Mamta Ahluwalia (Bar No.

245992)
1
HKM Employment Attorneys LLP
2 453 S. Spring Street, Suite 1008
Los Angeles, California 90013
3 Tel/Fax: 213.259.9950
Email: mahluwalia@hkm.com
4
Barbara E. Figari (Bar No. 251942)
5 THE FIGARI LAW FIRM
9431 Haven Avenue, Suite 100
6
Rancho Cucamonga, CA 91730
7 Telephone: 626.486.2620
Facsimile: 877.459.3540
8 Email: barbara@figarilaw.com

9 Dan Kalish (admitted pro hac vice)

HKM Employment Attorneys LLP
10 600 Stewart St., Suite 901
Seattle, Washington 98101
11
Tel/Fax: (206) 826-5354
12 Email: dkalish@hkm.com

13 Attorneys for Plaintiff

Alice Vysata
14
UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 ALICE VYSATA,
CASE NO.: 18-cv-06157-JAK-RAO
17
Plaintiff and Counterdefendant,
18
v. JOINT STIPULATION REGARDING
19 PLAINTIFF’S MOTION TO QUASH
MARC MENOWITZ, ET AL., SUBPOENA [L.R. 37-2.1]
20
Magistrate Judge Rozella A. Oliver
21 Defendants & Counterclaimants.
22 Hearing Date: May 8, 2019
Hearing Time.: 10:00 a.m.
23
Discovery Cutoff: June 17, 2019
24 Pretrial Conf.: TBD
Trial Date: TBD
25

26
27

I
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 Table of Contents
1

2
I. MEET AND CONFER EFFORTS BY THE PARTIES ............................................... 1
3 II. INTRODUCTORY STATEMENT BY THE PARTIES .............................................. 1
4 A. A. Introductory Statement by Vysata..................................................................... 1
5 B. B. Introductory Statement by ARA and Menowitz ........................................... 2
III. ISSUES IN DISPUTE........................................................................................................ 5
6
IV. SUBPOENAS AT ISSUE IN VYSATA’S MOTION TO QUASH .................................. 5
7
V. PLAINTIFF ALICE VYSATA’S POSITION ON THE VERIZON
8 SUBPOENA ..................................................................................................................... 6
A. Background Facts................................................................................................... 6
9
B. Legal Standard. ...................................................................................................... 7
10
C. Meet and Confer Regarding the Subpoena to Verizon. ......................................... 7
11 D. The Verizon Subpoena Should Be Quashed and/or Modified. .............................. 8
12 1. The Verizon Subpoena Seeks Information Related to Third-
Parties. ........................................................................................................ 9
13
2. The Verizon Subpoena Private, Confidential and Privileged
14 Information. ............................................................................................... 9
15 3. The Verizon Subpoena Seeks Documents in Violation of
the Stored Communications Act. ............................................................. 10
16 4. The Verizon Subpoena Is Overbroad ....................................................... 11
17 5. The Verizon Subpoena Was Issued Without Notice to the
Consumer. ................................................................................................ 11
18
6. Defendants Should Have Pay Vysata’s Fees f or Bringing
19 This Motion.............................................................................................. 13
20 VI. ARA AND MENOWITZ’S POSITION ON THE VERIZON SUBPOENA .................. 13

21

22

23

24

25

26
27

1
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 Plaintiff/Counter-Defendant Alice Vysata and Defendants/Counterclaimants Marc

2 Menowitz and Apartment Rental Assistance II, Inc. (“ARA”) submit this joint stipulation

3 pursuant to Local Rule 37-2.1.

4 I. MEET AND CONFER EFFORTS BY THE PARTIES

5 As required by Central District Local Rule 37-1, the parties have met and conferred,
6 regarding this discovery dispute, and have been unable to reach an agreement, necessitating
7 this joint stipulation.
8 ARA and Menowitz respectfully state that the parties met and conferred on a
9 telephone call on which Vysata’s counsel offered to provide phone records, through Vysata

10 (rather than through a subpoena), which contain information about calls “related to work,”

11 as unilaterally defined and determined by Vysata counsel. Also, Vysata’s counsel refused to

12 agree to allow any information to be provided regarding Vysata’s location. When ARA and

13 Menowitz’s counsel stated that the documentation proposed by Vysata’s counsel should be
produced and then the parties can continue to discuss any remaining areas of disagreement,
14
Vysata’s counsel then withdrew from discussions and declared a purported impasse even
15
though the ARA and Menowitz stated that the agreed-upon subset of documents should be
16
produced and then the parties can discuss whether the additional documents are needed or
17
the remaining issues could be briefed after some documents are produced.
18
II. INTRODUCTORY STATEMENT BY THE PARTIES
19
20 A. Introductory Statement by Vysata

21 Defendants’ conduct on subpoenas in this case is at best inappropriate and, at worst,

22 simply abusive. Defendants have issued over 50 subpoenas in the lawsuits between the

23 parties (this one and the one pending in Florida), and has issued 34 subpoenas in this case

24 alone, virtually all of which ask for information that has little to do with this case, and most

25 of which seeks intimate and private information related to her personal financial
information. Kalish Decl. ¶ 3.
26
27

1
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 But even more frustrating is that Defendants engage in their subpoena practice to

2 ensure that the parties cannot timely comply with the requirements in Local Rule 37. For

3 example, Defendants provided notice of a subpoena to Verizon on March 26, with a

4 compliance date of April 3, a mere 8 days for compliance. On that same day, Vysata sent a

5 Rule 37-1 letter and asked for a meet and confer and specifically asking Defendants to move
back the compliance date so that the parties could comply with Rule 37. Defendants did not
6
initially respond to the letter. Then Vysata sent an email on Saturday, March 30th, asking
7
again for a meet and confer. Finally, Defendants agreed to a meet on confer, but did not
8
agree to a meet and confer at any time prior to the compliance date on the Verizon
9
subpoena. This required Vysata to file a motion to quash before the meet and confer. Dkt.
10
108. And further, during the meet and confer, Defendants refused to push back the
11
compliance date. Kalish Decl. ¶ 4. This is improper gamesmanship and should not be
12
countenanced.
13
And the scope of this subpoena is wholly inappropriate. Defendants seek the content
14 not from Alice Vysata, but from these specific phone numbers, which means that
15 Defendants seeks information third-parties if these third-parties were assigned any of these
16 three numbers from the past seven years. Accordingly, if Verizon had to comply with this
17 subpoena, Defendants would likely get records from individuals have nothing to do with this
18 lawsuit. Further, even for Vysata’s records, seeking every single text message and every
19 single phone call is way overbroad. Defendants have not engaged in any reasonable effort

20 to limit the scope of the subpoena to Alice Vysata, and has not engaged in any reasonable

21 effort to limit the scope of even Alice Vysata’s records. Accordingly, Defendants should

22 have reimburse Plaintiff Vysata for the fees necessary to quash and/or modify this subpoena.

23 B. Introductory Statement by ARA and Menowitz

24 The statements above are inaccurate. Vysata’s counsel has objected to and

25 obstructed virtually all the subpoenas issued in this litigation, forcing cumbersome and

26 dilatory motion practice. The only reason there are two lawsuits is because Vysata filed this

27 second lawsuit 3,000 miles away from her home in Florida three months after being served

2
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 with the Florida lawsuit and a month after filing a counterclaim against ARA and Menowitz

2 in the Florida lawsuit. Contrary to the assertion that ARA and Menowitz have sought

3 purportedly “intimate” information (a loaded and misleading term), in this subpoena, ARA

4 and Menowitz simply seek Vysata’s telephone records (from her business phone through a

5 third-party phone company) during the time that Vysata falsely claims to have been
“employed” by ARA and Menowitz. Contrary to the incorrect assertion that ARA and
6
Menowitz seek “every single text message” sent by Vysata, the phone records show only
7
dates, times and telephone numbers, and not the content of any text message.
8
On the parties’ meet and confer call, ARA and Menowitz’s counsel specifically
9
stated that ARA and Menowitz are not seeking communications with any romantic partners
10
or personal non-business contacts of Vysata and we seek business communications. If
11
telephone calls or text messages with romantic partners exist, those can be redacted, as
12
stated by ARA and Menowitz on the meet and confer call. As the Court knows, ARA and
13
Menowitz contend that Vysata was engaged in a wide range of businesses that had nothing
14 whatsoever to do with ARA or Menowitz. Vysata had secretly moved to Syracuse, New
15 York for nine months in 2015 and 2016 to enroll in a technology entrepreneurship course
16 and a technology accelerator to build her multiple other businesses that have nothing to do
17 with ARA or Menowitz. Vysata told her Syracuse landlord that she was in Syracuse “for
18 business.” However, ARA and Menowitz have no business anywhere near Syracuse and
19 Vysata hadn’t even told ARA or Menowitz she had ever set foot in Syracuse. This

20 information was discovered in the litigation.

21 On the meet and confer call for this Verizon subpoena, ARA and Menowitz’s

22 counsel identified four components: (1) date and time of call/text, (2) phone number, (3)

23 duration of the call, (4) location of the cell cite tower. The parties actually agreed on the
first three components. However, as soon as ARA and Menowitz expressed happiness that
24
the parties had a disagreement, Vysata’s counsel stated that the records would only
25
produced: (a) if ARA and Menowitz withdraw the subpoena, (b) if ARA and Menowitz then
26
wait for Vysata to request the records herself, (c) Vysata/Vysata’s counsel would then have
27

3
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 unfettered power to unilaterally decide which telephone numbers and entries to redact, and

2 (d) no location or cell site information would be provided.

3 In response, ARA and Menowitz said that Vysata should go ahead and produce that

4 suggested information and then the parties can revisit whether the rest of the information is

5 necessary. This is the same discussion the parties had about the United Shore subpoena
(and others) - whereby the parties agreed on Subset X and ARA and Menowitz requested
6
production of Subset X in order to determine whether Subset Y was necessary. Vysata’s
7
counsel’s pattern is to then refuse to agree to anything or produce any records unless ARA
8
and Menowitz permanently waive their right to seek relevant and important discovery in this
9
case. Pursuant to each subpoena, ARA and Menowitz drafted the subpoenas carefully and as
10
narrowly in the first place and have been willing to further narrow the scope in good faith.
11
The lack of the parties’ agreement cannot be attributed to ARA and Menowitz because to
12
have agreed to the unreasonable terms demanded by Vysata to avoid this motion practice
13
would entail the waiver of the right to important evidence.
14 Clearly the telephone numbers, dates and times are relevant to show who Vysata was
15 speaking with and at what times, when she was supposedly “employed” by ARA or
16 Menowitz. If Vysata was really employed by ARA or Menowitz and had a “company
17 phone,” then ARA and Menowitz would already have this information. The discovery
18 sought is plainly relevant to a critical claim or defense in that ARA and Menowitz contend
19 that Vysata was not an ARA employee and that she engaged in numerous other business

20 projects as a self-employed person. In fact, ARA and Menowitz have recently discovered

21 that Vysata was employed by a completely different real estate broker in California from

22 2012-2015, Grand Avenue Realty & Lending, Inc. ARA and Menowitz would like to know

23 what business Vysata conducted with her actual employing broker, Grand Avenue Realty &
Lending, Inc., (Vysata has also moved to quash that subpoena- because it contains
24
“employment records!”). And yet, Vysata’s claims are predicated on the (highly disputed)
25
premise that she was supposedly “employed” by ARA rather than Grand Avenue.
26
27

4
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 Moreover, Vysata’s location is very important. Vysata has not lived in California

2 since 2015. And at virtually all times before she moved away from California, Vysata was

3 employed by a different real estate broker, Grand Avenue and AgencyOne f/k/a The Force.

4 Vysata never told ARA or Menowitz about her employing brokers and she never told her

5 employing brokers about ARA or Menowitz. Vysata claims to have been “working” from
her Boca Raton house at various times in this case. However, through discovery, witnesses
6
have revealed that Vysata was rarely at this location and that she was traveling all over the
7
western hemisphere in London, New York, Connecticut, North Carolina and all points in
8
between. She was often in airplanes during her pilot training courses. Vysata states that she
9
only worked from a couple selected locations. However, Karl Kattrein testified that Vysata
10
spent countless hours at the Danbury, CT private airport. This is hardly an ARA location,
11
and moreover Vysata failed to state that she conducted any work from this location.
12
Accordingly, ARA and Menowitz seek relevant, important discovery from a third-party and
13
are being obstructed and delayed again by Vysata. A final point to note, Vysata has recently
14 served 16 extremely overbroad subpoenas. In serving these subpoenas, Vysata has taken a
15 diametrically inconsistent position as compared to the assertions espoused in this, yet
16 another, motion to quash.
17
III. ISSUES IN DISPUTE
18
On March 26, 2019, Defendants Apartment Rental Assistance II, Inc. and Marc
19
Menowitz, sent Plaintiff notice of subpoenas to the following subpoena to Verizon.
20
Declaration of Dan Kalish (“Kalish Decl. ¶ 2) and Ex. 1. The parties dispute the propriety and
21
the scope of this subpoena.
22
IV. SUBPOENAS AT ISSUE IN VYSATA’S MOTION TO QUASH
23

24 The subpoena to Verizon seeks the following:

25

26 EXHIBIT A
27

5
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 1. For the telephone number (310) 488-7955, any and all account
statements, monthly statements, subscriber information, call history, fax
2 history, text message history, SMS message history, IP address logs for any
3 online access to an account, and cell site data from January 1, 2011 to March
31, 2018.
4
2. For the telephone number (323) 904-1939, any and all account statements,
5
monthly statements, subscriber information, call history, fax history, text
6 message history, SMS message history, IP address logs for any online access
to an account, and cell site data from January 1, 2011 to March 31, 2018.
7

8 3. For the telephone number (702) 302-3440, any and all account statements,
monthly statements, subscriber information, call history, fax history, text
9
message history, SMS message history, IP address logs for any online access
10 to an account, and cell site data from January 1, 2011 to March 31, 2018.
11 4. For any telephone number used by or registered to Alice Vysata,
12 [personally identifiable information to be provided], any and all account
statements, monthly statements, subscriber information, call history, fax
13 history, text message history, SMS message history, IP address logs for any
14 online access to an account, and cell site data from January 1, 2011 to March
31, 2018.
15

16 V. PLAINTIFF ALICE VYSATA’S POSITION ON THE VERIZON SUBPOENA

17 A. Background Facts.

18 Plaintiff Alice Vysata (“Plaintiff”) brought this action against Defendants Marc

19 Menowitz (“Menowitz”) and Apartment Rental Assistance II, Inc. (“ARA”) for sexual

20 harassment, wrongful termination, retaliation, and misclassification as an independent

21 contractor, all under California state law. (Dkt. No. 1). Plaintiff worked for Defendants
22
from 2011 to February 2018, initially as an intern, and later as Director of Acquisitions for
23
Apartment Rental Assistance II, Inc. On January 8, 2019, Defendants filed a Counterclaim
24
against Plaintiff, alleging that she misrepresented her personal interest in Menowtiz, causing
25

26 him to spill his family secrets to him. (Dkt. No. 57). They also appear to allege that

27 Defendants were misled by Plaintiff into believing that she was a licensed broker for all

6
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 those years, and that any payments she received for her work for ARA and Menowitz
1

2 constituted commissions that could only be legally paid to a licensed broker. Plaintiff’s

3 motion to dismiss under Federal Rule 12(b)(6) (Dkt. No. 59) and her Anti-Slapp Motion

4 (Dkt. No. 80) are pending and set for hearing in this matter.
5
B. Legal Standard.
6
Under Federal Rule of Civil Procedure 45(a)(1)(c), any party may serve a subpoena
7
commanding a nonparty “to attend and give testimony or to produce and permit inspection and
8
copying of” documents. Fed. R. Civ. P. 45(a)(1)(C). The subpoena may command the
9

10 production of documents which are “not privileged” and are “relevant to the subject matter” or

11 “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
12 Absent a showing of good cause, discovery is limited to matter relevant to the claims or defenses
13
of the parties, rather than the “subject matter” of the action. See Elvig v. Calvin Presbyterian
14
Church, 375 F.3d 951, 968 (9th Cir. 2005. Upon a timely motion, the court issuing such a
15
subpoena shall quash it if it determines that the subpoena “requires disclosure of privileged or
16

17 other protected matter and no exception or waiver applies.” Fed. R. Civ. P. 45(c)(3)(A)(iii).

18 In a pure diversity case, such as this case, State law governs interpretation of substantive
19
matters, including privilege. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–80, (1938); see also
20
Platypus Wear, Inc. v. K.D. Co., Inc., 905 F. Supp. 808, 811 (S.D. Cal. 1995) (state law governs
21
law of privilege in diversity case).
22

23 C. Meet and Confer Regarding the Subpoena to Verizon.

24
On April 5th, counsel engaged in a meet and confer regarding the Verizon subpoena. At
25
the meet and confer, Vysata’s counsel suggested that the parties limit the scope of the subpoena
26
27 to the following information:

7
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 From 2011 to 2018, the (1) date, (2) time, and (3) duration of every call that Vsyata had
1 that related to her work for ARA.
2
Defendants counsel refused to limit the scope of the subpoena in any manner. Further, Vysata’s
3
counsel suggested that all of the Verizon records should go to Vysata’s counsel first, and then
4
Vysata could produce them through the normal course of a request for production. Defense
5

6 counsel refused this also; defense counsel did not provide another limitation on the scope of the

7 subpoena. Kalish Decl. ¶ 5.

8 Further, at the meet and confer, Vysata’s counsel asked defense counsel to move the
9
compliance date of the subpoena back so that the parties could further discuss a possible
10
resolution and fully comply with Local Rule 37-1. Defense counsel refused. Id.
11
This joint stipulation followed.
12

13 D. The Verizon Subpoena Should Be Quashed and/or Modified.

14
The Verizon phone records provide the following information: the (1) date, (2) time, (3)
15
phone number to whom Vysata called or phone number of person who called Vysata, (4) the
16

17 location where Vysata was when the call was made or received, and (5) the duration of the call.

18 The three phone numbers listed on the subpoena are Verizon phone numbers that belonged to

19 Alice Vysata at one point, but she has only used 310-488-7955 for the past several years.
20 Declaration of Alice Vysata ¶ 2.
21
The subpoena issued to Verizon seeks to obtain (1) every single call and text message
22
sent to and/or received from any of these phone numbers for a 7-year period, (2) the location
23
where the subscriber was when the call or text message occurred; and (3) the content of every
24

25 single text message any of these subscribers ever sent. For several reason, this subpoena should

26 be quashed.

27

8
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1

3 1. The Verizon Subpoena Seeks Information Related to Third-Parties.

4
First, this subpoena seeks information for any subscriber who used the phone numbers,
5
and does not limit the information requested to just Alice Vysata. Accordingly, if someone else
6

7 was assigned these numbers during the time period of 2011 to 2018, a likely situation, Verizon

8 would produce highly confidential and personal information related to the phone records for

9 these third-parties.
10
2. The Verizon Subpoena Private, Confidential and Privileged Information.
11

12 It is undisputed that “…California accords privacy the constitutional status of an

13 “inalienable right,” on a par with defending life and possessing property.” Vinson v. Superior

14 Court 43 Cal.3d 833, 841 (1987); California Constitution, Article I, section 1. California’s
15 constitutional right to privacy has been held to operate even if a statutory privilege does not
16
protect the matter in question. Davis v. Superior Court 7 Cal.App.4th 1008, 1014 (1992)
17
(citations omitted). “When the right to discovery conflicts with a privileged right, the court is
18
required to carefully balance the right of privacy with the need for discovery.” Harris v. Superior
19
20 Court 3 Cal.App.4th 661, 665 (1992). Constitutionally protected information is treated like

21 privileged information in the discovery process. “The party seeking the constitutionally protected

22 information has the burden of establishing that the information sought is directly relevant to the
23
claims.” Tylo v. Superior Court 55 Cal.App.4th 1379, 1387 (1997).
24
In order to get beyond this “zone of privacy,” the burden of proof is on Defendants to
25
show (1) that the information is essential to determining the truth of disputed matters, and (2)
26
that the information is not available from other sources or by less intrusive means. Britt v.
27

9
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 Superior Court, supra, 20 Cal.3d at p. 855-856; Davis v. Superior Court 7 Cal. App.4th at 1008,
1

2 1017 (1992). Proving that the documents sought are “essential to determining the truth of

3 disputed matters” means that the Defendant must show a particularized need for the confidential

4 information sought. See Lantz v. Superior Court, 28 Cal.App.4th 1839, 1854 (1994); Britt v.
5
Superior Court, supra, 20 Cal.3d at p. 859-862. Where privacy rights are concerned, direct
6
relevance is required; the assertion that documents may lead to discoverable evidence is not
7
sufficient. Binder v. Superior Court 196 Cal. App. 3d 893, 901 (1987).
8
Discovery of constitutionally protected information is on a par with discovery of
9

10 privileged information and is more narrowly proscribed than traditional discovery.” Tylo v.

11 Superior Court, supra, 55 Cal.App.4th at 1387.

12 Here, the subpoena seeks information that is very private and confidential to Alice
13
Vysata, and includes every single phone call and text message she made to anyone, including
14
any boyfriends, girlfriends, relatives, and/or attorneys. Defendants have failed to meet the
15
overcome the high burden that protects these types of documents, and has failed to take any steps
16

17 to ensure that their subpoena request does not include communications or calls between Vystaa

18 and counsel..

19 3. The Verizon Subpoena Seeks Documents in Violation of the Stored

20 Communications Act.
21
The request for the content of the text messages is in violation of the federal Stored
22
Communications Act (“SCA”). Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900
23
(9th Cir. 2008), rev'd on other grounds, City of Ontario, Cal. v. Quon, 560 U.S. 746, 130 S. Ct.
24

25 2619, 177 L. Ed. 2d 216 (2010); Doe v. City of San Diego, 12-CV-0689-MMA DHB, 2013 WL

26 2338713, at *4 (S.D. Cal. May 28, 2013) (“Accordingly, the Court concludes that the SCA
27

10
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 prohibits Verizon from disclosing the content of any text messages or BBIMs sought by the
1

2 City's subpoena.”). (Defendants counsel suggests that the Verizon subpoena does not request

3 content of the text messages, but this is an incorrect reading of the clear language of the

4 subpoena.)
5
4. The Verizon Subpoena Is Overbroad
6

7 The Verizon subpoena seeks information far in excess of what is appropriate in this

8 sexual harassment lawsuit. Indeed, it is hard to imagine why, in this case, Defendants feel that

9 they need to know every single phone call she ever made or received, every text message that she
10 ever sent or received, and her location at every second in the past seven years. This is unduly
11
intrusive, and entirely inappropriate in this type of case. Accordingly, this Court should quash
12
the Verizon subpoena.
13

14 5. The Verizon Subpoena Was Issued Without Notice to the Consumer.

15 California takes the privacy rights of its citizens seriously, especially where information
16
is sought concerning consumer activities. The statute expressly references the records sought
17
here. In order to obtain such information, the seeker must follow strict procedures. California
18
Code of Civil Procedure §1985.3(b) provides procedural requirements in order to subpoena the
19
20 personal records of any consumer in California. Section 1985.3 defines a consumer as “any

21 individual, partnership of five or fewer persons, association, or trust which has transacted

22 business with, or has used the services of, the witness…”. Cal. Code Civ. Proc. § 1985.3(a)(2).
23
Subpoenas to Vysata’s mortgage lenders clearly fall within this definition.
24
Personal records under 1985.3(a)(1) include:
25
…the original, any copy of books, documents, other writings, or
26 electronically stored information pertaining to a consumer and
which are maintained by any “witness” which is a … . state or
27

11
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 national bank, state or federal association (as defined in Section
1 5102 of the Financial Code), state or federal credit union, trust
2 company, anyone authorized by this state to make or arrange loans
that are secured by real property, security brokerage firm, insurance
3 company, title insurance company, underwritten title company,
escrow agent licensed pursuant to Division 6 (commencing with
4 Section 17000) of the Financial Code or exempt from licensure
pursuant to Section 17006 of the Financial Code, attorney,
5
accountant, ….
6
Cal. Code Civ. Proc. § 1985.3(a)(1) (emphasis added).
7
The statute requires that prior to the date of production called for in the subpoena for
8
personal records, the subpoenaing party must serve on the consumer or her attorney, a copy of
9

10 the subpoena, a Notice to Consumer as provided for in subdivision of (e) of § 1985.3, and proof

11 of service per subsection (c)(1). Section 1985.3(e) provides that a Notice must be served on the
12 consumer which must indicate to the consumer that (1) her personal records are being sought, (2)
13
if she objects to the release of her records, she must file papers with the court or serve a written
14
objection prior to the date specified for production of the records and (3) if the party seeking the
15
records does not agree in writing to cancel or limit the subpoena, an attorney should be consulted
16

17 about the consumer’s interest in protecting her privacy. Cal. Code Civ. Proc. § 1985.3(e).

18 Further, section 1985.3(b) requires that the consumer be served at least five days prior to

19 service upon the custodian of records, and not less than 10 days prior to the date for production.
20 Cal. Code Civ. Proc. § 1985.3(b)(3). Prior to the production of the records, the subpoenaing
21
party must provide the custodian of records to whom the subpoena was directed with either (1)
22
proof of service attesting to compliance with § 1985.3(b), or (2) a written authorization to release
23
the records signed by either the consumer or his/her attorney of record. Code Civ. Proc. §
24

25 1985.3(c).

26
27

12
JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 ARA and Menowitz have failed to comply with § 1985.3(b) and (c). No notice to the
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2 consumer was served, no authorization from the consumer was obtained, and the witness was not

3 properly served with the proof of service, because no service on the consumer occurred pursuant

4 to § 1985.2(b). There is no indication that ARA and Menowiz even attempted to satisfy the
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notice requirements set forth in § 1985.3.
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6. Defendants Should Have Pay Vysata’s Fees f or Bringing This Motion.
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8 In accordance with Fed. R. Civ. P. 37, Local Rule 37, and the inherent powers of this
9 Court, this Court should require Defendants to pay for Vysata’s fees and costs associated with
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the motion to quash. As demonstrated above, the subpoenas seek information far in excess of
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what is allowed in discovery, seeks information related to third-parties, asks for information
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forbidden to be disclosed by the Stored Communications Act, and seeks information almost
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14 surely protected by the attorney-client privilege. Defendants should not have issued this

15 subpoena or, at the very least, agreed to modify it before requiring Vysata to move to quash it.

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In addition, it appears that ARA and Menowitz are playing some sort of gamesmanship
17 with the rules, in an effort to put Vysata in an untenable situation. On the one hand, Vysata
needs to file a motion to quash before the compliance date of April 3, 2019. If she did not, any
18 motion to quash could arguably untimely. On the other hand, and in accordance with local Rule
37, Vysata needs to have a meet and confer with opposing counsel and provide opposing counsel
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with a joint stipulation prior to filing a motion. The problem is that compliance with local rule
20 37 almost always requires more than 8 days. ARA and Menowitz failed to move back the
compliance date on the subpoena. And ARA and Menowitz failed to provide any dates prior to
21 the compliance date on when they were available to meet and confer with Vystata’s counsel in
response to Vysata’s request in her Rule 37-1 letter. Local Rule 37-4 states that the “failure of
22 any counsel to comply with or cooperate with the foregoing procedures may result in the
imposition of sanctions.” This situation calls for sanctions because opposing counsel failed to
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comply with or cooperate with the procedures laid out in local Rule 37 and their request is so
24 clearly overbroad.
VI. ARA AND MENOWITZ’S POSITION ON THE VERIZON SUBPOENA
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26 Vysata’s first argument, that the phone records received could contain records related to
non-parties is inapposite and it borders on being disingenuous. If any records pertain (for some
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JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 reason) to a different subscriber, the parties would simply destroy and disregard those records. In
1 this subpoena, ARA and Menowitz are not seeking records related to any subscriber other than
2 Vysata. The second argument, that the phone records are “privileged,” is not true and it is
unsupported by any case. The third argument, that the subpoena supposedly violates the federal
3 “Stored Communications Act” per Quon v. Arch Wireless Operating Co., Inc., 529 F. 3d 892,
900 (9th Cir. 2008) because ARA and Menowitz supposedly seek the “content” of the text
4 messages is false. The subpoenas contain no request for the “content” of any text message. The
subpoena reflects a request for “text message history” not “text message content.” Moreover, this
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point was made clear during the parties’ meet and confer call. Thus, it is odd that Vysata’s
6 counsel has asserted that ARA and Menowitz are seeking records that they are, in fact, not even
seeking. Most fundamentally, however, Quon is not even good law, as it was overruled by the
7 Supreme Court in City of Ontario , Cal. v. Quon, 560 U.S. 746, 760 (2010).

8 Fourth, the overbreadth objection is not well-taken because ARA and Menowitz agreed

9 to exclude personal calls/texts and calls/texts with romantic partners. The parties disagreed on

10 who would decide the scope of those calls. ARA and Menowitz’s counsel suggested that Vysata

11 could assert selected numbers and those could be redacted. However, Vysata’s counsel insisted

12 that he must have unilateral and unfettered control of what information the third-party provides

13 pursuant to the subpoena. Fifth, the “notice to consumer” applies only to persons in California.

14 Vysata is undisputedly a Florida resident and not a resident of California. Moreover, Vysata’s

15 counsel received ample notice. Furthermore, Vysata’s counsel ‘s service of 16 subpoenas

16 without any notice to consumer is informative of the weight that Vysata’s counsel puts in this

17 particular objection. If Vysata can dispense with the so-called requirement, she should be

18 estopped from asserting it. ARA and Menowitz followed all the rules pursuant to Fed. R. Civ. P.

19 45. There would be no point in delaying the compliance date on the subpoena because the result

20 would have been the same. Vysata’s counsel refuses to agree to virtually any meaningful

21 production of any evidence from any third-party pursuant to any subpoena issued in this

22 litigation. ARA and Menowitz respectfully incorporate by reference their April 2, 2019 letter and

23 their counsel’s Declaration. We appreciate the Court’s time and consideration.

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25
DATED: HKM EMPLOYMENT ATTORNEYS LLP
26 THE FIGARI LAW FIRM

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JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
 1 By:
Mamta Ahluwalia, Esq.
2 Dan Kalish, Esq.
3 Barbara Figari, Esq.
Attorneys for Plaintiff
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5 DATED: CHASE LAW, LLC

6 LAW OFFICE OF ARYEH KAUFMAN

7 By:
Kenneth E. Chase
8 Attorneys for
Defendants/Counter-Plaintiffs
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Apartment Rental Assistance II, Inc.
10 and Marc Menowitz

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JOINT STIPULATION REGARDING VYSATA’S MOTION TO QUASH SUBPOENA TO VERIZON
CASE NO.: 18-cv-06157-JAK-RAO
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JOINT STIPULATION RE: DEFENDANTS RESPONSES TO PLAINTIFF’S FIRST SETS OF
INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS
CASE NO.: 18-cv-06157-JAK-RAO