Guitron et al v. Wells Fargo Bank, N.A. et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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YESENIA GUITRON and JUDI KLOSEK,
Plaintiffs,
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No. C 10-3461 CW (MEJ)
DISCOVERY ORDER RE: DOCKET
NO. 42
v.
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WELLS FARGO BANK, N.A., et al.,
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Defendants.
_____________________________________/
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For the Northern District of California
UNITED STATES DISTRICT COURT
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INTRODUCTION
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Pending before the Court is the parties’ joint discovery dispute letter filed on September 9,
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2011. Dkt. No. 42.1 In the joint letter, Plaintiff Yesenia Guitron seeks to quash six subpoenas
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served by Defendants for the production of personnel records from Bank of America, Bank of the
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West, OneWest Bank, Umpqua Bank, Vintage Bank, and West America Bank, which are prior
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employers of Guitron (the “Subpoenas”). J. Letter at 2, Dkt. No. 42. The Subpoenas all seek the
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same personnel records, including applications for employment and resumes, performance
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reviews/evaluations, disciplinary/corrective action records, investigation records concerning
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Guitron’s conduct, termination records, and other personnel records reflecting Guitron’s work
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performance and conduct. J. Letter, Exs. A-F.
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Guitron argues that the Subpoenas are overbroad as to scope and time and seek documents
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protected by her right to privacy. Id. at 3. Specifically, she contends that the records are overbroad
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because they fail to specify any time frame. Id. She also argues that Defendants cannot establish an
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initial showing of relevancy to overcome her privacy interests. Id. at 4.
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The Court provided the factual background of this matter in its previous discovery order,
filed on August 4, 2011. Dkt. No. 40.
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In response, Defendants argue that the subpoenas do not ask for all of Guitron’s prior
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employment records, but only those records directly relevant to Defendants’ defenses and Guitron’s
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claims. Id. at 5. Defendants state that during the parties’ meet and confer process, Defendants
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offered to limit the scope of the subpoenas to the five-year period before Guitron commenced her
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employment with Wells Fargo, but she rejected their offer and, instead, moved forward
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with filing this letter brief. Id.
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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.
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R. Civ. P. 45(a)(1)(C). A party that is not the recipient of a subpoena has standing to challenge the
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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
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subpoena “where its challenge asserts that the information is privileged or protected to itself.”
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Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 695 (D. Nev.1994). Federal courts
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expressly recognize a constitutionally-based right of privacy that can be raised in response to
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discovery. Breed v. USDC, Northern District, 542 F.2d 1114, 1116 (9th Cir. 1976). An employee's
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personnel records and employment information are protected by this constitutional right to privacy.
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Bickley v. Schneider Nat., Inc., 2011 WL 1344195, at *2 (N.D. Cal. Apr. 8, 2011) (citations
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omitted).
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To evaluate privacy objections, the Court must balance the party’s need for the information
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against the individual’s privacy right in his or her employment files. Tierno v. Rite Aid Corp., 2008
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WL 3287035, at *3 (N.D. Cal. Jul. 31, 2008) (internal citations omitted). First, “the claimant must
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have a ‘legally protected privacy interest,’ such as an interest in precluding dissemination of
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sensitive information or in making intimate personal decisions without outside intrusion; second, the
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claimant must have a ‘reasonable expectation of privacy’ founded on broadly based community
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norms; third, the invasion of privacy must be ‘serious’; and fourth, the privacy interest must
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outweigh the countervailing interests, such as discovery rights.” Id. (quoting Pioneer Elec., Inc. v.
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Superior Court, 40 Cal.4th 360, 370-73 (2007)).
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APPLICATION TO THE CASE AT BAR
Here, the Court finds that Guitron has a legally protected privacy right in her employment
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records. However, the Court notes that, as Guitron initiated this lawsuit, her privacy interest is
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vastly reduced. Sirota v. Penske Truck Leasing Corp., 2006 WL 708910, at *2 (N.D. Cal. Mar. 17,
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2006) (permitting personnel record subpoenas addressed to the plaintiff’s former employers). With
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this in mind, Defendants maintain that the records they seek are directly relevant to: (1) establishing
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their after-acquired evidence defense; (2) establishing their legitimate, nondiscriminatory and non-
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retaliatory explanations for Guitron’s alleged adverse actions; (3) Guitron’s emotional distress
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damages; and (4) Guitron’s credibility and impeachment. Jt. Letter at 6.
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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
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position with them. Id. Former employment records are relevant to the after-acquired evidence
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defense available in Title VII employment discrimination cases. McKennon v. Nashville Banner
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Pub. Co., 513 U.S. 352, 363 (1995). “The ‘after-acquired evidence’ doctrine precludes or limits an
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employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence
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of wrongdoing that would have led to the employee’s termination had the employer known of the
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misconduct.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071 (9th Cir. 2004) (citing McKennon, 513
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U.S. at 360-63). “An employer can avoid backpay and other remedies by coming forward with
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after-acquired evidence of an employee's misconduct, but only if it can prove by a preponderance of
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the evidence that it would have fired the employee for that misconduct.” O’Day v. McDonnell
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Douglas Helicopter Co., 79 F.3d 756, 761 (9th Cir.1996). However, the Supreme Court in
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McKennon cautioned against the potential for abuse of the discovery process by employers seeking
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to limit their liability through an after-acquired evidence defense, noting the ability of courts to curb
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such abuses through the Federal Rules of Civil Procedure. 513 U.S. at 363. Some lower courts have
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held that the after-acquired evidence defense cannot be used to pursue discovery in the absence of
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some basis for believing that the after-acquired evidence of wrong-doing will be revealed. See, e.g .,
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First v. Kia of El Cajon, 2010 WL 3245778, at *2 (S.D. Cal. Aug. 17, 2010); Chamberlain v.
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Farmington Sav. Bank, 2007 WL 2786421, at *2 (D. Conn. Sep. 25, 2007); Maxwell v. Health Ctr.
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of Lake City Inc., 2006 WL 1627020, at *5 (M.D. Fla. Jun. 6, 2006).
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In their joint letter, both parties briefly present their positions on why the after-acquired
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evidence defense does or does not apply. These positions confirm that the defense may or may not
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be permitted, and that a decision at this initial point in the proceedings is not clear-cut. For example,
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Guitron argues that there is no evidence that she made misrepresentations in her employment
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application submitted to Defendants and that, when questioned at her deposition, she testified “that
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she was not fired or asked to resign from prior employment, that she was not disciplined for
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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
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conduct.” Id. at 4. Guitron also states that she was never asked if she “committed an act of
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asked if anyone ever accused her of engaging in unethical sales practices, and she responded, “No, I
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don’t think so.” Id. Guitron argues that Defendants failed to ask the questions they raise now “and
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that failure should not warrant an attempt to obtain that information through the most intrusive
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means – subpoenas served on every [one] of Guitron’s past employer[s] for over 13 years on shear
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speculation.” Id. Guitron also argues that Defendants cannot have it both ways: if they claim that
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she quit her job and was not terminated, than any prior wrongdoing cannot support a showing of
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relevancy because she was not terminated. Id.
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Defendants, on the other hand, argue that evidence that Plaintiff had failed to reveal on her
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application form that she was terminated or asked to resign or subjected to disciplinary action for
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unethical practices at a prior banking employer certainly would constitute misconduct of such
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severity that Wells Fargo would have terminated her employment for that reason alone. Id. at 6. In
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support of this argument, Defendants also cite to portion of Guitron’s deposition. Id. Namely, when
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asked whether her prior employers had ever accused her of engaging in unethical behavior, Guitron
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testified, “[y]eah, I’m not sure;” and when asked whether her prior employers ever investigated her
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for unethical or fraudulent activity, she responded, “[p]ossibly.” Id. Defendants further argue that
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whether Wells Fargo did or did not terminate Guitron’s employment is not pertinent because what
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matters is that she claims that it did. Id. Specifically, Defendants argue that if a fact finder were to
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determine that Wells Fargo did terminate Guitron’s employment, as she alleges, Defendants would
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be entitled to assert their after-acquired evidence of her application misrepresentations to bar or limit
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any liability resulting from that alleged wrongful termination. Id. at 6-7.
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Based on these arguments, it is not clear that an after-acquired evidence defense would be
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futile, and this decision is not appropriate in the context of a discovery dispute. Doyle v. Gonzales,
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2011 WL 3925045, at *5 (E.D. Cal. Sep. 7, 2011) (In matter referred for discovery, assigned
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magistrate judge found that the admissibility of documents for further substantive proceedings under
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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
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prudent to assume that discovery relating to this defense is fair game. Id. at *4.
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Next, Defendants argue that the records are relevant because they have asserted as a defense
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to Guitron’s discrimination and retaliation claims that they have legitimate, non-discriminatory and
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non-retaliatory reasons for their alleged adverse actions. Jt. Letter at 7. As an example, Defendants
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state that Guitron received warnings and poor performance reviews due to her poor sales
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performance, not any alleged discrimination or retaliation, and that her prior employment records
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reflecting her performance could directly support their defense. Id. Defendants also argue that the
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records are relevant for impeachment purposes and to test Guitron’s credibility. Id.
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In response, Plaintiff asserts that her deposition testimony establishes that she was never
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terminated for cause, asked to resign, or disciplined. Id. at 4. Plaintiff also argues that whatever
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conduct she engaged in at a former workplace is irrelevant to the conduct she engaged in with
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Defendants. Id.
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Upon review of the parties’ arguments, the Court finds that Defendants’ relevancy argument
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is a bit too generalized to support the requested discovery on relevancy grounds alone. Defendants
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seem unsatisfied with Guitron’s testimony that she was never terminated for cause, asked to resign,
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or disciplined; thus, they seek her personnel records to test her credibility. It is unclear to the Court
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how Guitron’s credibility can establish the relevancy of the requested records. However, the Court
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does find that the records could be relevant for impeachment purposes. If Guitron maintains that she
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was never terminated for cause, asked to resign, or disciplined, it would seem that Defendants are
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entitled to obtain her records as confirmation. Further, in the parties’ joint letter, Guitron provides
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no authority which establishes that Defendants are not entitled to the requested discovery for
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impeachment purposes. Instead, she cites two cases in which courts permitted limited discovery,
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and she argues that any discovery permitted here must also be narrowly drawn to ensure maximum
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protection of her privacy rights. The Court agrees that certain limitations are appropriate.
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First, Guitron cites to EEOC v. Vista Unified Sch. Dist., 2008 WL 4937000, at *2 (S.D. Cal.
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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
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because they did not include any time restrictions. While the court found that the defendant’s
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years of records. Id. Here, Defendants’ subpoenas seek thirteen years of records, but Defendants
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subsequently offered to limit the scope of the subpoenas to the five-year period before Guitron
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commenced her employment with Wells Fargo. Guitron does not address Defendants’ offer, and
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Defendants do not state why a five-year window for production is appropriate here. Accordingly,
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the Court finds that a reasonable compromise is to impose the same limit as the court in Vista, a case
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upon which Defendants rely in the parties’ joint letter. Accordingly, the Court shall limit production
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from March 2004 to March 2008, the four-year period prior to when Guitron worked at the Wells
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Fargo St. Helena branch.
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The second case to which Guitron cites is Sirota, 2006 WL 708910, at *2. In Sirota, the
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court found that the relevance of the subpoenaed employment records outweighed any intrusion into
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the plaintiff’s privacy, in part because the defendant did not ask for all of the plaintiff’s employment
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records but instead limited its request to the two most recent places of employment listed by the
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plaintiff on his job application. Id. The Court finds that this limitation is also appropriate here,
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where Defendants’ stated reasons for the requested discovery, while relevant, are largely
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speculative. However, as the Court does not know whether Guitron’s two previous employment
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positions date back to March 2004, Defendants shall be entitled to subpoena any other employer
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dating back to that time to allow them to obtain four years of records.
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CONCLUSION
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Based on the analysis above, the Court hereby ORDERS as follows: Defendants shall
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withdraw the issued subpoenas and re-issue them to obtain records from any of the employers listed
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above dating back to March 2004. The parties shall prepare and submit a proposed protective order
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for discovery in this case.
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IT IS SO ORDERED
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Dated: September 13, 2011
_______________________________
Maria-Elena James
Chief United States Magistrate Judge
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For the Northern District of California
UNITED STATES DISTRICT COURT
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