Unsworth v. Musk

Northern District of California, cand-3:2019-mc-80224

ORDER by Magistrate Judge Jacqueline Scott Corley denying 1 Motion to Quash.

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2 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 VERNON UNSWORTH, Case No. 19-mc-80224-JSC Plaintiff, 6 ORDER RE: MOTION TO QUASH v. SUBPOENAS 7 8 ELON MUSK, Re: Dkt. No. 1 Defendant. 9 10 This dispute arises out of subpoenas that Plaintiff Vernon Unsworth (the "Unsworth 11 Subpoena") and Defendant Elon Musk (the "Musk Subpoena") issued to non-party journalist Ryan 12 Mac in a pending defamation action in the United States District Court for the Central District of Northern District of California United States District Court 13 California. See Unsworth v. Musk, No. 2:18-cv-08048-SVW-JC (C.D. Cal.). The underlying 14 lawsuit alleges that Mr. Musk made "false and defamatory accusations" about Mr. Unsworth in 15 public statements on Twitter as well as emails Mr. Musk sent to Mr. Mac that were subsequently 16 published by Mr. Mac's employer, BuzzFeed News ("BuzzFeed"). (Dkt. No. 2-1, Ex. W at 99 ¶¶ 17 88-96.)1 Before the Court is Mr. Mac's motion to quash the subpoenas. (Dkt. No. 1.) Having 18 considered the parties' briefing and having had the benefit of oral argument on October 17, 2019, 19 the Court GRANTS Mr. Mac's motion to quash the Musk Subpoena as unduly burdensome 20 because the testimony it seeks is not relevant. The Court DENIES Mr. Mac's motion to quash the 21 Unsworth Subpoena. 22 BACKGROUND 23 The underlying lawsuit stems from several comments Mr. Musk made about Mr. Unsworth 24 related to the well-publicized July 2018 rescue of twelve boys and their soccer coach from the 25 Tham Luang Nang Non cave system in Thailand. (Dkt. No. 2-1, Ex. W at 87, ¶¶ 1-4.) The 26 following facts are not in dispute. Mr. Musk made the allegedly defamatory comments after Mr. 27 28 1 Record citations are to material in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 2 1 Unsworth gave an interview to CNN on July 13, 2018, during which he characterized Mr. Musk's 2 attempt to aid in the rescue efforts by providing a mini-submarine as a "'PR stunt'" and stated that 3 Mr. Musk "'can stick his submarine where it hurts.'" (See id. at 95-96, ¶¶ 70-72.) In response to 4 Mr. Unsworth's interview, Mr. Musk posted several public statements on Twitter ("tweets") on 5 July 15, 2018, including one in which he referred to Mr. Unsworth as "pedo guy." (Id. at 97, ¶ 76; 6 see also Dkt. No. 20-6 at 2.) Mr. Musk deleted the July 15 tweets three days later, and in a July 18 7 tweet apologized to Mr. Unsworth. (Dkt. No. 2-1, Ex. W at 98, ¶ 80; see also Dkt. No. 20-8 at 2.) 8 On or about August 28 or 29, 2018, Mr. Musk responded on Twitter to a tweet regarding the 9 "pedo" comment by stating, in part, "You don't think it's strange he hasn't sued me?" (Dkt. No. 10 2-1, Ex. W at 99, ¶ 83; see also Dkt. No. 20-15 at 2.) Mr. Unsworth's counsel responded to Mr. 11 Musk's tweet shortly thereafter, tweeting that Mr. Musk "should check his mail before tweeting" 12 and attaching a copy of an August 6, 2018 demand letter from Mr. Unsworth's counsel to Mr. Northern District of California United States District Court 13 Musk in which counsel notes that he is "in the process of preparing a civil complaint for libel 14 against [Mr. Musk]." (Dkt. No. 2-1, Ex. W at 99, ¶ 87; see also 20-16 at 2.) 15 Mr. Mac is a journalist for BuzzFeed based in its San Francisco office. (Dkt. No. 3 at ¶ 1.) 16 On August 29, 2018, BuzzFeed published an article written by Mr. Mac entitled "The Cave 17 Rescuer Elon Musk Called A 'Pedo' Has Lawyered Up And Is Preparing A Libel Claim" 18 ("August Article"). (Id. at ¶ 3; see also Dkt. No. 3, Ex. B at 27.) Prior to publishing the August 19 Article, Mr. Mac emailed Mr. Musk the morning of August 29, 2018, seeking to "talk about the 20 letter." (Dkt. No. 20-17 at 5-6.) Mr. Musk responded to Mr. Mac's email within the hour, 21 questioning whether he had "even bothered to research basic facts." (Id. at 5.) Mr. Mac emailed 22 Mr. Musk the day after BuzzFeed published the August Article "to make sure [Mr. Mac] did [his] 23 due diligence to research basic facts and follow up." (Id. at 4.) Mr. Musk responded shortly 24 thereafter with an email stating, in part: 25 Off the record 26 I suggest that you call people you know in Thailand, find out what's actually going on and stop defending child rapists, you fucking 27 asshole." 28 (Id. at 3.) Mr. Musk then sent Mr. Mac another email on August 30, 2018 with the heading "On 2 2 1 background." (Dkt. No. 20-18 at 2.) The email primarily disputes Mr. Unsworth's 2 characterization of Mr. Musk's role in the rescue efforts. (See id.) 3 On September 4, 2018, Mr. Mac responded by email to Mr. Musk's August 30 "Off the 4 record" email. (Dkt. No. 20-17 at 3.) Mr. Mac's email states, in pertinent part, that he "didn't 5 agree for the conversation to be off the record." (Id.) Mr. Mac's email also asked Mr. Musk if he 6 had found anything to corroborate his "accusations" about Mr. Unsworth. (Id.) Roughly two 7 hours later, Mr. Musk responded by email, stating: 8 Off the record 9 We haven't had a conversation at all. I sent you an off the record email, which very clearly and unambiguously said "off the record." 10 If you want to publish off the record comments and destroy your journalistic credibility, that's up to you. 11 As for answering more questions, I would be happy to do so, but not 12 with someone who just told me that they will not honor accepted rules Northern District of California United States District Court of journalism. 13 14 (Id. at 2-3.) Mr. Mac responded by email that day, stating that he would "rather chat on the 15 record[,]" but that he was "happy to go off record with you moving forward so you can answer 16 specific questions regarding the allegations you've made." (Id. at 2.) Mr. Musk responded by 17 email within the hour, stating: 18 Off the record 19 I suggest you ask Unsworth to describe his whole [ ] 30 year history of visiting Thailand. What was he doing in Pattaya Beach for the 20 better part of a decade when there are no caves of note in the area? 21 (Id.) That evening, BuzzFeed published an article written by Mr. Mac and two other BuzzFeed 22 journalists entitled "In a New Email, Elon Musk Accused a Cave Rescuer of Being a 'Child 23 Rapist' and Said He 'Hopes' There's a Lawsuit" ("September Article"). (Dkt. No. 3 at ¶ 4; see 24 also Dkt. No. 3, Ex. C at 34.) The September Article includes, in its entirety, Mr. Musk's August 25 30, 2018 "Off the record" email in which he refers to Mr. Unsworth as a "child rapist[ ]." (See 26 Dkt. No. 3, Ex. C at 37, 46-47.) The Article also includes Mr. Musk's August 30, 2018 "On 27 background" email in its entirety. (See id. at 47-48.) As for Mr. Musk's use of "Off the record," 28 the September Article states: 3 2 Though Musk prefaced one email with "off the record," BuzzFeed 1 News did not agree to that condition of the correspondence. (Per common journalistic practice, a conversation is off the record only if 2 both parties agree to the terms.) 3 (Id. at 35-36.) Mr. Mac emailed Mr. Musk again on September 4, 2018, after BuzzFeed published 4 the Article. (See Dkt. No. 20-17 at 2; see also Dkt. No. 3, Ex. C at 34.) The email states, in 5 pertinent part: 6 I'm sure you've seen the story at this point. Still happy to talk to you on whatever terms you want as long as we set them beforehand. Let 7 me know if you want to do phone call. 8 (Dkt. No. 20-17 at 2.) Mr. Musk responded by email shortly thereafter, stating: "Get lost, you 9 creep." (Id.) 10 II. Procedural History 11 Mr. Unsworth filed the underlying lawsuit on September 17, 2018. (Dkt. No. 2-1, Ex. W.) 12 Mr. Musk issued a document subpoena to BuzzFeed in June 2019, seeking production of, among Northern District of California United States District Court 13 other things, copies of BuzzFeed's August and September Articles, and "internal policies, 14 memoranda, or any other documents concerning 'off the record' or 'on background' conversations 15 or communications with third parties." (Dkt. No. 2, Ex. O at 145.) BuzzFeed objected to the 16 subpoena, (Dkt. No. 2-1, Ex. P at 2), but agreed to produce certain documents, including the 17 August and September Articles, (id. at 5). BuzzFeed also provided a link to the online copy of its 18 News Standards and Ethics Guide. (Id. at 6-7.) In July 2019, Mr. Unsworth issued a document 19 subpoena to BuzzFeed, seeking production of, among other things, the August and September 20 Articles and BuzzFeed's website traffic related to same. (See Dkt. No. 2, Ex. L at 110-11.) 21 BuzzFeed objected to the subpoena, (Dkt. No. 2, Ex. M at 113), but agreed to produce 22 nonprivileged documents responsive to some requests for production, (see id. at 116-120). 23 Mr. Musk issued a second document subpoena to BuzzFeed in August 2019, (Dkt. No. 2-1, 24 Ex. Q at 15), seeking production of, among other things, copies of the News Standards and Ethics 25 Guides in effect during publication of both the August and September 2018 Articles and 26 documents related to any revisions of the News Standards and Ethics Guides, and 27 "communications concerning the decision to publish the contents of the August 30, 2018 emails" 28 from Mr. Musk to Mr. Mac, (id. at 23-24). BuzzFeed objected to the subpoena, (Dkt. No. 2-1, Ex. 4 2 1 R at 27), and produced only copies of the version of the News Standards and Ethics Guide that 2 were in effect at the relevant time and the documents it had also provided to Mr. Unsworth, (id. at 3 30-37). 4 On August 26, 2019, Mr. Musk issued a deposition subpoena to Mr. Mac noticing the 5 deposition for September 11, 2019. (Dkt. No. 2-1, Ex. S at 64.) Mr. Unsworth then issued a 6 deposition subpoena to Mr. Mac on September 6, 2019, also noticing the deposition for September 7 11, 2019. (See Dkt. No. 2-1, Ex. T at 69.) Counsel for BuzzFeed and Mr. Mac corresponded with 8 Mr. Musk's counsel via email regarding the Musk Subpoena, and on September 4, 2019 Mr. Mac 9 indicated that he would not appear and instead intended to file a motion to quash. (Dkt. No. 2-1, 10 Ex. U at 75.) On September 9, 2019, Mr. Musk proposed "go[ing] forward with a Rule 30(b)(6) 11 deposition instead" to avoid Mr. Mac's motion to quash and proposed 11 topics that such a 12 deposition would cover. (Id. at 73.) Counsel for BuzzFeed and Mr. Mac refused the offer, stating Northern District of California United States District Court 13 that the proposed "request calls for privileged matters related to BuzzFeed's newsgathering 14 materials and is, indeed, far broader than the request to Mr. Mac." (Id.) 15 Mr. Mac filed the instant motion to quash on September 13, 2019. (Dkt. No. 1.) Mr. 16 Unsworth and Mr. Musk have filed responses, (Dkt. Nos. 17 & 19), and Mr. Mac has filed a reply, 17 (Dkt. No. 28). The Court heard oral argument on October 17, 2019. 18 REQUESTS FOR JUDICIAL NOTICE 19 Mr. Mac requests that the Court take judicial notice of several exhibits submitted in 20 conjunction with the declaration of his counsel, Katherine M. Bolger, pursuant to Federal Rule of 21 Evidence 201. (See Dkt. Nos. 2 & 4.) Rule 201(b) provides that a judicially noticed adjudicative 22 fact must be one "that is not subject to reasonable dispute because it: (1) is generally known within 23 the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from 24 sources whose accuracy cannot reasonably be questioned." Fed. R. Civ. P. 201(b). Here, Mr. Mac 25 seeks judicial notice of the following news articles and public website posts: (1) Twitter exchange 26 posted on Elon Musk's Twitter account between July 3 and July 4, 2018; (2) "July 4, 2018 27 Business Insider article written by Tara Francis Chan entitled 'Elon Musk offers to help rescue the 28 Thai soccer team stuck in a cave'"; (3) July 6, 2018 BBC.com article written by Dearbail Jordan 5 2 1 entitled 'Elon Musk offers to help Thai cave rescue'"; (4) July 6, 2018 BuzzFeed article written by 2 Nicole Nguyen entitled 'Elon Musk Is Sending Engineers To Help With The Thai Soccer Team 3 Stuck In A Cave'"; (5) July 6, 2018 CNN article written by James Masters entitled 'Elon Musk 4 sends engineers to help Thai cave rescue mission'"; (6) "July 8, 2018 CNN article written by 5 Jackie Wattles entitled 'Elon Musk shares video of "kid-size" submarine for Thai cave rescue'"; 6 (7) "July 8, 2018 Business Insider article written by Matthew Michaels entitled 'Elon Musk posted 7 videos of the "kid-size submarine" he's sending to help save the boys trapped in a cave in 8 Thailand'"; (8) "September 6, 2018[ ] Atlantic article written by Marina Koren entitled 'Elon 9 Musk and the Meaning of "Off the Record"'"; and (9) "August 24, 2019 tweet from [Mr. 10 Unsworth's] counsel's public Twitter page stating that he had taken Musk's deposition and that 11 '[t]he emperor has no clothes.'" (Dkt. No. 4 at 3-4 (seeking judicial notice of Dkt. No. 2 – 2-1, 12 Exs. A-G, J, V).) Neither Mr. Unsworth nor Mr. Musk object to Mr. Mac's request for judicial Northern District of California United States District Court 13 notice or otherwise contest the authenticity of the above-cited exhibits. 14 Mr. Mac asserts that the documents above evidence facts (i.e., "the existence of news 15 reporting" on both Mr. Musk's tweets and "BuzzFeed's decision to publish [Mr. Musk's] emails," 16 and "the existence of a public tweet") that are not subject to reasonable dispute because the parties 17 cannot reasonably question the existence of the articles and tweets. (See Dkt. No. 4 at 3-4.) The 18 Court agrees that judicial notice is proper because the existence of the publicly-available articles 19 and tweets cannot reasonably be questioned. See Von Saher v. Norton Simon Museum of Art at 20 Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) ("Courts may take judicial notice of publications 21 introduced to indicate what was in the public realm at the time, not whether the contents of those 22 articles were in fact true") (internal quotation marks and citation omitted). Thus, the Court takes 23 judicial notice of the proffered exhibits. For the same reason, the Court also takes judicial notice 24 of the publicly-available tweets and news articles submitted in conjunction with the declaration of 25 Robert M. Schwartz in support of Mr. Musk's opposition to the instant motion. (See Dkt. Nos. 20- 26 6 – 20-8; 20-15 – 20-16; 20-19; see also Dkt. No. 21 (Mr. Musk's request for judicial notice).) 27 LEGAL STANDARD 28 Federal Rule of Civil Procedure 26(b) allows a party to obtain discovery concerning any 6 2 1 nonprivileged matter that is relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1). 2 Parties may seek discovery within the scope of Rule 26(b) by deposing a witness pursuant to Rule 3 30 or serving requests for production of documents pursuant to Rule 34. Rule 45 governs 4 discovery of nonparties by subpoena. The scope of discovery under Rule 45 is the same as under 5 Rule 26(b). Fed. R. Civ. P. 45 advisory committee's note (1970); Fed. R. Civ. P. 34(a). A non- 6 party subject to a subpoena may file a motion to quash or modify the subpoena. Fed. R. Civ. P. 7 45(d)(3)(A). A court must quash or modify a subpoena that: 8 (i) fails to allow a reasonable time to comply; 9 (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); 10 (iii) requires disclosure of privileged or other protected matter, if no 11 exception or waiver applies; or 12 (iv) subjects a person to undue burden. Northern District of California United States District Court 13 Id. Generally, the party moving to quash under Rule 45(d)(3) bears the burden of persuasion, but 14 "[t]he party issuing the subpoena must demonstrate that the information sought is relevant and 15 material to the allegations and claims at issue in the proceedings." Optimize Tech. Solutions, LLC 16 v. Staples, Inc., No. 14-MC-80095, 2014 WL 1477651, at *2 (N.D. Cal. Apr. 14, 2014) (internal 17 quotation marks and citation omitted); see also Am. Broad. Companies, Inc. v. Aereo, Inc., No. 18 CV-12-80300-RMW, 2013 WL 1508894, at *4 (N.D. Cal. Apr. 10, 2013) ("The burden of 19 showing that a subpoena is unreasonable and oppressive is upon the party to whom it is directed.") 20 DISCUSSION 21 Mr. Mac moves to quash both deposition subpoenas, asserting that they violate Federal 22 Rule of Civil Procedure 45(d)(3)(A) by: (1) requiring 'disclosure of privileged or other protected 23 matter'" under California's reporters' shield law, Cal. Const. art. I, § 2(b) and Cal. Evid. Code § 24 1070 (together, the "California Shield Law"); and (2) imposing an undue burden on Mr. Mac 25 because the testimony sought "is irrelevant to the legal issues in this case." (Dkt. No. 1 at 8.) 26 The Court addresses each subpoena in turn. 27 I. Unsworth Subpoena 28 Mr. Mac asserts that the Unsworth Subpoena must be quashed because it is "unduly 7 2 1 burdensome and would require disclosure of irrelevant, privileged information." (Dkt. No. 28 at 2 17.) At oral argument Mr. Unsworth clarified that his questioning of Mr. Mac will be limited to 3 (1) establishing that there were no communications between Mr. Mac and Mr. Musk other than the 4 emails at issue and, (2) "the fact of publication" (i.e., that BuzzFeed published the emails at issue). 5 As a percipient witness to some of the communications at issue in the underlying action, 6 Mr. Mac's testimony is relevant to Mr. Unsworth's claim. While these facts appear to be 7 undisputed by Mr. Musk, Mr. Mac is beyond the subpoena power of the Central District of 8 California and thus Mr. Unsworth cannot compel him to testify at trial; Mr. Unsworth is entitled to 9 preserve Mr. Mac's testimony in the event Mr. Musk takes a different position at trial. Further, 10 Mr. Unsworth's limited deposition topics do not fall under the scope of any privilege or the 11 California Shield Law, which provides that "newspersons 'shall not be adjudged in contempt. . . 12 for refusing to disclose any unpublished information obtained or prepared in gathering, receiving Northern District of California United States District Court 13 or processing of information for communication to the public.'"2 N.Y. Times Co. v. Super. Ct., 51 14 Cal. 3d 453, 458 (1990) (quoting Cal. Const. art. I, § 2(b) and noting that "[t]he provision's 15 statutory counterpart, Evidence Code section 1070, contains a virtually identical provision"). The 16 very limited testimony Mr. Unsworth seeks will not disclose unpublished information related to 17 Mr. Mac's newsgathering. 18 II. Musk Subpoena 19 As clarified in Mr. Musk's opposition to the instant motion, the Musk Subpoena "seeks 20 information concerning the generally applicable guidelines and policies of Mr. Mac and BuzzFeed 21 News with regard to honoring requests to treat information provided on an 'off the record' basis, 22 standards for sourcing articles, and policies for assessing potentially defamatory content." (Dkt. 23 No. 19 at 5.) Mr. Mac's reply in support of the instant motion asserts that the Court "need not 24 even reach the privilege issue and could quash pursuant to Rule 45 alone because 'any burden 25 26 2 Federal Rule of Evidence 501 provides that "in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Thus, because the underlying 27 action is a state law tort claim for defamation, consideration of the California Shield Law's applicability to the instant motion to quash is proper. See Star Editorial, Inc. v. United States Dist. 28 Ct., 7 F.3d 856, 859 (1993) (applying California law to "determin[e] the existence or extent of the privilege" in defamation action) (citing Fed. R. Evid. 501). 8 2 1 whatsoever [is] by definition undue' when the information sought is 'not relevant.'" (Dkt. No. 28 2 at 6 (citing Gonzales v. Google, Inc., 234 F.R.D. 674, 680 (N.D. Cal. 2006)).) The Court agrees 3 that the information sought is not relevant to Mr. Musk's defense in the underlying action. 4 A. Undue Burden 5 "[A] court determining the propriety of subpoena balances the relevance of the discovery 6 sought, the requesting party's need, and the potential hardship to the party subject to the 7 subpoena." Gonzales, 234 F.R.D. at 680. Where the information sought is not relevant to a claim 8 or defense "then any burden whatsoever imposed would be by definition 'undue.'" Compaq 9 Comput. Corp. v. Packard Bell Elecs., Inc., 163 F.R.D. 329, 335 (N.D. Cal. 1995). 10 Mr. Musk contends that the topics on which he seeks to depose Mr. Mac are relevant to 11 whether it was reasonably foreseeable to Mr. Musk that Mr. Mac would publish his emails not 12 withstanding his "off-the-record" notations. The Court disagrees. Northern District of California United States District Court 13 Reasonable foreseeability is predicated on the state of mind of the originator of the 14 defamatory matter (Mr. Musk) and not the secondary publisher (Mr. Mac or BuzzFeed). See 15 Schneider v. United Airlines, 208 Cal. App. 3d 71, 77 (1989) ("[A] party has a cause of action for 16 libel each time the defamatory matter is published, even if the originator of the defamatory matter 17 did not republish the defamatory matter, as long as republication should have been reasonably 18 foreseeable by the originator.") (emphasis added); see also Mitchell, 37 Cal. 3d at 281 (explaining 19 that "[t]he rationale for making the originator of a defamatory statement liable for its foreseeable 20 republication is the strong causal link between the actions of the originator and the damage caused 21 by the republication") (internal quotation marks and citation omitted). Indeed, the record in the 22 underlying action shows that Mr. Musk's recognizes that his state of mind is dispositive to the 23 issue of reasonable foreseeability. 24 Mr. Musk's pending motion for summary judgment asserts that "[i]t was not reasonably 25 foreseeable that BuzzFeed would unilaterally publish communications that were labeled off-the- 26 record instead of independently verifying the information before publishing it[ ]" because 27 "BuzzFeed's own published policies require such verification" and BuzzFeed's own newsroom 28 policies in place at the time required no 'agreement' to go off the record." (Dkt. No. 28-2 at 28 9 2 1 n.9 (citing BuzzFeed's News Standards and Ethics Guide in effect from January 5, 2018 to 2 November 1, 2018 (see Dkt. No. 2, Ex. H at 52) and the revised News Standards and Ethics Guide 3 in effect since November 2, 2018 (see Dkt. No. 2, Ex. I at 63) ("Interviews are always on the 4 record until a reporter agrees to go off the record or on background.")).) Mr. Musk's motion for 5 summary judgment notes that BuzzFeed added the "agreement" provision two months after Mr. 6 Musk "sent the off-the-record emails." (Id.) Further, Mr. Musk's declaration in support of his 7 motion for summary judgment attests that he has "had numerous off-the-record interactions with 8 reporters[,] and those "reporters treated information as off-the-record and did not publish it 9 whenever [Mr. Musk] identified it as such, regardless of whether or not [Mr. Musk and the 10 reporters] reached an explicit agreement before [Mr. Musk] shared the information." (Dkt. No. 11 28-3 at 11, ¶ 56.) Mr. Musk attests that he thus "understood that by designating [his] emails to 12 Mr. Mac as off-the-record and on background their contents would not be shared." (Id.) Northern District of California United States District Court 13 Questioning Mr. Mac as to "generally applicable guidelines and policies of Mr. Mac and 14 BuzzFeed News with regard to honoring requests to treat information provided on an 'off the 15 record' basis, standards for sourcing articles, and policies for assessing potentially defamatory 16 content," (see Dkt. No. 19 at 5), would serve no purpose in further supporting Mr. Musk's 17 "reasonable foreseeability" defense because it is Mr. Musk's state of mind that is at issue—not 18 Mr. Mac's understanding of BuzzFeed's general policies. The result might be different if there 19 was a dispute between Mr. Mac and Mr. Musk, or even Buzzfeed and Mr. Musk, as to what had 20 been communicated to Mr. Musk regarding off-the-record communications. But Mr. Musk agrees 21 that the only communications he had with Mr. Mac are the emails at issue; thus, Mr. Mac's 22 personal and uncommunicated understanding at the time he published the emails is not relevant to 23 Mr. Musk's defense to Mr. Unsworth's claim. 24 Mr. Musk also asserts that "the relevant [deposition] topics are not limited to reasonable 25 foreseeability, but also include safeguards that BuzzFeed News employs to ensure that they do not 26 publish defamatory articles." (Id. at 23.) However, Mr. Musk fails to explain how Mr. Mac's 27 testimony regarding any such "safeguards" is relevant to his defense. It is not. All that could be 28 relevant is Mr. Musk's understanding of any such safeguards and he does not require Mr. Mac's 10 2 1 testimony for that evidence. Mr. Musk further argues that he "is entitled to ask about the change 2 in the BuzzFeed News Standards and about Mr. Mac's compliance as a general matter with those 3 guidelines," as well as "BuzzFeed's and Mr. Mac's journalistic practices," because such testimony 4 will provide facts on which to base expert testimony regarding "treatment of off-the-record 5 requests." Again, the question is Mr. Musk's reasonable belief based on the information known to 6 him. An expert may be able to opine that Mr. Musk's belief was in accord with general practice in 7 the industry, or with how Mr. Musk's off-the-record conversations had been treated in the past, 8 but Mr. Musk has not identified how getting into Mr. Mac's unpublished thoughts or actions could 9 be a relevant basis for expert testimony. 10 It bears emphasizing that Mr. Unsworth is not seeking similar information from Mr. Mac 11 or Buzzfeed, nor are Mr. Mac or BuzzFeed voluntarily providing such information to Mr. 12 Unsworth. In other words, Mr. Unsworth is not attempting to prove that it was reasonably Northern District of California United States District Court 13 foreseeable to Mr. Musk that the emails would be published because of Mr. Mac's and 14 BuzzFeed's nonpublic practices and guidelines as to off-the-record statements. While the Court 15 believes such discovery would still ultimately be irrelevant and inadmissible, it would be unfair to 16 prevent Mr. Musk from discovering that evidence if Mr. Unsworth was attempting to use it. But 17 as his very limited discovery request of Mr. Mac shows, he is not. 18 Mr. Mac has demonstrated that the Musk Subpoena is unduly burdensome because the 19 testimony it seeks is not relevant. Mr. Musk, as "[t]he party issuing the subpoena," fails to rebut 20 Mr. Mac's showing by "demonstrat[ing] that the information sought is relevant and material to the 21 allegations and claims at issue in the proceedings." See Optimize Tech., 2014 WL 1477651, at *2 22 (internal quotation marks and citation omitted). Accordingly, the Court grants Mr. Mac's motion 23 to quash the Musk Subpoena. 24 CONCLUSION 25 For the reasons stated above, the Court GRANTS Mr. Mac's motion to quash the Musk 26 Subpoena and DENIES the motion to quash the Unsworth Subpoena. The deposition of Mr. Mac 27 is limited to the topics specified by Mr. Unsworth at oral argument, on direct examination and on 28 Mr. Musk's cross-examination. In particular, the Court finds good cause to issue a protective 11 2 1 order limiting the scope of the deposition—and Mr. Musk's cross-examination—to the two topics 2 discussed at oral argument: (1) establishing that there were no communications between Mr. Mac 3 and Mr. Musk other than the emails at issue; and (2) that BuzzFeed published those 4 communications. While in some cases the Court might give the cross-examiner more latitude, Mr. 5 Musk's request to question Mr. Mac or a Buzzfeed 30(b)(6) representative about irrelevant and 6 harassing topics such as "[t]he scope and existence of BuzzFeed's coverage of Elon Musk, Tesla, 7 or SpaceX," "BuzzFeed's policies for determining payment or bonuses based on article 8 popularity," and BuzzFeed's guidelines on social media usage by reporters," (see Dkt. No. 2-1, 9 Ex. U at 73), requires the setting of strict limitations here, especially since the record suggests Mr. 10 Musk feels animus toward non-party Mr. Mac. See Fed. R. Civ. P. 26(c)(1)(D) (providing that a 11 court may, "for good cause, issue an order to protect a party or person from annoyance, 12 embarrassment, oppression, or undue burden or expense, including. . . forbidding inquiry into Northern District of California United States District Court 13 certain matters, or limiting the scope of disclosure or discovery to certain matters"). 14 This Order disposes of Docket No. 1. 15 IT IS SO ORDERED. 16 Dated: October 28, 2019 17 18 JACQUELINE SCOTT CORLEY 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28 12