State of Hawaii, Dept. of Labor and Industrial Relations, Employment Security Appeals Referees' Office vs. Lee

Filing 12

EO: COURT ORDER DENYING STATE OF HAWAI`I, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, EMPLOYMENT SECURITY APPEALS REFEREES OFFICE'S MOTION TO QUASH SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS IN A CIVIL ACTION.... ESARO will produce the documents and objects by October 15, 2021, pursuant to a protective order. Specifically, Lee shall not permit any copying or viewing or producing of the materials to any person other than his attorney of record or anyone employed by his attorney acting on his behalf in Lee v. L3Harris Technologies, Inc., CV 20-00489 LEK-KJM, (such as a paralegal, investigator or support staff), nor shall he file the material produced, or any part thereof, in any public record or produce such material in open court without first obtaining leave of court (specifically, a court order permitting such use). If Lee files a motion seeking leave to file the material publicly or use it in open court, Lee must se rve a copy of the motion on ESARO, and ESARO will be given an opportunity to respond to the motion.Production of the documents and objects shall be made to Lee through his counsel. ESARO's counsel and Lee's counsel are DIRECTED to meet and confer regarding the format of the production. Lee is ORDERED to provide L3, through its counsel, with a copy of all documents and objects that ESARO produces to Lee pursuant to this entering order. The protective order described in this entering order also applies to L3's use of the documents and objects. Lee shall provide the copies to L3 within 7 days after ESAROs production to Lee.(JUDGE LESLIE E. KOBAYASHI) (afe)

MINUTE ORDER

CASE NUMBER:

MISCELLANEOUS NO. 21-00330 LEK-KJM

CASE NAME:

State of Hawaii, Dept of Labor and Industrial Relations,
Employment Security Appeals Referee’s Office vs. Preston
Lee

JUDGE:

Leslie E. Kobayashi

DATE:

09/29/2021

COURT ACTION: EO: COURT ORDER DENYING STATE OF HAWAI`I,
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, EMPLOYMENT
SECURITY APPEALS REFEREES’ OFFICE’S MOTION TO QUASH SUBPOENA
TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS IN A CIVIL ACTION
On August 30, 2021, Petitioner State of Hawai`i, Department of Labor and
Industrial Relations, Employment Security Appeals Referees’ Office (“ESARO”) filed a
Motion to Quash Subpoena to Produce Documents, Information, or Objects in a Civil
Action (“Motion to Quash”). [Dkt. no. 1.] The Court finds the Motion to Quash suitable
for disposition without a hearing, pursuant to Local Rule 7.1(c).
Respondent Preston Lee (“Lee”) is the plaintiff, and Intervenor L3Harris
Technologies, Inc. (“L3”) is the defendant, in Lee v. L3Harris Technologies, Inc., CV 2000489 LEK-KJM (“CV 20-489”). The facts related to the Motion to Quash are
straightforward: Lee served a subpoena on ESARO, in connection with the discovery in
CV 20-489, seeking the production of “recorded testimony in or the transcript of an
unemployment insurance appeal hearing.” [Mem. in Supp. of Motion to Quash at 1.] Lee
argues the materials sought are “critical to Mr. Lee’s claims in CV No. 20-489 because it
goes to the very central issue in the case: was Mr. Lee terminated because of his disability
or did L3 have a substantial and justified basis to legally terminate Mr. Lee.” [Lee’s
mem. in opp. to Motion to Quash, filed 9/15/21 (dkt. no. 7), at 3-4.]
Upon motion of the party opposing a subpoena, the court “must quash or modify a
subpoena that . . . subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).
The party seeking to quash a subpoena has the “burden of persuasion.” Travelers Indem.
Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005). A court must also
“quash or modify a subpoena that . . . requires disclosure of privileged or other protected
matter, if no exception or waiver applies[.]” Rule 45(d)(3)(A)(iii).
Federal Rule of Evidence 501 provides the framework for defining what is

privileged:
The common law - as interpreted by United States courts in the light
of reason and experience - governs a claim of privilege unless any of
the following provides otherwise:
- the United States Constitution;
- a federal statute; or
- rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.
Fed. R. Evid. 501.
The subpoena was issued in a civil case, but the case involves both federal law
claims and state law claims. See CV 20-489, First Amended Complaint, filed 2/11/21
(dkt. no. 20), at ¶¶ 98-118 (describing Counts I and II, brought pursuant to federal law,
and Counts III, IV, and V, brought pursuant to state law). As to Lee’s claims for which
federal law supplies the rule of decision, ESARO’s claim of privilege must be examined
under the United States Constitution, federal statute, or rules prescribed by the United
States Supreme Court. None of these sources is cited as defining the documents and
information being sought as privileged. ESARO only cites federal regulations, a manual
promulgated by the United States Department of Labor, state statutes, and state
administrative materials. Consequently, the Court concludes that ESARO has not shown
that a privilege or other protection precludes discovery of the information subpoenaed.
However, ESARO’s claim that the information sought contains material protected
from disclosure by state law is well supported. A protective order pertaining to the
production of the documents and recordings sought will accomplish continued protection
of the information unless and until a court rules on the admissibility of the documents and
recordings.
For the foregoing reasons, the Motion to Quash is DENIED. ESARO will produce
the documents and objects by October 15, 2021, pursuant to a protective order.
Specifically, Lee shall not permit any copying or viewing or producing of the materials to
any person other than his attorney of record or anyone employed by his attorney acting on
his behalf in Lee v. L3Harris Technologies, Inc., CV 20-00489 LEK-KJM, (such as a
paralegal, investigator or support staff), nor shall he file the material produced, or any
part thereof, in any public record or produce such material in open court without first
obtaining leave of court (specifically, a court order permitting such use). If Lee files a
motion seeking leave to file the material publicly or use it in open court, Lee must serve a
copy of the motion on ESARO, and ESARO will be given an opportunity to respond to
the motion.
Production of the documents and objects shall be made to Lee through his counsel.

ESARO’s counsel and Lee’s counsel are DIRECTED to meet and confer regarding the
format of the production. Lee is ORDERED to provide L3, through its counsel, with a
copy of all documents and objects that ESARO produces to Lee pursuant to this entering
order. The protective order described in this entering order also applies to L3’s use of the
documents and objects. Lee shall provide the copies to L3 within 7 days after ESARO’s
production to Lee.
IT IS SO ORDERED.
Submitted by: Agalelei Elkington, Courtroom Manager