United States District Court, D. Kansas
JAMES P. O'HARA, Magistrate Judge.
The case is before the undersigned U.S. Magistrate Judge, James P. O'Hara, on defendants' motion for a protective order (ECF doc. 70). Specifically, defendants seek to prevent plaintiff from requesting certain securities-based information from third parties, arguing that such discovery is not only irrelevant but also serving to annoy, harass, and intimidate defendants' clients and interfere with defendants' business relationships. Plaintiff opposes defendants' motion, arguing that defendants have failed to confer and to show good cause. For the reasons discussed below, defendants' motion is granted.
For a very short period of time, from September 2011 until April 30, 2012, plaintiff worked for defendant Tortoise Capital Advisors, LLC ("Tortoise"), an investment management firm, as a vice president for business development. Following plaintiff's termination, he filed a federal lawsuit, asserting religious and national-origin discrimination claims against Tortoise pursuant to 42 U.S.C. § 2000e ("Title VII"), and claims against two individual defendants affiliated with Tortoise, pursuant to 42 U.S.C. § 1981. On February 24, 2014, plaintiff was granted leave to amend his complaint to add a claim against defendants for retaliation under the Dodd Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank Act") and a claim under 42 U.S.C. § 1985(3) for conspiracy to interfere with his civil rights. Plaintiff also had moved to add two claims against defendants under the Racketeer Influenced and Corrupt Organization Act ("RICO"),  alleging defendants made false and misleading representations to obtain minority status, committed mail and wire fraud, violated the National Stolen Property Act, and obstructed justice through witness tampering. But the court denied plaintiff's request to add RICO claims as futile and ordered him to delete all paragraphs composing his proposed RICO claims before filing his second amended complaint.
In December 2014, plaintiff signed and issued subpoenas to third parties requesting documents regarding defendants' alleged "securities law and other federal law violations." Specifically, plaintiff requested thirteen categories of documents from the City of Philadelphia, Board of Pensions and Retirement ("Philadelphia") regarding Tortoise's certification or registration as a minority business enterprise. Plaintiff requested seventeen categories of documents from Morgan Stanley & Co. LLC ("Morgan Stanley"), pertaining to the "covered call strategy component of the Tortoise Pipeline & Energy Fund." And, plaintiff requested fifteen categories of documents from Stan Sena of the MidAmerica Minority Business Development Council and MidAmerica Minority Supplier Development Counsel regarding Tortoise's certification or decertification as a minority or disadvantaged business enterprise.
Morgan Stanley and Philadelphia both served formal written objections, asserting that the subpoenas are overly broad, burdensome, and seek information that is privileged and irrelevant to the parties' claims and defenses. Notably, Morgan Stanley responded that plaintiff's claims are "limited to claims related to discrimination, retaliation, and conspiracy to interfere with Plaintiff's civil rights." And "[n]one of the requests  seek information related to, or in connection with, any of the above-mentioned claims." Mr. Sena complied with plaintiff's subpoena by producing all documents in possession of Mountain Plains Minority Supplier Development Counsel regarding the instant action. Plaintiff responded to Mr. Sena's production with an e-mail that threatened to file motions for contempt and to compel. Plaintiff also advised Mr. Sena that this was his last communication before getting the court involved. Plaintiff concluded his e-mail by warning Mr. Sena that "[g]iven your behavior, you will also most likely be deposed and may also be required to attend trial for testimony. Be prepared. And, rest assured." Understandably, Mr. Sena interpreted plaintiff's communication as a "threat" and explained how plaintiff's actions have "been most disruptive to [his] organization and have created unneeded costs, time, and effort." Mr. Sena also described plaintiff's actions as offensive and unprofessional.
After meeting resistance from the subpoenaed nonparties, plaintiff moved to amend his civil cover sheet. Plaintiff explained that his discovery requests have been met with "hindrances due to the current inaccurate summarization of the case." Plaintiff asked that the court include his Dodd-Frank Act claim on the civil cover sheet to reflect the "importance of the issues at stake... including numerous securities law and other federal law violations." Although the court denied plaintiff's motion,  defendants assert that the motion brought "to light an issue for which Defendants must now seek judicial intervention." Accordingly, defendants filed a motion for entry of protective order.
II. Motion for Protective Order
Federal Rule of Civil Procedure 26(c) provides that a court may, upon a showing of good cause, "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order has the burden to show good cause for it. To establish good cause, that party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." The decision to enter a protective order is within the court's discretion.
In their motion, defendants assert that plaintiff should not be permitted to engage in overly broad and harassing third-party discovery that is irrelevant to his claims. Defendants assert that plaintiff is attempting to broaden discovery beyond the second amended complaint by requesting documents that relate to withdrawn or precluded securities-based claims (i.e., his former RICO claims). Defendants explain that the third-party discovery sought by plaintiff has no bearing on his existing causes of action, all of which are employment-based claims. Yet, plaintiff admits that he is seeking discovery from these nonparties regarding securities law and other federal law violations. Defendants assert that the subpoenaed nonparties are valued clients with whom they have business relationships. Further, defendants insist that the harassment and annoyance of these nonparties is unjustified and must be stopped. Defendants point to the e-mail plaintiff sent to Mr. Sena to show how plaintiff is "annoying, harassing, intimidating and threatening Tortoise's clients and interfering with its business relationships without cause."
In his response, plaintiff asserts that the purpose of his opposition is: (1) to establish that his subpoenas conform with the discovery rules; (2) to show the court how defendants are using this motion as a way to manage public relations; and (3) to set the record straight about defendants' alleged lies in this matter. However, plaintiff first asks that the court deny defendants' motion for failure to confer in accordance with Fed.R.Civ.P. 26(c).
Rule 26(c) states that a motion for protective order "must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action." D. Kan. Rule 37.2 also provides that the court will not entertain a motion to resolve a discovery dispute pursuant to Rule 26 unless counsel has satisfied the above-described duty by making a "reasonable effort to confer" with the opposing party. The purpose behind this conference requirement is to encourage the parties to resolve discovery disputes without judicial involvement. To determine whether a party has satisfied the conference requirements, the court reviews all of the surrounding circumstances.
Here, plaintiff asserts that defendants did not confer or attempt to confer with him to resolve the dispute prior to filing their motion. Defendants respond that by reviewing plaintiff's response to their motion in conjunction with plaintiff's e-mail exchanges with the subpoenaed nonparties, it is clear that any such conferring would have been futile. Further, defendants assert that the recipients of the subpoenas already conferred in good faith with plaintiff and informed defense counsel of the same.
Although the court could deny defendants' motion for failure to sufficiently confer, given the particular circumstances of this case, the court declines to do so and will decide the motion on the merits. Based on the parties' submissions, it is clear that plaintiff has conferred with the subpoenaed nonparties. Additionally, the parties appeared before the undersigned for an informal telephone status conference during which they described their past communications and efforts regarding discovery to date. In consideration of the foregoing, the court will not deny defendants' motion on this basis. However, defendants are reminded that, prior to filing ...