SCOTT v. EGLIN FEDERAL CREDIT UNION

Filing 16

ORDER granting in part and denying in part 12 Plaintiff's Motion to Quash Subpoenas, or Alternatively, Motion for Protective Order. Signed by MAGISTRATE JUDGE GARY R JONES on 4/13/17. (grj)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
LEAH SCOTT,
Plaintiff,
v.

Case No. 3:16-cv-719-RV-GRJ

EGLIN FEDERAL CREDIT UNION,
Defendant.
___________________________/
ORDER
On April 11, 2017, the Court held a telephonic hearing to address
ECF No. 12, Plaintiff’s Motion to Quash Subpoenas, or alternatively,
Motion for Protective Order, and ECF No. 13, Defendant’s Response in
Opposition to Plaintiff’s Motion to Quash Subpoenas/Motion for Protective
Order with Supporting Memorandum of Law. Plaintiff was represented by
Adam Ellis, and Defendant was represented by Ariel Cook and Gary
Wheeler. For the reasons discussed on the record and incorporated into
this order, as well as summarized below, Plaintiff’s motion to quash is
denied, and Plaintiff’s motion for protective order is granted to the extent it
applies to the third request and added-on language in Defendant’s
subpoena to Old South Land Title, Plaintiff’s current employer.

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I. Background
This is a straight forward employment discrimination case in which
Plaintiff alleges that she was treated differently and terminated on the basis
of her gender. (ECF No. 1-1.) Following the initiation of this lawsuit,
Defendant provided notice of its intent to issue subpoenas on March 2,
2017, stating that the listed third-party subpoenas would be served on
March 6, 2017. (ECF No. 12 at 17–19.) When Defendant did not receive an
objection from Plaintiff, Defendant served the third-party subpoenas on
March 6, 2017. (Id. at 20–51.) On March 11, 2017, Plaintiff notified
Defendant that she objected to any contact with Plaintiff’s current
employer, including the subpoena, which already had been served. (ECF
No. 13 at 4.)
Following an email exchange between the parties regarding the
subpoena issued to Old South Land Title, Defendant’s counsel explained
that he would move forward with the subpoena over objection, prompting
Plaintiff to file the pending Motion to Quash, or alternatively, Motion for
Protective Order on March 14, 2017. (ECF No. 12.) Although the Motion to
Quash takes issue with each of the third-party subpoenas served by

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Defendant,1 each of the third parties, except for Plaintiff’s current employer,
have been served and already have produced the requested documents to
the Defendant. While the reach of the subpoenas, other than the subpoena
to Plaintiff’s current employer, may have been overly broad, because those
third parties already have produced the requested documents, the motion
to quash those subpoenas is denied as moot.
Accordingly, the sole remaining dispute involves the subpoena
served on Plaintiff’s current employer, Old South Land Title.
II. Discussion
In the third-party subpoena served on Old South Land Title
Defendant requests the following information: (1) a job description of all
positions Plaintiff held from May 2016 to present; (2) all application
materials; (3) all disciplinary actions, including documentation of verbal
coaching or counseling; (4) pay records, including W-2 forms; and (5)
documentation relating to Plaintiff’s termination or separation, if applicable.
In addition, the subpoena also provides that it “specifically includes any

1

In addition to serving Old South Land Title, Plaintiff’s current employer,
Defendant served subpoenas on: Compass Resorts (where Plaintiff held a seasonal
position after her termination); Coastal Skin Surgery & Dermatology; MidSouth Bank;
Fountain, Schultz & Associates; B3H Corporation; Cornerstone Financial Consultants
and Harrison Finance Company.
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records (including emails and text messages) of any communication with or
about Leah Scott, whether such communications were with Ms. Scott,
other departments or staff of your organization, Ms. Scott, or any third
parties regarding the areas listed above.”
Because Old South Land Title already has been served with the
subpoena, there is no concern with attempting to shield Plaintiff’s current
employer from knowledge of a lawsuit Plaintiff filed against a former
employer. Instead, Plaintiff argues that the subpoena is overly broad and
disproportionate to the issues in the case. Defendant counters that the
information relates to either the mitigation of damages or an after-acquired
evidence defense.
In accordance with the Federal Rules of Civil Procedure, discovery is
limited to nonprivileged matter that is “relevant to any party’s claim or
defense and proportional to the needs of the case.” Fed. R. Civ. P. Rule
26(b)(1). Courts have “broad authority to control the scope of discovery.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307
(11th Cir. 2011) (citing Fed. R. Civ. P. 26(b)). The scope of discovery in
employment discrimination cases, although broad, is not limitless. See
Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570
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(11th Cir. 1992).
A court may, for good cause, grant a motion for a protective order “to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense” by, inter alia, “forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery to certain matters.”
Fed. R. Civ. P. 26(c)(1). For example, a court may grant a motion for a
protective order if the subpoena requests irrelevant information. See, e.g.,
Auto-Owners Ins. Co. v. Southeast Floating Dock, Inc., 231 F.R.D. 426,
429–30 (M.D. Fla. 2005). Thus, while a defendant may subpoena
employment records in an employment discrimination suit such as this one,
see, e.g., Zeller v. South Cent. Emergency Med. Servs., Inc., No. 1:13-cv2584, 2014 WL 2094340 (M.D. Penn. May 20, 2014), such subpoenas are
not without limitation. See, e.g., Premer v. Corestaff Servs., L.P., 323
F.R.D. 692 (M.D. Fla. 2005).
There is little question that in an employment discrimination suit the
start date of employment after termination, a description of the type of
employment, and the compensation for the employment, are relevant to the
defense of mitigation of damages and possibly the defense of afteracquired evidence. Consequently, at the hearing Plaintiff did not seriously
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challenge the first, second, or fourth categories of documents requested in
Defendant’s subpoena. In these categories Plaintiff requested Old South
Land Title to provide a job description, application materials,2 and pay
records, including W-2 forms.
Additionally, Plaintiff does not raise a serious challenge to the fifth
category of documents requested in the subpoena, relating to Plaintiff’s
termination or separation, because it is not applicable in this case as
Plaintiff still works for Old South Land Title. Thus, the two disputed issues
include the third request—“[a]ll disciplinary actions, including
documentation of verbal coachings or counselings”—and the added-on
language at the bottom of the subpoena, which references emails and text
messages regarding Plaintiff.
Plaintiff argues that the third request for documentation regarding
disciplinary actions seeks to obtain information that is not relevant to the
issues in this case. Defendant says that the request is relevant to
mitigation of damages, and relying upon Zeller, argues that subpoena
language that includes employment applications, job descriptions,

2

Application materials include the information Plaintiff provided to her employer
or completed for the purpose of being hired for the position, such as a job application,
resume, and recommendations.
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termination records, and disciplinary documentation is discoverable as
relevant to the defense of mitigation of damages. See Zeller, 2014 WL
204340, at *3–*5.3 Other courts, however, have ruled differently on
subpoenas requesting similar information. See, e.g., Powell v. Regency
Hosp. of Nw. Ind., LLC, No. 2:10-cv-220-PRC, 2011 WL 1157528, at *1–*4
(N.D. Ind. Mar. 28, 2011) (quashing a subpoena requesting from a current
employer employment applications, performance reviews, disciplinary
documents, compensation documentation, and any resignation or
termination documents as “not reasonably calculated to lead to the
discovery of admissible evidence”).
Here, the Court is not persuaded that the requested information
regarding disciplinary actions is relevant in this case, because Plaintiff
alleges that she was terminated on the basis of gender discrimination and
Defendant asserts that Plaintiff was terminated “for legitimate business
reasons unrelated to her sex/gender.” (ECF No. 7 at 7.) Even assuming
the termination was based upon job performance, evidence of poor job
performance during post-termination employment would not be relevant to
3

Zeller differs from this case because Zeller dealt with allegations that the
plaintiff was retaliated against for using FMLA leave, and ultimately discharged as a
result. There the defendants argued, however, that the plaintiff was actually fired for
excessive absenteeism. Zeller, 2014 WL 204340, at *1.
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prove Plaintiff was not a competent employee. The Court, therefore,
concludes that Defendant has not demonstrated that the requested
information goes to mitigation of damages or is otherwise relevant, and
instead finds that the information, at best, would only be relevant to
showing bad character, which is not a permissible reason for acquiring this
information. Accordingly, the Court grants Plaintiff’s motion for a protective
order as to the third category requested in the subpoena. Old South Land
Title is therefore not required to provide this information in response to the
subpoena.
Plaintiff also argues that the added-on language at the bottom of the
subpoena is overly broad. Defendant, in response, asserts that the
language is not meant as an additional request for information but rather
as a clarification of the different forms the requested information may exist.
While it is unclear whether this added-on language is modifying the five
requests or is a separate request, the Court concludes that requiring Old
South Land Title to search, collect and produce emails and text messages
is not proportional to the needs of this case and therefore not within the
scope of discovery as now defined in Rule 26 of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 26(b)(1)( “Parties may obtain discovery ... that is
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relevant to any party’s claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.”) While emails and text messages
may be fair game for discovery in most cases, in this case it is difficult to
understand how these types of communications could have anything to do
with obtaining post-termination employment information concerning the
terms of employment, length of employment and compensation. Balancing
the marginal relevance of information in emails and text messages against
the time and expense that would be involved for a small business like Old
South Land Title in searching cellular telephones, servers and other
electronic storage facilities makes little sense and would cause Plaintiff’s
current employer to incur an expense that ultimately will have little or no
impact on the outcome of this case.
Therefore, Plaintiff’s request for a protective order is granted to the
extent that Old South Land Title shall not be required to search for and
produce emails and text messages, as described in the added-on
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language found at the bottom of the subpoena.4
Accordingly, it is ORDERED:
Plaintiff’s Motion to Quash Subpoenas, or alternatively, Motion for
Protective Order, ECF No. 12, is GRANTED to the limited extent that
Old South Land Title shall not be required to produce documents
responsive to the third category in the subpoena and shall not be
required to produce emails and text messages as described in the
add-on language at the end of the subpoena. In all other respects the
Motion to Quash Subpoenas, or alternatively, Motion for Protective
Order is DENIED.
IN CHAMBERS this 13th day of April 2017.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

4

This protective order, however, does not protect Old South Land Title from
compliance in the event Plaintiff submitted the employment application, resume or other
application materials via email. In that case the emails transmitting the application
materials should be produced.
Case No: 3:16-cv-719-RV-GRJ