GRANT v. GRAYCOR INDUSTRIAL CONSTRUCTORS, INC. et al
Filing
45
OPINION re 41 Motion and Brief regarding subpoena dispute - The motion is construed as a motion for protective order and is granted in that Graycor may not issue subpoenas to all 26 employers listed by Grant in hisAmended Answers to Interrogatories. See opinion for further direction. Signed by Magistrate Judge William G. Hussmann, Jr., on 11/26/2012. (NRN) Modified on 11/26/2012 (NRN).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
ARTY GRANT,
Plaintiff,
v.
GRAYCOR INDUSTRIAL
CONSTRUCTORS, INC.,
Defendant.
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3:12-cv-44-RLY-WGH
MAGISTRATE JUDGE’S OPINION
ON DISCOVERY DISPUTE
This is an employment discrimination action brought by Plaintiff, Arty
Grant (“Grant”), against Defendant Graycor Industrial Constructors, Inc.
(“Graycor”). Grant contends that he was discriminated against because of his
race and retaliated against for engaging in an activity protected by Title VII.
The matter before the Magistrate Judge raises a frequently litigated discovery
dispute. Specifically, Graycor seeks to send non-party subpoenas to Grant’s
former employers. Graycor seeks from each previous employer “a true,
complete and authentic copy of all employment records in its possession for
[Plaintiff].” The records sought include, but are not limited to, “all records
relating to his rate of pay, amount of income received, absenteeism, hours
worked, benefits available and received, evaluations, physical examinations or
medical records and letters of resignation or termination of employment.”
Grant objects to these subpoenas on the grounds that they are overly broad,
irrelevant to his claims, and not reasonably calculated to lead to the discovery
of admissible evidence. Further, Grant alleges that the production requests are
an attempt to invade his privacy and harass and annoy him.
Grant is a member of a local union pursuant to the union’s Working
Agreement, which is attached as Exhibit A to Grant’s brief. Under that
Agreement, a prospective employer retains the right to reject any applicant
furnished by the union; it also has the right to determine the competency and
qualifications of the union’s members referred to a given job site. Additionally,
the employer may call the union for an individual by name, provided he is on
an unemployed list maintained by the union and provided he is not employed
by another employer. If so requested, the union is required to refer that
individual. Under these circumstances, the information a prior employer has
about Grant can certainly affect his job prospects for being called to another
job by that employer in the future.
While there is a significant question about whether evidence of Grant’s
prior employment is admissible at this trial, virtually all cases that have
addressed the issue find the information concerning a plaintiff’s prior work
experience to be discoverable. This is particularly the case when a plaintiff –
like Grant, in this instance – alleges that he was subjected to a hostile work
environment and sustained emotional distress from his employment. The
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Magistrate Judge, therefore, concludes that the information sought by the
subpoenas is relevant and that the requests, as phrased, are not overly broad.
The more difficult issue is whether seeking this information from all prior
employers should be prohibited because it protects Grant from “annoyance,
embarrassment, oppression.” FED. R. CIV. P. 26(c)(1). Some cases have
recognized that plaintiffs – like Grant – have a legitimate interest in preserving
their relationships with previous employers. See Woods v. Fresenius Medical
Care Group of North America, 1:06-cv-1804-RLY-WTL (S.D. Ind. January 16,
2008). In this particular case, because Grant is a union member and is
subject to returning to work for his past employers, this interest is entitled to
at least some degree of protection.
The directing of a subpoena to all 26 prior employers listed by Grant1
would serve as undue annoyance, embarrassment, or oppression because the
suggestion that a potential employee is engaged in litigation with another
employer can reasonably be seen as “poisoning the well” with potential
employers. Graycor does suggest, however, that if Grant has previously sued
an employer, has filed a formal or informal complaint against a previous
employer, has received discipline from a prior employer, or has been suspended
or terminated from employment, that information is both relevant to this
lawsuit and would be produced by employers who were already aware of
The Magistrate Judge does not see 26 employers listed in the Amended Answers to
Interrogatories. However, the parties agree that those numbers exist.
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Grant’s claims against them. Grant has less reason to be annoyed,
embarrassed, or oppressed when there is a disciplinary history between he and
his former employer.
Therefore, Grant’s motion, construed as a motion protective order, must
be GRANTED in part and DENIED in part. The motion is granted in that
Graycor may not issue subpoenas to all 26 employers listed by Grant in his
Amended Answers to Interrogatories. However, within fifteen (15) days of the
date of this Order, Grant must identify from his list of prior employers those
that:
(1)
he has sued;
(2)
he has filed a formal or informal complaint against alleging
discriminatory or retaliatory conduct;
(3)
he has received discipline from, and the reasons therefor;
and
(4)
have suspended or terminated him from employment.
Graycor may issue subpoenas only to those prior employers identified as
falling into those categories.
SO ORDERED the 26th day of November, 2012
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
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Electronic copies to:
Lauren Elizabeth Berger
BIESECKER DUTKANYCH & MACER LLC
lberger@bdlegal.com
Kyle Frederick Biesecker
BIESECKER DUTKANYCH & MACER, LLC
kfb@bdlegal.com
Amanda C. Couture
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
amanda.couture@ogletreedeakins.com
Robert F. Seidler
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
rob.seidler@ogletreedeakins.com
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