Request No. 6 in the 26 original subpoena (Pl.’s Mem. at 3 n.2) and now does not move on Request No. 4 (id. at 2 (requesting “an order compelling the production of the following categories of documents reflected 27 in Request Nos. 1-3 and 5 of the Google Subpoena”). 28 5 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 keep in mind the more limited scope of discovery available from nonparties. (See Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 366, fn. 6, 64 2 Cal.Rptr.3d 434, 165 P.3d 154.) 3 Board of Registered Nursing v. Superior Court, 59 Cal. App. 5th 1011, 1039 (2021). Open Text has 4 failed to meet these standards. 5 As a threshold matter, Open Text implicitly concedes that part of its duty to minimize the 6 burdens of discovery imposed on Google as a non-party to this action requires that it have made 7 reasonable efforts to obtain this information from Beasley. (Pl.’s Mem. at 4-5.) Yet, its attempts, or 8 lack thereof, to do so have been entirely insufficient. 9 First, Open Text contends that it needs information from Google because Beasley refused to 10 testify in response to certain questions posed at her deposition in July 2023. However, it appears that 11 Open Text made no effort – either during Beasley’s deposition or in the many months after – to seek 12 any relief on that front. (Pl.’s Mem. at 4-5; see also Wong Supp. Decl. Ex. F.) Having failed to 13 pursue its rights as against Beasley in a timely manner following her deposition, Open Text should 14 not be permitted to now cure that failure at Google’s expense. 15 Second, Open Text contends it needs information because Beasley has not responded to the 16 requests for production it directed to her and which “mimick[]” the requests directed to Google, 17 (Pl.’s Mem. at 5.) However, Open Text served its Subpoena on Google on December 22, 2023 – 18 weeks before Beasley’s responses to Open Text’s Requests for Production were due. Indeed, Open 19 Text only served its Request for Production on Beasley after it served Beasley with consumer notice 20 of the Subpoena to Google. (See Pl.’s Opp. at 3:17-21, 5:14-21; Pl.’s Mem. at 3:17-21, 5:4-6.) As 21 such, any suggestion that Open Text had no choice but to issue its Subpoena to Google in December 22 is disingenuous at best. 23 Third, as Open Text notes, the parties to this case continue to disagree about whether Beasley 24 has valid objections to Open Text’s Subpoena to Google or its Requests for Production directed to 25 her and whether Open Text is entitled to the information requested. (Pl.’s Mem. at 5.) Such 26 unresolved disagreements are precisely why Google has not responded to the Subpoena and should 27 28 6 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 not have been required to respond to a premature Motion to Compel. 6 2 Turning to the substance of Open Text’s requests to Google, Open Text’s papers are not 3 always clear on the question of whether it is seeking to compel responses to its requests as originally 4 issued or as narrowed in its January 24, 2024 correspondence to Google (thus creating yet another 5 burden for Google in attempting to identify and respond appropriately). Relying on Open Text’s 6 Amended Notice of Motion and its Separate Statement, however, it appears that: 7 • As to Request 1 – seeking “any and all DOCUMENTS concerning DEFENDANT’s application for employment with YOU, hiring by YOU and/or the terms and conditions 8 of her employment with YOU, including without limitation, applications for employment, resumes, job descriptions, interview dates, offer letters, employment 9 agreements or contracts and commission plans” – Open Text is moving on the request as originally set forth in its Subpoena. 10 • As to Request 2 – seeking “Any and all COMMUNICATIONS, including Google Chat 11 Messages and other direct messages and emails, between YOU and DEFENDANT occurring between October 8, 2019 and June 30, 2023, concerning DEFENDANT’s 12 application for employment with YOU” – Open Text is willing to limit the time period of its request to October 8, 2019 to June 30, 2020 (thus shaving three years off the request 13 as set forth in its Subpoena) but without otherwise narrowing the request and without identifying what custodians at Google are potentially at issue. 14 • And as to Requests 3 and 5 – seeking, respectively, “Any and all DOCUMENTS 15 reflecting wages DEFENDANT earned or was eligible to earn since she commenced employment with YOU, including without limitation, DOCUMENTS reflecting wage 16 statements, time sheets, paychecks, paystubs, W-2s, bonus or incentive compensation opportunities, pay increases, and/or pay decrease” and “Any and all DOCUMENTS 17 reflecting PLAINTIFF’S job duties and responsibilities and/or and change to PLAINTIFF’S job duties and responsibilities” – Open Text is moving on its request as 18 narrowed in its January 24 letter to Google. 7 19 6 Open Text asserts that Google’s objections to the Subpoena “indicate a court order is required for it 20 to proceed” but does not point to any statement by Google in support of that assertion. (Pl.’s Mem. at 5.) To the extent Open Text intended this statement to mean that Google will not produce documents 21 in response to the Subpoena while Beasley’s Motion to Quash remains pending, it is correct. As Open Text itself has acknowledged, Google cannot properly produce documents responsive to the 22 Subpoena until that Motion is resolved. To the extent Open Text was implying that Google took the position it would not respond to the Subpoena absent an order compelling it to do so, there is a 23 reason Open Text fails to point to any statement by Google in support of that claim. Google never took such a position. Rather, Google was complying with its obligations to protect the privacy rights 24 of its employees, as well as protecting its own rights not to be unnecessarily burdened by non-party discovery. 25 7 In setting out its position in its Amended Notice of Motion, Open Text does not address Request 5 26 as a standalone request but, instead, tried to rely on its request for Beasley’s job description embedded in Request 1 (Am. Not. of Mot. at 2) – presumably because Open Text has now realized 27 that Request 5 does not actually request a job description for Beasley. See nn. 4-5, supra. 28 7 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 (See Am. Not. of Mot. at 2; Pl.’s Sep. Stmt. at 4-5 (Req. No. 1), 7 (Req. No. 2), 8 (Req. No. 3), and 2 10 (Req. No. 5).) 3 Further, and regardless of the precise scope of Open Text’s requests, it has still failed to 4 comply with Code of Civil Procedure Section 2020.410(a), which requires that “[a] deposition 5 subpoena” commanding the production of business “designate the business records to be produced 6 either by specifically describing each individual item or by reasonably particularizing each category 7 of item.” A request for “any and all documents” reflecting or concerning multiple different subjects 8 (Request No. 1) and a request for “any communications” (including but not limited to emails, texts, 9 chats, voicemails, and even “social media messages”) between Beasley and anyone at Google over a 10 nine-month period (Request No. 2) do not come close to satisfying this particularity requirement. 11 Nor has Open Text offered the specific factual or legal justification required for discovery sought 12 from a non-party. Rather, it relies on “mere generalities” that are not sufficient. Calcor, 53 Cal. App. 13 4th at 224. 14 For instance, Open Text attempts to support its requests for information by pointing to a case 15 on damages and the “measure of recovery.” (Pl.’s Mem. at 7; see also Pl.’s Separate Stmt. at 4.) But 16 while that rationale may explain Open Text’s request for “documents sufficient to show the wages 17 Beasley earned” at Google, Beasley herself should be able to provide that information (whether in 18 response to deposition questions, form interrogatories, special interrogatories, and/or Requests for 19 Production that should have been issued long ago). Further, that rationale does nothing to support 20 Open Text’s requests in the Subpoena for “any and all documents.” 21 In addition, even if Open Text has decided now to narrow its requests (or at least some of 22 them), its proffered rationale is similarly far removed from demonstrating the relevance of: 23 • Documents concerning Beasley’s application for employment with Google, hiring by Google and/or the terms and conditions of her employment with Google, including 24 her resume, job description, interview dates, offer letters, employment agreements, and commission plans; and 25 • Communications between Google and Beasley from October 8, 2019 to June 30, 26 2020, concerning her application for employment, including but not limited to, her initial interview, reasons for leaving her employment with Open Text, and/or 27 acceptance of employment with Google. 28 8 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 (Am. Not. of Mot. at 2.) Again, this is information and documents that Open Text can obtain from 2 Beasley. 3 As to Open Text’s interest in what Beasley possibly might have said in the course of her 4 discussions with Google about her departure from Open Text, Open Text notably does not aver that 5 it has any basis in fact to believe that any such communications actually occurred and if they 6 occurred Beasley might have communicated anything of substance about her reasons for leaving 7 Open Text, or even that any such communications might have been memorialized. Open Text merely 8 theorizes that such communications might exist, which is not a sufficient basis to burden a non-party 9 like Google. See Bd. of Reg. Nursing, 59 Cal. App. 5th 1011, 1938 (“[A] party seeking to compel 10 production of records from a nonparty must articulate specific facts justifying the discovery sought; 11 it may not rely on mere generalities.”); Calcor, 53 Cal. App. 4th at 224, (vacating order compelling 12 production where “the justifications offered for the production [were] mere generalities” that did not 13 warrant imposition of significant burden on non-party). 14 This is all the more true where a party is seeking ESI, as Open Text does here. See Park v. 15 Law Offices of Tracey Buck-Walsh, 73 Cal. App. 5th 179, 189 (2021); see also Code Civ. Proc. 16 § 1985.8(i)(1)-(3); id. § 1985.8(k) (“A party serving a subpoena requiring the production of 17 electronically stored information shall take reasonable steps to avoid imposing undue burden or 18 expense on a person subject to the subpoena.”); id. § 1985.8(l) (“An order of the court requiring 19 compliance with a subpoena issued under this section shall protect a person who is neither a party 20 nor a party’s officer from undue burden or expense resulting from compliance.”). 21 Finally, while Open Text argues it is entitled to seek discovery “via multiple avenues,” the 22 cases it cites for that proposition are inapposite. Carter v. Superior Court, 218 Cal. App. 3d 994 23 (1990), involved discovery directed to a party opponent, while Hecht, Solberg, Robinson, Goldberg 24 & Bagley LLP v. Superior Court, 137 Cal. App. 4th 579, 584 (2006) involved discovery directed to a 25 non-party whose relationship with the plaintiff in the case was directly at issue where the plaintiffs 26 was suing one set of attorneys “for damages to be measured by the lost recovery allegedly caused by 27 [his] former counsel,” to whom the subpoena was directed. Nothing in those cases suggests it is 28 9 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC 1 appropriate for a party to litigation to shift the burdens and expenses of that litigation to a non-party 2 with no role in, or connection to, the litigation beyond mere happenstance and simply because it 3 hopes the non-party will prove easier to deal with than its opponent.8 Open Text’s Motion to Compel 4 should be denied. 5 IV. CONCLUSION 6 Google respectfully requests that the Court deny Open Text’s Motion to Compel the 7 Subpoena to Google. 8 Respectfully submitted, 9 Dated: March 22, 2024 DUANE MORRIS LLP 10 11 By: Victoria R. Carradero 12 Attorneys for Non-Party GOOGLE LLC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 As for Open Text’s reliance on Hill v. NCAA, 7 Cal. 4th 1 (1994), and Williams v. Superior Court, 3 Cal. 5th 531 (2017), any argument as to Beasley’s privacy rights is properly made in the context of 27 Beasley’s Motion to Quash. 28 10 CASE NO. 21-cv-01470 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION OF NON-PARTY GOOGLE LLC TO PLAINTIFF OPEN TEXT INC.’S AMENDED MOTION TO COMPEL PRODUCTION OF BUSINESS RECORDS FROM NON-PARTY DEPONENT GOOGLE LLC