Equal Employment Opportunity Commission v. Evening Entertainment Group LLC

Filing 39

ORDER granting 24 Motion to Quash; granting 24 Motion for Protective Order. Signed by Judge Frederick J Martone on 6/20/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Opportunity)
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Plaintiff,
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vs.
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Evening Entertainment Group LLC,
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Defendant.
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Equal Employment
Commission,

CV 11-01870-PHX-FJM
ORDER

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The court has before it plaintiff's motion to quash and/or motion for protective order
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(doc. 24), defendant's response (doc. 29), and plaintiff's reply (doc. 35).
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Plaintiff alleges in this Title VII action that defendant removed Keli Kozup, a
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bartender and server, from its Sunday shift schedule in October 2008 because she was
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pregnant. Plaintiff alleges that defendant instituted a policy of removing pregnant women
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from the Sunday work schedule because of its perception that its customers did not want to
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see pregnant women while watching football.
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On May 3, 2012, defendant issued subpoenas to three non-party former employers of
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Kozup.1 Mot. to Quash, ex. 1. Each subpoena requests production of "any and all personnel

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files and other records" relating to Kozup, "including but not limited to" six categories of
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The subpoenas were issued to Bobby McGee's of Arizona, Inc., Farmers Insurance
Company of Arizona, and Padre Murphy's.

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information. Id. Plaintiff moves to quash the subpoenas, arguing both that the subpoenas

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are overly broad and that Kozup's former employment records are irrelevant.

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We must quash or modify any subpoena that requires disclosure of protected matter

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or places an undue burden on a person. Fed. R. Civ. P. 45(c)(3)(A). The scope of discovery

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for non-party subpoenas is identical to that under Rule 26, Fed. R. Civ. P. Lewin v. Nackard

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Bottling Co., CV-10-8041-PCT-FJM, 2010 WL 4607402, at *1 n.1 (D. Ariz. Nov. 4, 2010).

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In general, defendant is entitled to discovery that is reasonably calculated to lead to

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admissible evidence. Fed. R. Civ. P. 26(b)(1). However, we may upon motion and for good

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cause enter a protective order limiting discovery to protect a person "from annoyance,

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embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). We may

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also limit discovery when it can be obtained from another source that is "more convenient,

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less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(C)(i).

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Here, although the subpoenas include a request for documents within six enumerated

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categories, they are "not limited to" the categories. Mot. to Quash, ex. 1. Instead, the

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subpoenas request "any and all personnel files and other records." Id. Defendant's blanket

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requests for all personnel records from three former employers are overbroad on their face

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and amount to a fishing expedition. See Lewin, 2010 WL 4607402, at *1 (D. Ariz. Nov. 4,

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2010) (quashing subpoenas requesting plaintiff's complete personnel records from former

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employers as overbroad); Maxwell v. Health Ctr. of Lake City, Inc., 3:05-CV-1056-J-

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32MCR, 2006 WL 1627020, at *3 (M.D. Fla. June 6, 2006) (quashing subpoenas requesting

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plaintiff's complete personnel records from former employers as overbroad). Accordingly,

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we will grant plaintiff's motion for a protective order. Defendant may redraft subpoenas that

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are more limited in scope. Plaintiff, however, also disputes the relevancy of the information

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sought. We address the issue here in an effort to prevent future disputes over these matters.

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Defendant first argues that Kozup's shift preferences and earnings at her former

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restaurant employers are relevant to damages. But whether or not Kozup preferred to work

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certain shifts at other restaurant jobs is not relevant to the allegations that defendant removed

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her from certain shifts because she was pregnant. And defendant has not shown how Kozup's
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prior earnings are relevant to damages, or why this information could not first be requested

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from Kozup. See Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 254-55 (S.D. Ind. 2002);

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Maxwell, 2006 WL 1627020, at *3. Although there was a period of time when Kozup

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worked for both Bobby McGee's and defendant, plaintiff notes that she had stopped working

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at all three former employers before defendant's allegedly discriminatory conduct in October

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2008, and before the period for which Kozup is seeking compensatory damages. Thus,

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evidence relating to Kozup's shift preferences and past earnings is not reasonably likely to

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lead to admissible evidence.

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Next, defendant argues that Kozup's employment records are relevant to determine

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causation of her emotional distress, because prior discipline, poor performance, harassment

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or termination could be the cause of Kozup's emotional pain, rather than defendant's conduct.

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It is possible that Kozup's distress, if caused by experiences with former employers, could

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affect her emotional distress damages. Although we cannot tell whether there is any

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temporal link between Kozup's employment with Farmers Insurance and Padre Murphy's to

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suggest that her employment experiences might have caused lingering emotional distress in

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October 2008, Kozup did not end her employment with Bobby McGee's until after she was

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already working with defendant. Thus, at least with respect to Bobby McGee's, records

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concerning Kozup's discipline, poor performance, harassment or termination may be

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reasonably calculated to lead to admissible evidence, at least for the limited purpose of

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identifying possible causes of emotional distress. See Breeze v. Royal Indem. Co., 202

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F.R.D. 435, 436 (E.D. Pa. 2001) (denying motion to quash subpoena requesting husband's

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employment records, because the records might suggest whether plaintiff's emotional distress

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was caused by defendant's termination of her employment, or whether it was caused by

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marital stress).

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Finally, defendant argues that evidence of any complaints, grievances, or claims filed

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by Kozup against her former employers is relevant to her credibility, state of mind, and

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motive. Attacks on credibility by introducing evidence of prior conduct in an employment

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setting is likely inadmissible under Rule 404(a), Fed. R. Evid. Lewin, 2010 WL 4607402,
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at *2. However, the act of bringing prior frivolous discrimination complaints might be

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admissible under Rule 404(b), Fed. R. Evid. to prove motive or intent. Thus, discovery into

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prior complaints filed by Kozup could lead to admissible evidence. We note, however, that

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this information might be obtained from Kozup without imposing the expense and burden

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on her non-party former employers. See Fed. R. Civ. P. 45(c)(1).

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We will grant plaintiff's motion for a protective order due to the overbroad nature of

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the subpoenas as presently drafted. However, as discussed above, some of the information

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sought by defendant may be relevant. We encourage the parties to confer and reach

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agreement as to the discovery sought by defendant, keeping in mind that some of the

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information might be obtained directly from Kozup.
Accordingly, IT IS ORDERED GRANTING plaintiff's motion to quash and/or
motion for protective order (doc. 24).
DATED this 20th day of June, 2012.

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