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Smith v. Kansas Public Employees Retirement System

United States District Court, D. Kansas

March 13, 2019

JULIE A. SMITH, Plaintiff,



         This matter comes before the court upon Plaintiff's Motion to Quash Subpoenas and for Protective Order with Incorporated Suggestions in Support (ECF No. 27). Plaintiff contends that defendant's subpoenas to her current employer, a former coworker, and her medical providers are overbroad and unduly invasive. Defendant contends that the types of records it seeks are common and appropriate in an employment discrimination case and that plaintiff's actions necessitated the use of subpoenas.[1] For the reasons set forth below, plaintiff's motion is granted in part and denied in part.

         I. Factual and Procedural Background

         Plaintiff filed her complaint against defendant on June 25, 2018.[2] In her complaint, plaintiff alleges she began suffering from a medical condition that interfered with her work with defendant.[3] Plaintiff alleges five counts against defendant, including disparate treatment and retaliation, in violation of the Americans with Disabilities Act (ADA), [4] the Age Discrimination in Employment Act of 1967(ADEA), [5] and the Family Medical Leave Act (FMLA).[6] Plaintiff seeks compensatory and punitive damages among other remedies for her ADA retaliation claim. On November 12, 2018, plaintiff moved this court for leave to amend her complaint to more fully brief her ADEA complaint and to remove certain claims for damages.[7] On March 13, 2019, the court granted plaintiff's motion.[8]

         On November 29, 2018, defendant served nine subpoenas for documents and information to non-parties connected to plaintiff.[9] Defendant seeks all employment and personnel information and records concerning plaintiff from plaintiff's current employer, DeMarche Associates, Inc.[10] Defendant further seeks all documents sent to, received from, referring to or otherwise regarding plaintiff from 2013 to the present from plaintiff's coworker, Don Leonard.[11] Plaintiff worked with Leonard both at the defendant organization and at her current place of employment, and plaintiff has previously carpooled to and from work with Leonard. Defendant further seeks medical records from plaintiff's medical providers.[12]

         II. Discussion

         Plaintiff asserts that the subpoenas are both overly broad and unduly invasive of plaintiff's privacy rights. Plaintiff further argues the subpoenas seek cumulative discovery and the information may be obtained by less intrusive means. Defendant responds by arguing the subpoenas are narrowly tailored to plaintiff's claim and seek non-privileged information. Furthermore, defendant argues plaintiff created the need to use subpoenas in the first place.

         a. Legal Standards

         Two Federal Rules of Civil Procedure govern plaintiff's motion related to subpoenas to non-parties. Fed.R.Civ.P. 45 governs the issuance of subpoenas to non-parties. Fed.R.Civ.P. 45(d)(3)(A) requires the court to quash a subpoena when the subpoena requires disclosure of privileged or other protected matter, if no exception or waiver applies, and when the subpoena subjects a person to undue burden. Furthermore, “this court has long recognized that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b) and Rule 34.”[13] Fed. R. Civ. P 26(b) states that

[p]arties 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 state 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.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Relevance during discovery is broad, [14] and does not mean the information obtained would necessarily be admitted at trial.[15] If the party seeking discovery meets its initial, minimal burden to demonstrate its request is relevant on its face, the resisting party “must either demonstrate the discovery sought does not come within the broad scope of relevance defined in Rule 26(b)(1), or that it is of such marginal relevance that the potential harm caused by the discovery would outweigh the presumption in favor of broad disclosure.”[16] Conversely, when the relevancy of the discovery request is not readily apparent on its face, the party seeking the discovery has the burden to show the relevancy of the request.[17]

         With this legal framework in mind, the court now turns to the facts of this case.

         b. Standing

         Plaintiff argues that she has standing to challenge all nine of defendant's subpoenas. While defendant does not challenge plaintiff's standing to move to quash the subpoenas, standing is a threshold issue the court must consider. “A motion to quash a subpoena must be made by the party to whom the subpoena is directed, except in circumstances in which a party challenging the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena.”[18] A movant has a personal right with respect to his or her personnel file and applications for employment.[19] Furthermore, a movant has a personal right to privacy in his or her medical records.[20] Additionally, this court has found that a movant has a personal right in the communications of nonparties when the subpoena specifically identifies the movant as a subject or participant in the communications.[21]

         Here, plaintiff has standing to challenge all nine subpoenas. Defendant's subpoena to plaintiff's current employer seeks personnel files and records related to her employment. Furthermore, plaintiff has a demonstrable right of privacy in her medical records. Finally, the defendant narrows the Don Leonard subpoena to only documents involving or regarding plaintiff. Thus, plaintiff has standing to challenge the subpoena.

         c. Subpoena to Plaintiff's Current Employer

         Plaintiff argues that the subpoena of her current employer produces an undue burden on her, as the subpoena seeks private information, and the subpoena's broad scope may lead to harassment or embarrassment for plaintiff. Plaintiff notes that the request seeks “all employment and personnel information and records . . . concerning employment of Julie A. Smith from 2013 to present.” Plaintiff further argues that the subpoena is over broad and seeks irrelevant information, as her subsequent work history is not at issue in the case. Defendant responds by arguing that employment records are not privileged. Defendant further argues that plaintiff's overbreadth and relevancy arguments are insufficient to quash the subpoena.

         Plaintiff's privacy argument is unpersuasive. In general, personnel files, employment records, and similar documents are not privileged and are routinely discoverable in civil litigation.[22] Likewise, simply because employment records may contain private or personal information does not render them undiscoverable.[23] Privacy concerns can and should be addressed by making the information subject to a protective order limiting the parties' use and disclosure of the discovered, private information.[24] None of the caselaw plaintiff cites support plaintiff's position that the subpoena must be quashed merely because it includes private information. As plaintiff fails to establish that a privilege exists to require this court to quash defendant's subpoena, plaintiff's privacy argument is unpersuasive.

         Plaintiff's overbreadth and relevance arguments are likewise insufficient. In an employment discrimination case, defendants carry the burden to show “that the plaintiff failed to mitigate his or her damages.”[25] Any information tending to demonstrate plaintiff's efforts to obtain or maintain similar employment can be relevant to defendant's burden of proof at trial.[26]Thus, subsequent employment records are facially relevant in an employment discrimination case brought under ADEA.

         Plaintiff as the resisting party carries the burden to demonstrate that the discovery request seeks documents beyond the scope of discovery or is disproportional with the harm done to the resisting party. Plaintiff fails to demonstrate either. As defendant notes, [27] none of the cases plaintiff cites support plaintiff's proposition that seeking employment records and personnel files from a subsequent employer goes beyond the scope of discovery in an employment discrimination case. Plaintiff cites to Maddow v. Procter & Gamble Co., Inc., [28] for the proposition that only dates of employment, hours worked, and wage and benefits at subsequent employers is relevant to discovery, but Maddow merely agreed with a lower court decision that income tax forms and attorney fee arrangements were discoverable. It did not indicate a limitation on the scope of discovery in employment discrimination cases.

         Likewise, plaintiff's reliance on Maxwell v. Health Center of Lake City, Inc.[29] is misplaced. Maxwell is a racial discrimination and retaliation case and involved subpoenas for personnel records to the employee's former employers.[30] The Maxwell defendant sought these records to find admissible evidence of the plaintiff's work history, wage history, and other relevant evidence.[31] The Maxwell court determined that the blanket subpoena of the plaintiff's prior employers for the plaintiff's employment records was overly broad and would only lead to inadmissible character evidence, as prior work performance would not dictate the plaintiff's work at the defendant institution.[32] Here, plaintiff fails to explain why Maxwell ...

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