MOORE v. PLASMACARE, INC.

Filing 33

ORDER granting Pltf's 20 Motion for Protective Order (SEE ORDER). Signed by Magistrate Judge Mark J. Dinsmore on 2/23/2012. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PAUL MOORE,
Plaintiff,
vs.
PLASMACARE, INC.,
Defendant.

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) NO. 1:11-cv-01090-SEB-MJD
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ORDER ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
This matter is before the Court on Plaintiff Paul Moore’s Motion for Protective Order
pursuant to Federal Rule of Civil Procedure 26(b)(2)(C). [Dkt. 20]. The Court, being duly
advised, GRANTS Moore’s Motion for Protective Order, as follows:

I. Background
This case involves Moore’s age discrimination claim under the Age Discrimination in
Employment Act (“ADEA”). On January 25, 2010, PlasmaCare, Inc. (“PlasmaCare”) terminated
Moore allegedly due to Moore’s poor performance. On one occasion, following the shift on
which Moore was the supervisor, 180 units of plasma were left outside the freezer overnight,
which violated Food and Drug Administration regulations. Moore claims the reason provided
for his termination was a pretext and that PlasmaCare treated him differently because of his age
and retaliated against him because of his complaints about ageist remarks made by his peers.
PlasmaCare seeks various documents from Moore's current employer, including Moore’s
job application to ascertain the reason Moore gave for leaving PlasmaCare. During the course of
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discovery, PlasmaCare has learned that Moore provided inaccurate information on other
employment applications since leaving PlasmaCare’s employment. Moore seeks a protective
order under 26(c) to bar PlasmaCare from gathering discovery from his current employer.

II. Legal Standard
Federal Rule of Civil Procedure 26 allows for broad discovery “regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
If the discovery appears relevant, the party resisting the discovery bears the burden to show the
requested discovery adds such little value that the potential harm outweighs the typical
presumption allowing broad disclosure. Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619
(S.D. Ind.2002). Rule 45 allows for discovery on third parties and is as broad as Rule 26.
Powell v. Regency Hosp. of Nw. Indiana, LLC, No. 2:10-CV-220-PRC, 2011 WL 1157528, at *3
(N.D. Ind. Mar. 28, 2011). However, under Rule 26(c), a party or any person from whom
discovery is sought may move for a protective order and the court may “for good cause shown
issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Fed. R. Civ. P. 26(c).

III. Discussion
PlasmaCare claims the discovery it seeks is relevant to Moore’s credibility. According to
PlasmaCare, Moore is misrepresenting the reason why he left its employ. Credibility is an
appropriate subject for discovery. Pennington v. G.H. Herrmann Funeral Home, Inc., No. 1:09CV-00390-RLY-JM, 2010 WL 148242, at *2 (citing Oakes v. Halvorsen Marine, Ltd., 179
F.R.D. 281, 283 (C.D. Cal. 1998)). While credibility is an appropriate subject for discovery,
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under Rule 26(b)(2)(c), the Court must limit discovery when it is unreasonably cumulative or
duplicative, or can be obtained from some other source or when the party has ample opportunity
to gain access to the information, and the burden outweighs the benefit.
In the context of third party discovery, courts should be especially careful in protecting
the parties from excessive or oppressive discovery. Pennington, 2010 WL 148242, at *1 (citing
Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)); see also Haworth, Inc. v.
Herman Miller, Inc., 998 F.2d 975, 978 (Fed. Cir. 1993) (explaining that under Rule 26(b), a
court may require a party to first seek discovery from the party opponent before burdening a
nonparty). Additionally, when the third party is a litigant’s current employer, courts should be
mindful of the risk to the litigant of adverse employment consequences. Pennington, 2010 WL
148242, at *1 (citing Moffatt v. Seymour Tubing, Inc., IP01-C-1953-B/S (S.D. Ind. Jul 12,
2002)).
Requesting information from Moore’s current employer is premature and potentially
duplicative. PlasmaCare should first access the information they seek directly from Moore
through taking his deposition.1 Taking Moore’s deposition will allow PlasmaCare to ask Moore
directly, under oath, for the information it seeks. At that point, if Moore’s responses indicate that
he made similar misrepresentations on his current employer’s application, PlasmaCare will have
sworn testimony it can use during trial and the application would be duplicative of Moore’s
deposition testimony. However, if Moore’s responses indicate that he made no
misrepresentations on his current employer’s application, only then might it be appropriate for
PlasmaCare to subpoena Moore’s current employer.

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Apparently, Moore’s current employer has refused to provide Moore with a copy of his application.
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Furthermore, given that PlasmaCare has a collection of alleged misrepresentations, the
Court finds that one more may be unnecessarily cumulative. See Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681 (7th Cir. 2002) (explaining that Rule 26(b)(2) empowers district courts
to limit the scope of discovery if it is unreasonably cumulative). PlasmaCare has other
applications that show Moore has provided allegedly inaccurate information on other
applications for employment since leaving PlasmaCare. One additional application will offer
little to the issue of Moore’s credibility. On the other hand, the probability for prejudice to
Moore is high because of the potential for adverse employment consequences. The potential
prejudice to Moore outweighs the possible benefit PlasmaCare may gain from its request.
In sum, PlasmaCare can get the information it seeks directly from Moore by deposing
him. Additionally, the cumulative nature of the application at issue provides minimal additional
benefit to PlasmaCare, but the potential risk to Moore is great. For these reasons, the Court finds
that Moore has established good cause justifying issuance of a Protective Order. However, the
Court does not foreclose the possibility of allowing PlasmaCare to raise this issue again after
PlasmaCare has deposed Moore.

IV. Conclusion
For the reasons discussed above, the court GRANTS Plaintiff’s Motion for Protection
Order. [Dkt. 20].
Dated: 02/23/2012
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

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Distribution List:

Blake J. Burgan
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Andrew Dutkanych III
BIESECKER DUTKANYCH & MACER LLC
[e-mail]
Christopher S. Wolcott
BIESECKER DUTKANYCH & MACER, LLC
[e-mail]

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