Russell v. City of Tampa, Florida

Filing 37

ORDER granting in part and denying in part 26 Plaintiff's Amended Motion to Quash Non-Party Subpoenas or, Alternatively, Amended Motion for Protective Order, and granting 29 Plaintiff's Motion to Quash Non-Party Loomis Subpoena or, Alternatively, Motion for Protective Order. Signed by Magistrate Judge Julie S. Sneed on 7/5/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEE RUSSELL,
Plaintiff,
v.

Case No: 8:16-cv-912-T-30JSS

CITY OF TAMPA, FLORIDA,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court on Plaintiff’s Amended Motion to Quash Non-Party
Subpoenas or, Alternatively, Amended Motion for Protective Order (“First Motion”) (Dkt. 26),
and Defendant’s response in opposition (Dkt. 30), and Plaintiff’s Motion to Quash Non-Party
Loomis Subpoena or, Alternatively, Motion for Protective Order (“Second Motion”) (Dkt. 29),
and Defendant’s response in opposition (Dkt. 34). For the reasons that follow, the First Motion is
granted in part and denied in part and the Second Motion is granted.
BACKGROUND
Plaintiff was employed by Defendant as a Solid Waste Collection Driver. (Dkt. 1 ¶ 9.) In
July 2013, Plaintiff alleges he was diagnosed with a medical condition that Defendant failed to
reasonably accommodate. (Id. ¶¶ 11–12.) He filed a charge of discrimination on July 30, 2013,
and, after exhausting his administrative remedies, filed a lawsuit in state court on March 13, 2014,
alleging that Defendant failed to reasonably accommodate his disability (“Discrimination
Lawsuit”).1 (Id. ¶¶ 12–13.)

1

Plaintiff’s Discrimination Lawsuit was removed to federal court. Dee Russell v. City of Tampa, 8:14-cv-00814EAK-AEP (M.D. Fla. April 7, 2014).

Plaintiff alleges that while operating a solid waste vehicle as Defendant’s employee on
December 18, 2014, he was involved in an accident. (Id. ¶ 14.) Specifically, while waiting in line,
he stopped and exited the vehicle to speak to another solid waste vehicle driver. (Id. ¶¶ 15–17.)
After speaking to the other driver for about five to ten minutes, his vehicle moved, hitting the back
of the truck in front of it. (Id. ¶¶ 17–18.) While Plaintiff believed he pulled the parking brake
before exiting his vehicle, Defendant, as a result of its own investigation of the accident, concluded
that Plaintiff did not pull the parking brake and, therefore, admonished Plaintiff. (Id. ¶¶ 19–26.)
In response to Defendant’s determination, Plaintiff filed a grievance on January 29, 2015.
(Id. ¶ 27.) After a hearing, Defendant issued a “Letter of Counseling,” finding that the December
18, 2014 accident was preventable. (Id. ¶¶ 29–36.) In April 2015, as part of his Discrimination
Lawsuit, Plaintiff deposed Defendant’s Solid Waste Director (“Director”). (Id. ¶ 37.) Within a
month of the deposition, Plaintiff alleges that the Director issued a notice of disciplinary action to
Plaintiff, accusing Plaintiff of making false statements regarding his belief that he set the parking
brake to police officers who came to the scene of the accident and to Defendant’s officials,
including the Director, during Defendant’s investigation of the accident and the grievance process.
(Id. ¶¶ 40–47.) At a hearing in connection with its disciplinary action against Plaintiff, Defendant
showed Plaintiff video footage of the accident, which showed that Plaintiff did not pull the parking
brake. (Id. ¶¶ 44–47.) Thereafter, Defendant terminated Plaintiff, concluding that he intentionally
lied in violation of Defendant’s policies. (Id.)
In his Complaint, Plaintiff alleges that Defendant terminated him after he deposed the
Director in retaliation for prosecuting his Discrimination Lawsuit. (Id. ¶¶ 55–56.) As a result,
Plaintiff alleges he has suffered, in relevant part, lost wages, lost benefits, emotional distress, loss
of enjoyment of life, and mental anguish. (Id. ¶ 57.) In response, Defendant alleges that it

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terminated Plaintiff after learning that he “falsified and misrepresented facts during the course of
a grievance hearing” in violation of Plaintiff’s employment contract. (Dkt. 10 at 7.) Further,
Defendant alleges that Plaintiff has no damages or failed to mitigate his alleged damages. (Id.)
In the motions, Plaintiff seeks to quash subpoenas issued to his medical insurance provider,
medical provider, cell phone carrier, and current employer. Through these non-party subpoenas,
Defendant seeks Plaintiff’s medical records, cell phone records for the day of and surrounding the
accident, and personnel file from his current employer. Plaintiff makes concessions as to the
relevance of some of the discovery sought through the subpoenas, but argues generally that the
subpoenas are overly broad.
APPLICABLE STANDARDS
Courts maintain great discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901
F.2d 927, 929 (11th Cir. 1990). The court has broad discretion to compel or deny discovery.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Through
discovery, parties may obtain materials that are within the scope of discovery, meaning they are
nonprivileged, relevant to any party’s claim or defense, and proportional to the needs of the case.
Fed. R. Civ. P. 26(b)(1). Courts consider the following factors: (1) “the importance of the issues
at stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to relevant
information,” (4) “the parties’ resources,” (5) “the importance of the discovery in resolving the
issues,” and (6) “whether the burden or expense of the proposed discovery outweighs its likely
benefit.” Id.
A court must quash or modify a subpoena that “requires disclosure of privileged or other
protected matter, if no exception or waiver applies.” Id. at 45(d)(3)(A)(iii). Further, a protective
order may be issued for good cause to protect a person from annoyance, embarrassment,

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oppression, or undue burden or expense, by forbidding the discovery, forbidding inquiry into
certain matters, or limiting the scope of disclosure or discovery to certain matters. Id. at
26(c)(1)(A), (D). The party seeking a protective order has the burden of demonstrating good cause.
Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429–30 (M.D. Fla. 2005).
“‘Good cause’ is a well established legal phrase. Although difficult to define in absolute terms, it
generally signifies a sound basis or legitimate need to take judicial action.” In re Alexander Grant
& Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).
ANALYSIS
As a preliminary matter, Plaintiff has standing to move to quash the subpoenas because he
alleges a “personal right or privilege” with respect to the information sought in the subpoenas.
Auto-Owners Ins. Co., 231 F.R.D. at 429 (quoting Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.
1979)). Further, as a party, Plaintiff has standing to move for the entry of a protective order on the
basis that “the subpoenas seek irrelevant information.” Id; see Fed. R. Civ. P. 26(b)(2)(C)(iii).
I.

First Motion
In the First Motion, Plaintiff seeks an order either quashing or issuing a protective order

for subpoenas Defendant served on the following three non-parties: (1) Plaintiff’s medical
insurance provider UnitedHealthcare of Florida, Inc. (“United”), (2) Plaintiff’s medical provider
Wellness Center (“Wellness”), and (3) Plaintiff’s cell phone service provider T-Mobile USA, Inc.
(“T-Mobile”). (Dkt. 26.)
Defendant seeks all of Plaintiff’s medical records from June 2014 to the present from
United and all of Plaintiff’s medical records from January 2015 through the present from Wellness.
(Dkts. 26-1, 26-2.) Defendant seeks Plaintiff’s cell phone records from December 17, 2014,

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through December 20, 2014, from T-Mobile. (Dkt. 26-3.) For the reasons that follow, the First
Motion is granted in part and denied in part.
A.

Medical Records

Plaintiff concedes that he has put his mental condition in controversy and therefore does
not object to United’s and Wellness’s production of his psychiatric records and medical bills for
“a limited time period prior to his termination” through his May 7, 2015 termination, specifically
from June 1, 2014, through December 31, 2015. (Dkt. 26 at 7–8.) He does, however, object to
the production of any non-psychiatric records that do not relate to his claim for emotional damages.
(Id.)
In response, Defendant explains that in his Discrimination Lawsuit, Plaintiff alleged he
was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) after being involved in an accident
while driving a solid waste truck while working for Defendant in June 2012. (Dkt. 30 at 3);
(Russell, 8:14-cv-00814-EAK-AEP, Dkt. 2.) Plaintiff requested Defendant’s permission to drive
a particular solid waste truck to ease his PTSD symptoms, which Plaintiff alleges Defendant
denied. In the Discrimination Lawsuit, the Court granted Defendant’s motion for summary
judgment, finding that Defendant did not fail to reasonably accommodate Plaintiff’s disability.
Russell, 8:14-cv-00814-EAK-AEP, Dkt. 44.
Relevant to this case, Defendant states that in the course of discovery in the Discrimination
Lawsuit, Plaintiff averred in response to interrogatories that he first began experiencing symptoms
of PTSD in June 2013, and that records obtained from Wellness showed that as early as June 2011
Plaintiff reported a two-year history of difficulty sleeping. (Dkt. 30 at 8–10.) Defendant explains
it is entitled to obtain these medical records to “distinguish between those injuries and damages
which are alleged to have resulted from the alleged wrongful, retaliatory termination [in this case],

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and Plaintiff’s prior medical condition or his PTSD.” (Id. at 10.) Essentially, because Plaintiff
has a history of PTSD and associated symptoms that he alleges are traceable to a separate accident
in June 2012, Defendant argues that it is entitled to discovery of Plaintiff’s medical records to
defend the sources of Plaintiff’s claim of emotional distress caused by his May 2015 termination
stemming from the December 2014 accident. (Id. at 11.)
The Court agrees with Plaintiff that Defendant’s requests for “all medical records” from
United and Wellness are overly broad. As Plaintiff argues, only Plaintiff’s psychiatric records and
related medical bills are relevant to Plaintiff’s allegations of experiencing emotional distress, loss
of enjoyment of life, and mental anguish, his request for compensation for these damages, and
Defendant’s defense of these claims.

See Cameron v. Supermedia, LLC, No. 4:15CV315-

MW/CAS, 2016 WL 1572952, at *3 (N.D. Fla. Apr. 19, 2016) (internal citations and quotations
omitted) (discussing discovery relevant to a claim for emotional distress and explaining that “[a]
defendant is entitled to production of medical records that have a logical connection to the
plaintiff’s claims of injury” instead of a full disclosure of all of a plaintiff’s medical records
“unrestricted as to time or circumstance simply because some level of emotional distress is
claimed”).
As to the time span for such records from United and Wellness, the subpoenas seek records
from United beginning in June 2014 and from Wellness beginning January 2015. (Dkts. 26-1, 262.) Plaintiff does not object to the time span beginning on June 1, 2014. (Dkt. 26 at 8.) As to the
end date, the subpoenas seek records through the present, but Plaintiff contends that the end date
should be December 31, 2015. (Id.) However, Plaintiff alleges that he suffers emotional distress,
loss of enjoyment of life, and mental anguish due to his termination and does not specify an end
date for this alleged suffering. (Dkt. 1 ¶¶ 57, 64, 70.) Further, his claim for compensatory damages

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could include damages for psychiatric care after December 31, 2015, because Plaintiff does not
specify a date range. (Id. at 9–10.) Therefore, Plaintiff’s psychiatric records through the present
are relevant to the claims and defenses in this case. See Fed. R. Civ. P. 26(b)(1).
Accordingly, the scope of the subpoenas to United and Wellness are modified as follows:
Plaintiff’s psychiatric records and psychiatric medical bills spanning from June 2014 to the
present. See id. 45(d)(3)(A), 26(b)(2)(C)(iii), 26(c)(1)(D).
B.

Cell Phone Records

Defendant contends that the video footage of the December 18, 2014 accident shows
Plaintiff using his cell phone shortly after the accident to send text messages and place phone calls.
(Dkt. 30 at 6.) Defendant contends that Plaintiff’s cell records after the accident are relevant to its
defense that it lawfully terminated Plaintiff for his misrepresentations regarding the accident
because “Plaintiff likely was communicating with someone regarding how the accident actually
took place, and that those communications would likely uncover admissions by the Plaintiff that
he was aware (at that time) that he was the cause of the accident.” (Id. at 6–7.)
In the First Motion, Plaintiff contends that Defendant’s request for Plaintiff’s cell phone
records for a four-day span around the December 18, 2014 accident is overly broad. (Dkt. 26 ¶¶
9–12.) Cell records outside the time of the accident are irrelevant, Plaintiff argues, especially
because Plaintiff was using his mother’s cell and, therefore, the four-day span will include her
irrelevant phone records. (Id. ¶¶ 14–16.) Nonetheless, Plaintiff has agreed to request his cell
phone records from T-Mobile “for calls made or received by Plaintiff during the moments before,
during and after the accident,” specifically the “entire two-hour period spanned [by the] video
footage” of the December 18, 2014 accident. (Id. ¶ 13.) Defendant, however, questions whether
Plaintiff has any ability to obtain these records from T-Mobile because Plaintiff stated that he “is

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unable to determine who his mother’s cell phone service provider was at the time of the accident
in 2014.” (Dkt. 26 ¶ 13, n.6); (Dkt. 30 at 7.)
The subpoena to T-Mobile seeks information relevant to Defendant’s defenses that Plaintiff
misrepresented facts related to the December 18, 2014 accident and that “Plaintiff exhibited
unacceptable behavior in the performance of his job duties.” (See Dkt. 10 at 7, 8.) Specifically,
as Defendant argues, the cell records may show individuals with information relevant to Plaintiff’s
account of the nature of the accident. However, the four-day time span of the subpoena is overly
broad. Instead, the time span of Plaintiff’s cell records that is relevant is the two-hour time span
on the date of the accident, December 18, 2014, of which Defendant has video footage showing
the accident and Plaintiff’s use of a cell phone immediately after the accident.
Accordingly, the scope of the subpoena to T-Mobile is modified as follows: Plaintiff’s cell
phone records for cell phone number [phone] on December 18, 2014, for the two-hour time
span matching Defendant’s video of the December 18, 2014 accident, which Defendant shall
specify. See Fed. R. Civ. P. 45(d)(3)(A), 26(b)(2)(C)(iii), 26(c)(1)(D).
II.

Second Motion
In the Second Motion, Plaintiff seeks an order either quashing or issuing a protective order

for a subpoena Defendant served on Plaintiff’s current employer Loomis Armored (“Loomis”).
(Dkt. 29.) Defendant seeks Plaintiff’s “employment records” and “all other evidence relating to”
Plaintiff’s employment with Loomis including, without limitation, the following: records of
Plaintiff’s earnings and attendance; the name of Loomis’s health and life insurance carrier and
copies of Plaintiff’s applications for and physical examinations related to insurance; and all
documentation regarding Plaintiff’s work-related injuries. (Dkt. 29-1.)

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Plaintiff argues that Defendant has not provided an explanation of the relevance of the
requested documents. (Dkt. 29 at 6.) Further, to the extent Defendant seeks Plaintiff’s current
wages as it relates to Defendant’s mitigation of damages defense, Plaintiff states that he has agreed
to produce his income documentation from his employment subsequent to his employment with
Defendant. (Id. at 7.) Thus, Plaintiff argues the Court must quash the subpoena because the
discovery “can be obtained from some other source that is more convenient, less burdensome, or
less expensive,” and because Defendant “has had ample opportunity to obtain the information by
discovery in the action.” See Fed. R. Civ. P. 26(b)(2)(C)(i), (ii).
In response, Defendant argues that records from Loomis are relevant for the following
reasons:
[T]he Loomis records are relevant to show Plaintiff’s current salary, which will offset any claims for back and front pay. Additionally, the City is entitled to the
requested information in order to determine whether Plaintiff is working full time
or is under-employed, whether Plaintiff is anticipating a raise, promotion or
bonuses in the near future, and other similar information relevant to the City’s
defenses.
***
Plaintiff has requested front pay, back pay and re-instatement. As such, Plaintiff
has opened the door relative to his personnel file, and any physical examination
documents which would show his fitness for duty or for hire. Likewise, Plaintiff’s
request for front pay and re-instatement opens the door to records related to work
place injuries/accidents that would preclude re-instatement.
(Dkt. 34 at 6, 8.) Finally, Defendant argues that records from Loomis “will show whether any of
the emotional distress alleged by Plaintiff . . . has manifested itself in his current employment.”
(Dkt. 34 ¶ 11.)
Defendant’s claim for Plaintiff’s entire personnel file with Loomis is overly broad.
Generally, personnel files and records “are confidential in nature” and “should be protected from
wide dissemination.” Maxwell v. Health Ctr. of Lake City, Inc., No. 3:05CV1056-J-32MCR, 2006

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WL 1627020, at *2 (M.D. Fla. June 6, 2006) (internal quotation and citation omitted). Also,
Defendant’s argument that Plaintiff’s personnel file with his current employer may show whether
Plaintiff’s alleged emotional distress as a result of his termination has “manifested itself” in his
employment with Loomis is speculative and seeks irrelevant information because there are no
allegations regarding Plaintiff’s inability to work due to emotional distress.
Further, while Defendant’s request for records relating to any work-related injuries and
documentation relating to applications by and physical examinations of Plaintiff in connection
with his medical and life insurance may bear on his eligibility to be rehired, the burden and expense
of this proposed discovery greatly outweighs any likely benefit. See Fed. R. Civ. P. 26(b)(1).
However, a former employee’s subsequent salary is “relevant to the issue of mitigation of
damages.” Maxwell, 2006 WL 1627020, at *3. Therefore, records of Plaintiff’s current earnings
from Loomis are relevant to Defendant’s mitigation of damages defense as well as to the measure
of Plaintiff’s claims for front and back pay. (Dkt. 1 at 9–10.) As Plaintiff has agreed to produce
documentation of his income from subsequent employment, including Loomis (Dkt. 29 at 7), a
protective order is warranted because Plaintiff’s current earnings from Loomis can be obtained
from a source that “is more convenient, less burdensome, or less expensive.” See Fed. R. Civ. P.
26(b)(2)(C)(i). Plaintiff shall produce such documentation within fourteen days of this Order.
Accordingly, it is
ORDERED:
1.

Plaintiff’s Amended Motion to Quash Non-Party Subpoenas or, Alternatively,

Amended Motion for Protective Order (Dkt. 26) is GRANTED in part and DENIED in part.
2.

Plaintiff’s Motion to Quash Non-Party Loomis Subpoena or, Alternatively, Motion

for Protective Order (Dkt. 29) is GRANTED. Plaintiff is directed to produce documentation of

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his income from employment subsequent to his employment with Defendant, including with
Loomis, within fourteen (14) days of this Order.
DONE and ORDERED in Tampa, Florida, on July 5, 2017.

Copies furnished to:
Counsel of Record

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