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)

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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

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