Frazier v. Bed Bath & Beyond, Inc et al

Filing 10

ORDER re 1 , 2 , 8 , 9 MOTION to Compel and MOTION to Appear by Telephone. Signed by Judge Nathanael M. Cousins on November 21, 2011. (nclc2, COURT STAFF) (Filed on 11/21/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Plaintiff,

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Case No. 11-mc-80270 RS (NC)

KEVIN FRAZIER,

v.
BED BATH & BEYOND, INC. and GARY
NEWTON,

ORDER GRANTING MOTION
TO COMPEL; DENYING
REQUEST FOR SANCTIONS;
AND DENYING MOTION TO
APPEAR BY TELEPHONE
Re: Docket Nos. 1, 2, 8, 9

Defendants.

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Defendants move to compel third party Fusionstorm to produce its personnel file

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for Plaintiff Frazier, a former employee at Fusionstorm. The issues presented are whether

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the personnel file from a prior employer is relevant to this employment dispute and

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whether the requested documents are protected from disclosure under privacy laws.

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Because the Court finds that the requested personnel file is relevant and that any privacy

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interests may be protected through a protective order, the motion to compel is granted.

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I. BACKGROUND
This discovery dispute arises from an action pending in the United States District

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Court for the District of New Jersey, Kevin Frazier v. Bed Bath & Beyond, Inc. and Gary

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Newton, Case No. 10-cv-5398. Plaintiff asserts claims of discrimination, harassment and

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retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Fair

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Labor Standards Act, and various state laws.

Case No. 11-mc-80270 RS (NC)
ORDER RE: MOTION TO COMPEL

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This particular motion to compel involves a document subpoena through which

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Defendants seek third party Fusionstorm’s personnel file for Plaintiff. (Dkt. No. 1).

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Plaintiff was employed by Fusionstorm from July 15, 2010 to March 15, 2011. Id.

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Fusionstorm objects to the subpoena claiming the documents sought are irrelevant and

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contain private and confidential information regarding Frazier. (Dkt. 2, Ex. D). Plaintiff

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has not taken a position in this discovery dispute.
II. DISCUSSION

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A.

Request for Plaintiff’s Prior Personnel File is Reasonably Calculated to
Lead to the Discovery of Admissible Evidence.

Defendants assert that Plaintiff’s employment records at Fusionstorm are relevant

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as to Plaintiff’s habits, or pattern and practice, of making similar discrimination claims

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against previous employers. (Dkt. No. 1, at 4). While making a boilerplate “relevance”

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objection, Fusionstorm has not specifically responded to Defendants’ relevance argument.

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(See Dkt. No. 2, Ex. D).

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Parties may obtain discovery regarding any nonprivileged matter that is relevant to

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any party’s claim or defense. Fed. R. Civ. P. 26(b). Discovery sought is relevant where it

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appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R.

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Civ. P. 26(b)(1). Under Fed. R. Evid. 406, “Evidence of the habit of a person or of the

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routine practice of an organization, whether corroborated or not and regardless of the

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presence of eyewitnesses, is relevant to prove that the conduct of the person or

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organization on a particular occasion was in conformity with the habit or routine

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practice.” Fed. R. Evid. 406.

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Here, the Court finds that in an employment dispute of this type, a request to a

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recent employer for personnel records is reasonably calculated to lead to the discovery of

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admissible evidence. It is reasonably calculated that the personnel files might contain

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evidence of habit (Fed. R. Evid. 406), or proof of motive, opportunity, intent, preparation,

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plan, knowledge, identity, or absence of mistake or accident (Fed. R. Evid. 404(b)).

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Fusionstorm’s files for Frazier are therefore discoverable under Rule 26.

Case No. 11-mc-80270 RS (NC)
ORDER RE: MOTION TO COMPEL

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B.

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Even if Fusionstorm’s documents are relevant, the Court must weigh the value of

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Plaintiff’s Privacy Concerns May Be Addressed By Protective Order.

the information sought against Frazier’s privacy interest in his prior personnel records.
Federal courts “recognize a constitutionally-based right of privacy that can be

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raised in response to a discovery request.” Soto v. City of Concord, 162 F.R.D. 603, 616

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(N.D. Cal. 1995). Resolution of a privacy objection requires courts to balance the need

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for the information sought against the privacy right asserted. Rubin v. Regents of Univ. of

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Calif., 114 F.R.D. 1, 4 (N.D. Cal. 1986) (court ordered the disclosure of peer review files

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after balancing Title VII claimant’s need to prove discrimination against the university’s

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claim of academic privilege). In the employment discrimination context, “a party seeking

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the discovery of personnel information must demonstrate, notwithstanding the breadth of

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discovery, that the value of the information sought would outweigh the privacy interests

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of the affected individuals.” Id.

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Courts commonly address a party’s privacy assertions by way of a protective

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order, designed to protect that party from annoyance, embarrassment, oppression, or

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undue burden or expense. Fed. R. Civ. P. 26(c)(1); see Kelly v. City of San Jose, 114

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F.R.D. 662, 666 (N.D. Cal. 1987) (court finding tightly drawn protective order sufficient

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to address confidentiality issues relating to disclosure of police manuals and

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memorandum in civil rights action).

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Here, Fusionstorm has asserted a privacy objection on Frazier’s behalf, without

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elaborating how release of the personnel records would harm Frazier. The Court finds

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that Frazier’s interests very likely could be addressed through a protective order that, for

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example, limits the persons that could access the information from the personnel files;

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and/or limits the use of the personnel files.

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Accordingly, the Court grants Defendants’ motion and orders Fusionstorm to

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produce all documents requested in the subpoena by December 5, 2011. Frazier and/or

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Fusionstorm, however, after meeting and conferring with counsel for Defendants, may

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seek a protective order from this Court under Fed. R. Civ. P. 26(c)(1) that would limit the

Case No. 11-mc-80270 RS (NC)
ORDER RE: MOTION TO COMPEL

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Defendants’ distribution and use of the personnel files.

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C.

Request for Sanctions Denied.

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Defendants also move for sanctions against Fusionstorm, arguing that Fusionstorm

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willfully failed to comply with a properly served subpoena under Fed. R. Civ. P. 45(e).

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Here, Fusionstorms’ objections on the basis of relevancy and privacy were procedurally

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proper under Fed. R. Civ. P. 45(c)(2)(b) and the Court finds that they were made in good

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faith. Accordingly, the Court denies Defendants’ request for sanctions.
III. CONCLUSION

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Defendants’ motion to compel is granted. Fusionstorm must produce responsive

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documents by December 5. Plaintiff or Fusionstorm may file a motion for a protective

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order that would limit the Defendants’ distribution and use of the personnel files.

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Finally, because the motion has been decided without a hearing under Civil Local

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Rule 7-1(b), Defendants’ motion to appear telephonically at the hearing is denied as moot

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(Dkt. No. 9).

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IT IS SO ORDERED.

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DATED: November 21, 2011
____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 11-mc-80270 RS (NC)
ORDER RE: MOTION TO COMPEL

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