GAMLIEL MIZRAHI v. GOOGLE LLC (2024)

ORDER DENYING MOTION TO ENFORCE SUBPOENA

This dispute arises from plaintiff Gamliel Mizrahi's efforts to gather information about the defendant in a case that he filed in the District of New Jersey, Mizrahi v. Anna, No. 1:23-cv-02462 (D.N.J.). He initially served non-parties Google LLC (“Google”) and Meta Platforms, Inc. (“Meta”) with subpoenas in November 2023, seeking identifying information associated with accounts that he believed were linked to Aileen Anna, the defendant in the New Jersey case. Those subpoenas are the subject of this motion.

From Google, he sought the name and street address potentially associated with the account Aileen.Ann111@gmail.com. See Dkt. No. 2-1 at 59-60, 82. In response, Google provided him with a link to download what it describes as “basic subscriber information” associated with the account in question; it included the name and IP address associated with the account, but not a physical address because Google did not have that information. See Declaration of Brendan Sasso (“Sasso Decl.”) [Dkt. No. 16-1] ¶ 2.

From Meta, Mizrahi sought the name and street address potentially associated with the WhatsApp account listed in his New Jersey complaint. See Dkt. No. 2-1 at 59-60. In response, Meta explained that it could not locate a WhatsApp account associated with the phone number that he listed in his subpoena; it certified as much in a sworn attestation. See Certificate of Absence or Nonexistence of Automatically Recorded Business Records (“Sworn Certificate”) [Dkt. No. 6-1]; see also Declaration of John Roche (“Roche Decl.”) [Dkt. No. 6-2] ¶¶ 2-3; Roche Decl. Ex. A (email from Meta's counsel to Mizrahi).

After receiving these responses, Mizrahi filed a motion to enforce the subpoenas in this court, claiming that Google and Meta had both “refused to provide the name and address” that he requested. See Dkt. No. 1. Counsel for Google emailed Mizrahi and explained that Google had produced the records and asked whether he had trouble accessing them. See Dkt. No. 10 at 23. He apparently did not respond, but he did file a motion for extension of time in the New Jersey case, still claiming that he had not received the records, and noting that he had filed this enforcement action in California. See generally Dkt. No. 10. In response, Google once again produced the records that it had, see Sasso Decl. ¶ 6, and Meta reiterated that it did not have the information that Mizrahi sought. See Dkt. No. 25; see also Dkt. Nos. 6, 6-1 (the Sworn Certificate). Mizrahi replied that both Google and Meta had been “delay[ing]” producing the requested information and asked that the court “punish” both defendants for that delay and order them to produce more information associated with the accounts he identified. See Dkt. No. 26 ¶¶ 6-8.

Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1) (emphasis added). Courts in this circuit have explained that if a reasonable search fails to locate any documents responsive to a particular request, the response to the request should state as much. See In re Pioneer Corp., No. CV 18-4524 JAK (SSX), 2019 WL 5401015, at *6 (C.D. Cal. Jan. 9, 2019). “A requesting party's mere suspicion that additional documents exist is an insufficient basis to grant a motion to compel.” Id. at *6; see also e.g., Bethea v. Comcast, 218 F.R.D. 238, 239 (D.D.C. 2003) (holding that the requesting party's suspicion that the responding party had failed to produce responsive documents did not justify compelled inspection). The party moving to compel must be able to allege more than the mere possibility that all relevant documents were not produced. See Ayala v. Tapia, 1991 WL 241873, at *2 (D.D.C. Nov. 1, 1991); see also Lawyers Title Ins. Co. v. United States Fidelity & Guaranty Co., 122 F.R.D. 567, 570 (N.D. Cal. Nov. 10, 1988). A court cannot order the production of documents that it has no reason to believe exist.

Google and Meta have shown that they either, in Google's case, produced all the information that it had about the identified account, see Dkt. No. 16-1, or, in Meta's case, searched its records and did not find the information that Mizrahi seeks, see Dkt. No. 6-2. Mizrahi claims that the responses that Google and Meta provided to him were “not credible.” See Dkt. No. 28 ¶ 9. He states that Meta's response that it does not have the information he seeks is a “lie,” and its Sworn Certificate is a “false statement.” Id. ¶ 5. He claims that he “never received any communications of information” from either Google or Meta. Id. But he offers no evidence in support of these allegations.

The evidence produced by Google and Meta shows that both parties conducted reasonable searches and either produced the relevant information that they found or otherwise certified that no such information existed. In the absence of any evidence suggesting that either party is withholding information, their sworn statements showing that they have already complied with the subpoenas are sufficient to make Mizrahi's motion to enforce the subpoenas moot. The motion to enforce is DENIED.

IT IS SO ORDERED.

William H. Orrick United States District Judge