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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 10 Plaintiff, 11 12 13 14 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. 15 16 17 Defendants move to compel third party Fusionstorm to produce its personnel file 18 for Plaintiff Frazier, a former employee at Fusionstorm. The issues presented are whether 19 the personnel file from a prior employer is relevant to this employment dispute and 20 whether the requested documents are protected from disclosure under privacy laws. 21 Because the Court finds that the requested personnel file is relevant and that any privacy 22 interests may be protected through a protective order, the motion to compel is granted. 23 24 I. BACKGROUND This discovery dispute arises from an action pending in the United States District 25 Court for the District of New Jersey, Kevin Frazier v. Bed Bath & Beyond, Inc. and Gary 26 Newton, Case No. 10-cv-5398. Plaintiff asserts claims of discrimination, harassment and 27 retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Fair 28 Labor Standards Act, and various state laws. Case No. 11-mc-80270 RS (NC) ORDER RE: MOTION TO COMPEL 1 This particular motion to compel involves a document subpoena through which 2 Defendants seek third party Fusionstorm’s personnel file for Plaintiff. (Dkt. No. 1). 3 Plaintiff was employed by Fusionstorm from July 15, 2010 to March 15, 2011. Id. 4 Fusionstorm objects to the subpoena claiming the documents sought are irrelevant and 5 contain private and confidential information regarding Frazier. (Dkt. 2, Ex. D). Plaintiff 6 has not taken a position in this discovery dispute. II. DISCUSSION 7 8 9 10 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 11 as to Plaintiff’s habits, or pattern and practice, of making similar discrimination claims 12 against previous employers. (Dkt. No. 1, at 4). While making a boilerplate “relevance” 13 objection, Fusionstorm has not specifically responded to Defendants’ relevance argument. 14 (See Dkt. No. 2, Ex. D). 15 Parties may obtain discovery regarding any nonprivileged matter that is relevant to 16 any party’s claim or defense. Fed. R. Civ. P. 26(b). Discovery sought is relevant where it 17 appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. 18 Civ. P. 26(b)(1). Under Fed. R. Evid. 406, “Evidence of the habit of a person or of the 19 routine practice of an organization, whether corroborated or not and regardless of the 20 presence of eyewitnesses, is relevant to prove that the conduct of the person or 21 organization on a particular occasion was in conformity with the habit or routine 22 practice.” Fed. R. Evid. 406. 23 Here, the Court finds that in an employment dispute of this type, a request to a 24 recent employer for personnel records is reasonably calculated to lead to the discovery of 25 admissible evidence. It is reasonably calculated that the personnel files might contain 26 evidence of habit (Fed. R. Evid. 406), or proof of motive, opportunity, intent, preparation, 27 plan, knowledge, identity, or absence of mistake or accident (Fed. R. Evid. 404(b)). 28 Fusionstorm’s files for Frazier are therefore discoverable under Rule 26. Case No. 11-mc-80270 RS (NC) ORDER RE: MOTION TO COMPEL 2 1 B. 2 Even if Fusionstorm’s documents are relevant, the Court must weigh the value of 3 4 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 5 raised in response to a discovery request.” Soto v. City of Concord, 162 F.R.D. 603, 616 6 (N.D. Cal. 1995). Resolution of a privacy objection requires courts to balance the need 7 for the information sought against the privacy right asserted. Rubin v. Regents of Univ. of 8 Calif., 114 F.R.D. 1, 4 (N.D. Cal. 1986) (court ordered the disclosure of peer review files 9 after balancing Title VII claimant’s need to prove discrimination against the university’s 10 claim of academic privilege). In the employment discrimination context, “a party seeking 11 the discovery of personnel information must demonstrate, notwithstanding the breadth of 12 discovery, that the value of the information sought would outweigh the privacy interests 13 of the affected individuals.” Id. 14 Courts commonly address a party’s privacy assertions by way of a protective 15 order, designed to protect that party from annoyance, embarrassment, oppression, or 16 undue burden or expense. Fed. R. Civ. P. 26(c)(1); see Kelly v. City of San Jose, 114 17 F.R.D. 662, 666 (N.D. Cal. 1987) (court finding tightly drawn protective order sufficient 18 to address confidentiality issues relating to disclosure of police manuals and 19 memorandum in civil rights action). 20 Here, Fusionstorm has asserted a privacy objection on Frazier’s behalf, without 21 elaborating how release of the personnel records would harm Frazier. The Court finds 22 that Frazier’s interests very likely could be addressed through a protective order that, for 23 example, limits the persons that could access the information from the personnel files; 24 and/or limits the use of the personnel files. 25 Accordingly, the Court grants Defendants’ motion and orders Fusionstorm to 26 produce all documents requested in the subpoena by December 5, 2011. Frazier and/or 27 Fusionstorm, however, after meeting and conferring with counsel for Defendants, may 28 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 3 1 Defendants’ distribution and use of the personnel files. 2 C. Request for Sanctions Denied. 3 Defendants also move for sanctions against Fusionstorm, arguing that Fusionstorm 4 willfully failed to comply with a properly served subpoena under Fed. R. Civ. P. 45(e). 5 Here, Fusionstorms’ objections on the basis of relevancy and privacy were procedurally 6 proper under Fed. R. Civ. P. 45(c)(2)(b) and the Court finds that they were made in good 7 faith. Accordingly, the Court denies Defendants’ request for sanctions. III. CONCLUSION 8 9 Defendants’ motion to compel is granted. Fusionstorm must produce responsive 10 documents by December 5. Plaintiff or Fusionstorm may file a motion for a protective 11 order that would limit the Defendants’ distribution and use of the personnel files. 12 Finally, because the motion has been decided without a hearing under Civil Local 13 Rule 7-1(b), Defendants’ motion to appear telephonically at the hearing is denied as moot 14 (Dkt. No. 9). 15 16 IT IS SO ORDERED. 17 DATED: November 21, 2011 ____________________________ NATHANAEL M. COUSINS United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 Case No. 11-mc-80270 RS (NC) ORDER RE: MOTION TO COMPEL 4

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