Hernandez-Hernandez et al v. Hendrix Produce, Inc. et al
Filing
62
ORDER granting in part and denying in part 43 Motion to Quash; denying 44 Motion to Quash; denying 44 Motion for Protective Order; denying 60 Motion to Quash. Signed by Magistrate Judge G. R. Smith on 3/10/14. (bcw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
SERGIO HERNANDEZ, et al.,
Plaintiffs,
Case No. CV613-053
V.
ITENDRIX PRODUCE, INC.;
RAY EARL HENDRIX,
individually; and YESENIA
MERINO, individually,
Defendants.
ORDER
Mexican migrant workers brought this farmworker rights case
against agricultural defendants for underpayment.' As noted in prior
' From the first two paragraphs of their complaint:
1. Plaintiffs and Opt-In Plaintiffs are migrant agricultural workers recruited
by Defendants in Mexico in 2009, 2010, 2011 and 2012 to work for Defendants
in and around Candler County, Georgia. Plaintiffs file this action on behalf of
themselves and other similarly-situated workers to secure and vindicate their
rights under the Fair Labor Standards Act ("FLSA") and under Georgia
contract law.
2. Defendants were sued for the same violations in 2010. Garcia-Mancha, et
al., v. Hendrix Produce, Inc., et al., 6:10-CV-36 (S.D.Ga.). However, Defendants
continue to underpay their workers in violation of the FLSA and their
employment contracts, including by falsifying daily hours worked and by
discovery orders, a core focus of their case is whether the Hendrix
defendants acted as joint employers with co-defendant Yesenia Merino.
That inquiry is fact-specific. See, e.g., Luna u. Del Monte Fresh Produce
(Southeast), Inc., 2008 WL 754452 at * 1 (N.D. Ga. Mar 19, 2008).
Various factors are considered. Gonzalez-Sanchez v. Int'l Paper Co., 346
F.3d 1017 1 1023 (11th Cir. 2003) (holding that defendant did not jointly
employ plaintiffs where there was no evidence that it issued paychecks,
withheld taxes, or provided insurance, housing, transportation, or tools
to plaintiffs).
It is against this background that the Hendrix defendants move to
quash plaintiffs' subpoena of their bank records. Doc. 43. They complain
that it seeks too much -- everything from loan applications to UCC
filings, documentation about loan collateral, front-and-back copies of
checks, etc.
Id. at 1-3. They also invoke formal privacy protection
remedies like the Right to Financial Privacy Act (RFPA), 12 U.S.C. §
forcing workers to endorse and cash checks and then return the money to their
supervisors.
Doe. 1 at 1.
2
3401-3422, doe., 43 at 4, which plaintiffs correctly show do not apply.'
Doe. 50 at 2-4. Insisting that the subpoena is "intrusive, overbroad" and
involves "privileged and protected matters," defendants also argue that it
seeks data "not relevant to any claim or defense,"' nor reasonably
calculated to lead to any discoverable information. Doe. 43 at 3-7.
The RFPA "was enacted in response to a pattern of government abuse in the area
of individual privacy and was intended to protect customers of financial institutions
from unwarranted intrusion into their records while at the same time permitting
legitimate law enforcement activity by requiring federal agencies to follow
established procedures when seeking a customer's financial records." 10 AM. JUR. 2D
BANKS AND FINANCIAL INSTITUTIONS § 90 (Feb. 2014) (emphasis added). It thus does
not apply to private litigants, whose targets are otherwise free to invoke protective
orders. See, e.g., H & L Associates of Kansas City, LLC v. Midwestern Indem. Co.
2013 WL 5913758 at * 5 (D. Kan. Nov. 1, 2013) ("[P]rivacy concerns are not an issue
because a protective order has been entered."); Welle v. Provident Life and Accident
Insurance Company, 2013 WL 5954731 at * 3 (N.D. Cal. Oct. 30, 2013) ("[Bjecause
the parties have stipulated to a confidentiality agreement and protective order in this
case . . . the court finds that Plaintiffs right to privacy will be adequately protected
notwithstanding disclosure of her financial information.").
2
"It is well-settled that the scope of discovery under a Rule 45 subpoena is the same
as that permitted under [Fed. R. Civ. P.] 26." Ross v. Livingston, 2012 WL 4862827
at * 1 (M.D. Ga. Oct. 12, 2012) (quotes and cite omitted); accord, Addona v. Parker
Hannifin Corp. 2014 WL 788946 at * 1 (D. Conn. Feb. 25, 2014); see also id. ("Any
subpoena that is issued to non-parties pursuant to Rule 45 is 'subject to Rule
26(b)(1)'s overriding relevance requirement.") (quotes and cite omitted); 9A WRIGHT
& MILLER: FED. PRAC. & PRoc. Cw. § 2459 (3d ed. 2013). Rule 26 provides that
"[parties may obtain discovery regarding any nonpri'rileged matter that is relevant
to any party's claim or defense. . . ." Fed. H. Civ. P. 26(b)(1). "Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence." Id.; Avalon Risk Management Ins.
Agency v. Taylor, 2014 WL 808156 at * 3 (S.D. Fla. Feb. 28, 2014). "The standard for
what constitutes relevant evidence is a low one." United States v. Tinoco, 304 F.3d
1088, 1120 (11th Cir. 2002). But it is driven by what is pled in the complaint.
3
Downing v. Billy Barnes Enterprises, 2013 WL 1857113 at * 3 (S.D. Ala. May 2,
2013). And it is a more relaxed standard than for at-trial evidence. Jackson v. Deen,
2013 WL 2027398 at * 1 (S.D. Ga. Apr. 3, 2013). Before the 2000 amendment to Rule
26 many sought to bar fishing expeditions: "[s]ome threshold showing of relevance
must be made before parties are required to open wide the doors of discovery and to
produce a variety of information which does not reasonably bear upon the issues in
the case." Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
Under the 2000 amendment, "information [now] must be relevant to be
discoverable, even though inadmissible, and . . . discovery of such material is
permitted if reasonably calculated to lead to the discovery of admissible evidence." 8
WRIGHT & MILLER: FED. PRAC. & PRoC. Civ. § 2007 (3d ed. Apr. 2013). Yet, "the
boundaries defining information that is relevant to the subject matter involved in the
action are necessarily vague and it is practically impossible to state a general rule by
which they can be drawn." 8 WRIGHT & MILLER: FED. PRAC. & PROC. Cw. § 2008 (3d
ed. Apr. 2013). Some courts use a two-step approach. "Step one is attorney-managed
discovery relevant to any claim or defense of a party; step two is a court-managed
discovery that can include information relevant to the subject matter of the action."
Moreno Rivera v. DHL Global Forwarding, 272 F.R.D. 50, 54 (D.P.R. 2011) (quotes
and cite omitted). So "when a party objects to discovery requests as being
impermissibly overbroad, 'the court would become involved to determine whether the
discovery is relevant to the claims or defenses and, if not, whether good cause exists
for authorizing it so long as it is relevant to the subject matter of the action.'
Fed.R.Civ.P. 26 advisory committee's note (2000), subdivision (b)(1)." Id. "Even
when information is not directly related to the claims or defenses identified in the
pleadings, the information still may be relevant to the broader subject matter at hand
and meet the rule's good cause standard." McGrath v. Everest Nat. Ins. Co., 625 F.
Supp. 2d 660, 670 (N.D. Ind. 2008).
Rule 26(c) allows the Court, for good cause, to issue a protective order "to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or
expense." Fed. R. Civ. P. 26(c)(1). "Among the relevant factors to be balanced are
considerations of the public interest, the need for confidentiality, and privacy
interests." Jee Family Holdings, LLC v. San Jorge Children's Healthcare, Inc., 2014
WL 323939 at * 2 (D. Puerto Rico Jan. 29, 2014) (quotes and cite omitted). "The
burden is upon the party seeking [judicial protection] to show good cause by
demonstrating harm or prejudice that will result from the discovery." Paws Up
Ranch, LLC v. Green, 2013 WL 6184940 at * 4 (D. Nev. Nov. 22, 2013).
4
The Hendrix defendants' bank -- Queensborough National Bank &
Trust Company -- also moves to quash the subpoena and for a protective
order. Doc. 45. It complains that it's being short timed -- just given 22
days to comply after a mailed discovery request.
Id. at 1. Compliance
will be expensive, it points out, and it should not have to bear the sole
expense.
Id. at 1-2. Given sufficient time and reimbursement, it
otherwise does not object. Id. at 2.
Plaintiffs oppose both motions, reminding that the bank had no
problem responding to a nearly identical subpoena -- in less than two
weeks at that -- three years ago. Doc. 50 at 1-2. Nor do the Hendrix
defendants articulate "a single example that might suggest the existence
of private and sensitive matters."
Id. at 2. In a reply brief strongly
suggesting that counsel should have resolved this under their duty to
confer,' the Hendrix defendants concede much of this matter. In
See Local Rule 26.4 ("[c]ounsel are reminded that Fed. R. Civ. P. (26(c) and 37(a)(2)
require a party seeking a protective order or moving to compel discovery to certify
that a good faith effort has been made to resolve the dispute before coming to
court."). That rule is enforced. Scruggs v. Int'l Paper Co., 2012 WL 1899405 at * 2
(S.D. Ga. May 24, 2012). And while motions to quash, rather than to compel, are
before the Court, requiring meaningful consultation can lead to informal resolution
and thus conservation of court resources. St. Johns Ins. Co. v. Nautilus Ins. Co.,
2008 WL 1897572 at * 1 (M.D. Fla. Apr. 28, 2008) (applying duty to confer obligation
5
addition to abandoning their statutory and other formal defenses like the
RFPA, they say this: "While some of the materials sought by plaintiffs
may be relevant to the inquiry of joint employment, plaintiffs should not
be allowed to use their requests as a license to view financial information
that is in no way relevant to their claims or that will not provide
information as to their claims." Doe. 57 at 1; see also id at 4-5 (conceding
subpoena document requests 3 & 4 outright and requests 1 & 5 with
respect to any Raymon Hendrix documents). Hence, the Hendrix
defendants concede some relevance. Their quash motion is denied to the
extent of their concessions.
to motions to quash and to compel in a subpoena-based discovery dispute).
Relatedly, defendant Merino also moves to quash plaintiffs' subpoena to her cell
phone carriers for text messages and call data. Doe. 60. While the time for plaintiffs
to respond to that motion has not yet elapsed, the Court is denying it without
prejudice to Merino's right to refile it after the parties have upheld their duty to
confer. Avera v. United Airlines, Inc., 2012 WL 794160 at * 2 (11th Cir. Mar. 13,
2012) (magistrate judge did not abuse his discretion in denying, without prejudice,
plaintiffs motion to compel discovery where plaintiff had not sought to resolve his
discovery dispute with defendant before filing the motion); J0 Ann Howard &
Associates, P.C. v. Cassity, 2012 WL 1247271 at * 8 (E.D. Mo. Apr. 13, 2012)
(rejecting compulsion request in part because "the failure of the parties to
communicate materially impeded their resolution of this matter.") (emphasis added).
N.
It is granted, however, with respect to any loan documents between
the Hendrix defendants and Queensborough Bank which do not involve
co-defendant Merino. Doc. 57 at 3. It also is granted regarding any Mary
and Kevin Hendrix financial information -- they are not defendants in
this case and there is no showing that they in some way enmeshed their
finances with the Hendrix defendants, much less in a manner evincing
the economic intertwinement that plaintiffs must show. But if plaintiffs
can make a relevancy showing for those documents, then they must first
confer with defense counsel before re-subpoenaing. Defendants are
instructed to assist in the turnover any such documents -- without need
for a subpoena -- if that showing in fact is made.
Accordingly, defendants' proposed "subpoena production" list on
pages 3-4 of their reply brief is adopted here, except that Request 2 is not
quashed outright, but only to the extent it reaches any Mary and Kevin
Hendrix loan application documents. Note, incidentally, the equal
treatment rule: Any documents successfully blocked here "will be
precluded from [use] as a defense to any of plaintiffs claims." Krouse v.
7
Ply Gem Pacific Windows Corp., 803 F. Supp. 2d 1220, 1231 (D. Or.
2011).
The bank's motion to quash (doe. 44) is granted only to this extent:
Within 11 days of the date this Order is served, the bank must contact
and in good faith confer with plaintiffs' counsel to resolve the production,
delivery, and expense concerns that is has raised.' See supra n. 4. Only
if that conference bears no fruit may plaintiffs return to this Court for
subpoena enforcement.
To summarize, the Court GRANTS in part and DENIES in part
the Hendrix defendants' motion to quash (doe. 43), as well as the
Queensborough National Bank & Trust Company's motion to quash.
Doe. 45. Defendant Merino's motion to quash (doe. 60) is DENIED
without prejudice to refile it after upholding her duty to confer.
One of its objections is document-production expense. Doe. 44 at 1. Under the
Federal Rules, "the presumption is that the responding party must bear the expense
of complying with discovery requests," Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 358 (1978), but the Federal Rules protect subpoenaed non-parties like the bank
from "undue burden or expense." Fed. R. Civ. P. 45(d)(1)), 45(d)(3)(A)(iv). Hence,
"[c]ost-shifting is particularly appropriate in the context of subpoenas, since Rule 45
directs courts to minimize the burden on non-parties." U.S. Bank N.A. V. PHL
Variable Ins. Co., 2012 WL 5395249 at * 4 (S.D.N.Y. Nov. 5, 2012). In that the 2013
amendment to Rule 45 applies here, plaintiffs are reminded that this Court must
shift to them any non-party's subpoena compliance costs if they are significant. Rule
45(d)(2)(B)(li); Legal Voice v. Stormans Inc.,738 F.3d 1178, 1184 (9th Cir. 2013).
8
Hernandez v. Hendrix Produce, Inc., - F.R.D. -, 2014 WL 92459 at *
2 (S.D. Ga. Jan. 9, 2014) (reminding the parties that this duty is
commanded by local rule); State Farm Mut. Auto. Ins. Co. u. Howard,
F.R.D. -, 2013 WL 6834364 at * 5 n. 11 (S.D. Ga. Dec. 27, 2013) (the
conference must also be meaningful; more than a "we met and talked"
certification is needed); supra n. 4.
SO ORDERED, this /27lay of March, 2014.
UNITED 9TA ES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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