Guitron et al v. Wells Fargo Bank, N.A. et al

Filing 44

DISCOVERY ORDER re 42 Letter Brief, filed by Wells Fargo Bank, N.A., Yesenia Guitron, Pam Rubio, Judi Klosek, Wells Fargo & Co.. Signed by Judge Maria-Elena James on 9/13/2011. (cdnS, COURT STAFF) (Filed on 9/13/2011)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

YESENIA GUITRON and JUDI KLOSEK,
Plaintiffs,

8

No. C 10-3461 CW (MEJ)
DISCOVERY ORDER RE: DOCKET
NO. 42

v.
9
WELLS FARGO BANK, N.A., et al.,
10
Defendants.
_____________________________________/

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

INTRODUCTION

13
14

Pending before the Court is the parties’ joint discovery dispute letter filed on September 9,

15

2011. Dkt. No. 42.1 In the joint letter, Plaintiff Yesenia Guitron seeks to quash six subpoenas

16

served by Defendants for the production of personnel records from Bank of America, Bank of the

17

West, OneWest Bank, Umpqua Bank, Vintage Bank, and West America Bank, which are prior

18

employers of Guitron (the “Subpoenas”). J. Letter at 2, Dkt. No. 42. The Subpoenas all seek the

19

same personnel records, including applications for employment and resumes, performance

20

reviews/evaluations, disciplinary/corrective action records, investigation records concerning

21

Guitron’s conduct, termination records, and other personnel records reflecting Guitron’s work

22

performance and conduct. J. Letter, Exs. A-F.

23

Guitron argues that the Subpoenas are overbroad as to scope and time and seek documents

24

protected by her right to privacy. Id. at 3. Specifically, she contends that the records are overbroad

25

because they fail to specify any time frame. Id. She also argues that Defendants cannot establish an

26

initial showing of relevancy to overcome her privacy interests. Id. at 4.

27
28

1

The Court provided the factual background of this matter in its previous discovery order,
filed on August 4, 2011. Dkt. No. 40.

1

In response, Defendants argue that the subpoenas do not ask for all of Guitron’s prior

2

employment records, but only those records directly relevant to Defendants’ defenses and Guitron’s

3

claims. Id. at 5. Defendants state that during the parties’ meet and confer process, Defendants

4

offered to limit the scope of the subpoenas to the five-year period before Guitron commenced her

5

employment with Wells Fargo, but she rejected their offer and, instead, moved forward

6

with filing this letter brief. Id.

7
8

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

party may serve a subpoena commanding a non-party to give testimony or produce documents. Fed.

11

R. Civ. P. 45(a)(1)(C). A party that is not the recipient of a subpoena has standing to challenge the

12
For the Northern District of California

party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Under Federal Rule of Civil Procedure 45, any

10

UNITED STATES DISTRICT COURT

9

subpoena “where its challenge asserts that the information is privileged or protected to itself.”

13

Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 695 (D. Nev.1994). Federal courts

14

expressly recognize a constitutionally-based right of privacy that can be raised in response to

15

discovery. Breed v. USDC, Northern District, 542 F.2d 1114, 1116 (9th Cir. 1976). An employee's

16

personnel records and employment information are protected by this constitutional right to privacy.

17

Bickley v. Schneider Nat., Inc., 2011 WL 1344195, at *2 (N.D. Cal. Apr. 8, 2011) (citations

18

omitted).

19

To evaluate privacy objections, the Court must balance the party’s need for the information

20

against the individual’s privacy right in his or her employment files. Tierno v. Rite Aid Corp., 2008

21

WL 3287035, at *3 (N.D. Cal. Jul. 31, 2008) (internal citations omitted). First, “the claimant must

22

have a ‘legally protected privacy interest,’ such as an interest in precluding dissemination of

23

sensitive information or in making intimate personal decisions without outside intrusion; second, the

24

claimant must have a ‘reasonable expectation of privacy’ founded on broadly based community

25

norms; third, the invasion of privacy must be ‘serious’; and fourth, the privacy interest must

26

outweigh the countervailing interests, such as discovery rights.” Id. (quoting Pioneer Elec., Inc. v.

27

Superior Court, 40 Cal.4th 360, 370-73 (2007)).

28
2

1
2

APPLICATION TO THE CASE AT BAR
Here, the Court finds that Guitron has a legally protected privacy right in her employment

3

records. However, the Court notes that, as Guitron initiated this lawsuit, her privacy interest is

4

vastly reduced. Sirota v. Penske Truck Leasing Corp., 2006 WL 708910, at *2 (N.D. Cal. Mar. 17,

5

2006) (permitting personnel record subpoenas addressed to the plaintiff’s former employers). With

6

this in mind, Defendants maintain that the records they seek are directly relevant to: (1) establishing

7

their after-acquired evidence defense; (2) establishing their legitimate, nondiscriminatory and non-

8

retaliatory explanations for Guitron’s alleged adverse actions; (3) Guitron’s emotional distress

9

damages; and (4) Guitron’s credibility and impeachment. Jt. Letter at 6.

10

First, Defendants argue that it has asserted an after-acquired evidence defense, and that the
information the subpoenas seek could show that Guitron committed fraud when she applied for a

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

position with them. Id. Former employment records are relevant to the after-acquired evidence

13

defense available in Title VII employment discrimination cases. McKennon v. Nashville Banner

14

Pub. Co., 513 U.S. 352, 363 (1995). “The ‘after-acquired evidence’ doctrine precludes or limits an

15

employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence

16

of wrongdoing that would have led to the employee’s termination had the employer known of the

17

misconduct.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071 (9th Cir. 2004) (citing McKennon, 513

18

U.S. at 360-63). “An employer can avoid backpay and other remedies by coming forward with

19

after-acquired evidence of an employee's misconduct, but only if it can prove by a preponderance of

20

the evidence that it would have fired the employee for that misconduct.” O’Day v. McDonnell

21

Douglas Helicopter Co., 79 F.3d 756, 761 (9th Cir.1996). However, the Supreme Court in

22

McKennon cautioned against the potential for abuse of the discovery process by employers seeking

23

to limit their liability through an after-acquired evidence defense, noting the ability of courts to curb

24

such abuses through the Federal Rules of Civil Procedure. 513 U.S. at 363. Some lower courts have

25

held that the after-acquired evidence defense cannot be used to pursue discovery in the absence of

26

some basis for believing that the after-acquired evidence of wrong-doing will be revealed. See, e.g .,

27

First v. Kia of El Cajon, 2010 WL 3245778, at *2 (S.D. Cal. Aug. 17, 2010); Chamberlain v.

28
3

1

Farmington Sav. Bank, 2007 WL 2786421, at *2 (D. Conn. Sep. 25, 2007); Maxwell v. Health Ctr.

2

of Lake City Inc., 2006 WL 1627020, at *5 (M.D. Fla. Jun. 6, 2006).

3

In their joint letter, both parties briefly present their positions on why the after-acquired

4

evidence defense does or does not apply. These positions confirm that the defense may or may not

5

be permitted, and that a decision at this initial point in the proceedings is not clear-cut. For example,

6

Guitron argues that there is no evidence that she made misrepresentations in her employment

7

application submitted to Defendants and that, when questioned at her deposition, she testified “that

8

she was not fired or asked to resign from prior employment, that she was not disciplined for

9

unethical conduct or for being disruptive, and that was [sic] she was never accused of that type of

dishonest[y] or breach of trust in prior employment.” Id. Rather, Guitron states that she was only

12
For the Northern District of California

conduct.” Id. at 4. Guitron also states that she was never asked if she “committed an act of

11
UNITED STATES DISTRICT COURT

10

asked if anyone ever accused her of engaging in unethical sales practices, and she responded, “No, I

13

don’t think so.” Id. Guitron argues that Defendants failed to ask the questions they raise now “and

14

that failure should not warrant an attempt to obtain that information through the most intrusive

15

means – subpoenas served on every [one] of Guitron’s past employer[s] for over 13 years on shear

16

speculation.” Id. Guitron also argues that Defendants cannot have it both ways: if they claim that

17

she quit her job and was not terminated, than any prior wrongdoing cannot support a showing of

18

relevancy because she was not terminated. Id.

19

Defendants, on the other hand, argue that evidence that Plaintiff had failed to reveal on her

20

application form that she was terminated or asked to resign or subjected to disciplinary action for

21

unethical practices at a prior banking employer certainly would constitute misconduct of such

22

severity that Wells Fargo would have terminated her employment for that reason alone. Id. at 6. In

23

support of this argument, Defendants also cite to portion of Guitron’s deposition. Id. Namely, when

24

asked whether her prior employers had ever accused her of engaging in unethical behavior, Guitron

25

testified, “[y]eah, I’m not sure;” and when asked whether her prior employers ever investigated her

26

for unethical or fraudulent activity, she responded, “[p]ossibly.” Id. Defendants further argue that

27

whether Wells Fargo did or did not terminate Guitron’s employment is not pertinent because what

28
4

1

matters is that she claims that it did. Id. Specifically, Defendants argue that if a fact finder were to

2

determine that Wells Fargo did terminate Guitron’s employment, as she alleges, Defendants would

3

be entitled to assert their after-acquired evidence of her application misrepresentations to bar or limit

4

any liability resulting from that alleged wrongful termination. Id. at 6-7.

5

Based on these arguments, it is not clear that an after-acquired evidence defense would be

6

futile, and this decision is not appropriate in the context of a discovery dispute. Doyle v. Gonzales,

7

2011 WL 3925045, at *5 (E.D. Cal. Sep. 7, 2011) (In matter referred for discovery, assigned

8

magistrate judge found that the admissibility of documents for further substantive proceedings under

9

the after-acquired evidence defense was entirely at the district court’s discretion.). Further, because
this defense has not been ruled upon by the presiding judge in this matter, the undersigned finds it

11

prudent to assume that discovery relating to this defense is fair game. Id. at *4.

12
For the Northern District of California

UNITED STATES DISTRICT COURT

10

Next, Defendants argue that the records are relevant because they have asserted as a defense

13

to Guitron’s discrimination and retaliation claims that they have legitimate, non-discriminatory and

14

non-retaliatory reasons for their alleged adverse actions. Jt. Letter at 7. As an example, Defendants

15

state that Guitron received warnings and poor performance reviews due to her poor sales

16

performance, not any alleged discrimination or retaliation, and that her prior employment records

17

reflecting her performance could directly support their defense. Id. Defendants also argue that the

18

records are relevant for impeachment purposes and to test Guitron’s credibility. Id.

19

In response, Plaintiff asserts that her deposition testimony establishes that she was never

20

terminated for cause, asked to resign, or disciplined. Id. at 4. Plaintiff also argues that whatever

21

conduct she engaged in at a former workplace is irrelevant to the conduct she engaged in with

22

Defendants. Id.

23

Upon review of the parties’ arguments, the Court finds that Defendants’ relevancy argument

24

is a bit too generalized to support the requested discovery on relevancy grounds alone. Defendants

25

seem unsatisfied with Guitron’s testimony that she was never terminated for cause, asked to resign,

26

or disciplined; thus, they seek her personnel records to test her credibility. It is unclear to the Court

27

how Guitron’s credibility can establish the relevancy of the requested records. However, the Court

28
5

1

does find that the records could be relevant for impeachment purposes. If Guitron maintains that she

2

was never terminated for cause, asked to resign, or disciplined, it would seem that Defendants are

3

entitled to obtain her records as confirmation. Further, in the parties’ joint letter, Guitron provides

4

no authority which establishes that Defendants are not entitled to the requested discovery for

5

impeachment purposes. Instead, she cites two cases in which courts permitted limited discovery,

6

and she argues that any discovery permitted here must also be narrowly drawn to ensure maximum

7

protection of her privacy rights. The Court agrees that certain limitations are appropriate.

8

First, Guitron cites to EEOC v. Vista Unified Sch. Dist., 2008 WL 4937000, at *2 (S.D. Cal.

9

Nov. 17, 2008), in which the Court found that the defendant’s subpoenas were overbroad as to time

subpoenas were therefore overbroad, it subsequently allowed limited production consisting of four

12
For the Northern District of California

because they did not include any time restrictions. While the court found that the defendant’s

11
UNITED STATES DISTRICT COURT

10

years of records. Id. Here, Defendants’ subpoenas seek thirteen years of records, but Defendants

13

subsequently offered to limit the scope of the subpoenas to the five-year period before Guitron

14

commenced her employment with Wells Fargo. Guitron does not address Defendants’ offer, and

15

Defendants do not state why a five-year window for production is appropriate here. Accordingly,

16

the Court finds that a reasonable compromise is to impose the same limit as the court in Vista, a case

17

upon which Defendants rely in the parties’ joint letter. Accordingly, the Court shall limit production

18

from March 2004 to March 2008, the four-year period prior to when Guitron worked at the Wells

19

Fargo St. Helena branch.

20

The second case to which Guitron cites is Sirota, 2006 WL 708910, at *2. In Sirota, the

21

court found that the relevance of the subpoenaed employment records outweighed any intrusion into

22

the plaintiff’s privacy, in part because the defendant did not ask for all of the plaintiff’s employment

23

records but instead limited its request to the two most recent places of employment listed by the

24

plaintiff on his job application. Id. The Court finds that this limitation is also appropriate here,

25

where Defendants’ stated reasons for the requested discovery, while relevant, are largely

26

speculative. However, as the Court does not know whether Guitron’s two previous employment

27

positions date back to March 2004, Defendants shall be entitled to subpoena any other employer

28
6

1

dating back to that time to allow them to obtain four years of records.

2

CONCLUSION

3

Based on the analysis above, the Court hereby ORDERS as follows: Defendants shall

4

withdraw the issued subpoenas and re-issue them to obtain records from any of the employers listed

5

above dating back to March 2004. The parties shall prepare and submit a proposed protective order

6

for discovery in this case.

7

IT IS SO ORDERED

8
9

Dated: September 13, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge

10

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7