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Martin v. Group 1 Realty, Inc.

United States District Court, Tenth Circuit

July 1, 2013

KENNETH J. MARTIN, Plaintiff,
v.
GROUP 1 REALTY, INC., et al., Defendants.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

In this employment discrimination and wrongful termination action, Plaintiff asserts claims for gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, [1] disability discrimination and retaliation under the Americans with Disabilities Act ("ADA"), [2] and common law whistle-blower retaliation and wrongful discharge for making reports of warranty fraud against Defendants. This matter is currently before the Court on Plaintiff's Motion for Protective Order (ECF No. 39). Plaintiff requests that the Court issue a protective order under Fed.R.Civ.P. 26(c) barring Defendants from serving subpoenas upon his current and former employers, or, in the alternative, quashing the subpoenas under Fed.R.Civ.P. 45(c)(3). As set out in more detail below, the Court grants the motion in part and denies it in part.

I. Relevant Factual Background

On February 6, 2013, Defendants served Plaintiff with notices of their intent to issue subpoenas on Plaintiff's current employer, as well as four of Plaintiff's former employers. The subpoenas commanded Plaintiff's current and former employers to produce or permit inspection of the following documents concerning Plaintiff:

1) application for employment; 2) interview notes or papers; 3) background investigation reports; 4) hiring papers; 5) employment agreement(s); 6) job/performance evaluations; 7) signed acknowledgement forms relating to company policies and procedures; 8) training documents; 9) discipline and discharge information; 10) attendance information; 11) job duties/description; 12) payroll, wage, bonus, compensation information; 13) benefits; 14) any documents relating to any work-related Injury sustained by [Plaintiff] while employed with your Company; 15) any documents relating to allegations or complaints by or against [Plaintiff] of any nature, including any investigation of any such allegations or complaints and any notes, statements, reports, or correspondence of any sort; and 16) All charges or complaints made or filed by or against [Plaintiff] with any agency or court, including all investigation files and responses or position statements, and/or pleadings related to those charges or complaints.[3]

That same day, Plaintiff responded with his objections to the proposed subpoenas and requested a time to meet and confer.

On February 9, 2013, the parties arranged a meet and confer about their positions with respect to the proposed subpoenas, but were unable to resolve their dispute.[4] After Plaintiff filed this motion, the parties were able to resolve their dispute with regard to the proposed subpoena to be served upon Plaintiff's current employer[5] and all that remains at issue in the motion are the four proposed subpoenas to be served upon Plaintiff's former employers.

II. Standard for Ruling on a Motion for Protective Order Barring Subpoenas

Federal Rule of Civil Procedure 26(c) governs protective orders and provides that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, " including an order "forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters."[6] The movant must show good cause for the requested protective order.[7] To establish "good cause" within the meaning of Rule 26(c), the party must clearly define the potential injury to be caused by dissemination of the information.[8] The court has broad discretion to decide when a protective order is warranted, and if warranted, the scope of protection required given the situation.[9] Through Rule 26(c), the courts have "substantial latitude to fashion" an appropriate protective order after fairly weighing "the competing needs and interests of the parties affected by discovery."[10]

A party seeking a protective order to bar or prohibit service of subpoenas on nonparties implicates Rule 45, the Rule governing subpoenas. Although Rule 45 does not specifically provide for a relevancy or overbreadth objection, it is well settled "that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b) and 34."[11] Therefore, "the court must examine whether a request contained in a subpoena is overly broad or seeks irrelevant information under the same standards as the rules governing discovery requests served on parties."[12]

III. Plaintiff's Objections to the Proposed Subpoenas to be Served on His Former Employers

Plaintiff objects to the subpoenas on the grounds they seek wholly irrelevant information, are overly broad, and violate his constitutional right to privacy because they seek everything regarding his employment. Plaintiff argues that Defendants have no reasonable basis to believe that he failed to mitigate his damages or that he filed a claim of discrimination against anyone other than Defendants. He further argues that his prior employment has no bearing on whether he was subjected to discrimination and/or wrongfully terminated for complaining of warranty fraud in this case. Plaintiff maintains that the only possible relevant and discoverable information would be post-employment compensation records, which he has already provided to Defendants. Finally, Plaintiff argues that Defendants did not plead the after-acquired evidence defense, nor is it applicable in this case.

Defendants contend they are entitled to Plaintiff's prior employment records. They argue that these records are relevant to Plaintiff's claim for damages for emotional distress, pain and suffering, as well as past and future medical expenses. According to Defendants, information contained in Plaintiff's employment records regarding the alleged mistreatment or harassment by former employers would have a direct bearing on Plaintiff's damages in this case. These records may also contain information relevant to the credibility of Plaintiff's allegations of discrimination and retaliation. Defendants also argue that information in records pertaining to Plaintiff's health, medical conditions, absences from work, and/or ability to perform the functions of his position at his previous employers or subsequent or current employers may also be relevant to his disability discrimination ...


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