Martin v. Group 1 Realty, Inc. et al
MEMORANDUM AND ORDER granting in part and denying in part 39 Plaintiff's Motion for Protective Order. Plaintiff's request for a protective order precluding Defendants from serving the proposed four subpoenas on his former employers is den ied. Plaintiff's relevancy objections are sustained in part however. Plaintiff has shown that the subpoenas as proposed are overly broad by seeking specific categories of documents and information that are not relevant to any claim or defense in this case. Defendants may serve the four proposed subpoenas on Plaintiff's former employers, but they shall modify the subpoenas to only request the categories of documents and information allowed by this Memorandum and Order. Signed by Magistrate Judge David J. Waxse on 7/1/2013. (byk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH J. MARTIN,
Case No. 12-2214-EFM-DJW
GROUP 1 REALTY, INC.,
MEMORANDUM AND ORDER
In this employment discrimination and wrongful termination action, Plaintiff asserts claims
for gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964,1 disability
discrimination and retaliation under the Americans with Disabilities Act (“ADA”),2 and common
law whistle-blower retaliation and wrongful discharge for making reports of warranty fraud against
Defendants. This matter is currently before the Court on Plaintiff’s Motion for Protective Order
(ECF No. 39). Plaintiff requests that the Court issue a protective order under Fed. R. Civ. P. 26(c)
barring Defendants from serving subpoenas upon his current and former employers, or, in the
alternative, quashing the subpoenas under Fed. R. Civ. P. 45(c)(3). As set out in more detail below,
the Court grants the motion in part and denies it in part.
Relevant Factual Background
On February 6, 2013, Defendants served Plaintiff with notices of their intent to issue
subpoenas on Plaintiff’s current employer, as well as four of Plaintiff’s former employers. The
42 U.S.C. §2000e-2(a).
42 U.S.C. §§12101 et seq.
subpoenas commanded Plaintiff’s current and former employers to produce or permit inspection of
the following documents concerning Plaintiff:
1) application for employment; 2) interview notes or papers; 3) background
investigation reports; 4) hiring papers; 5) employment agreement(s); 6)
job/performance evaluations; 7) signed acknowledgement forms relating to company
policies and procedures; 8) training documents; 9) discipline and discharge
information; 10) attendance information; 11) job duties/description; 12) payroll,
wage, bonus, compensation information; 13) benefits; 14) any documents relating
to any work-related Injury sustained by [Plaintiff] while employed with your
Company; 15) any documents relating to allegations or complaints by or against
[Plaintiff] of any nature, including any investigation of any such allegations or
complaints and any notes, statements, reports, or correspondence of any sort; and 16)
All charges or complaints made or filed by or against [Plaintiff] with any agency or
court, including all investigation files and responses or position statements, and/or
pleadings related to those charges or complaints.3
That same day, Plaintiff responded with his objections to the proposed subpoenas and requested a
time to meet and confer.
On February 9, 2013, the parties arranged a meet and confer about their positions with
respect to the proposed subpoenas, but were unable to resolve their dispute.4 After Plaintiff filed
this motion, the parties were able to resolve their dispute with regard to the proposed subpoena to
be served upon Plaintiff’s current employer5 and all that remains at issue in the motion are the four
proposed subpoenas to be served upon Plaintiff’s former employers.
Standard for Ruling on a Motion for Protective Order Barring Subpoenas
Federal Rule of Civil Procedure 26(c) governs protective orders and provides that “[t]he
Ex. B to Pl.’s Mot. (ECF No. 39-2).
See Pl.’s Rule 26(c) Certification (ECF No. 39-1).
On May 29, 2013, the Court entered the parties’ Agreed Order (ECF No. 72) with respect
to pay and benefit information, employment applications, and performance evaluations sought from
Plaintiff’s current employer.
court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” including an order “forbidding inquiry
into certain matters, or limiting the scope of disclosure or discovery to certain matters.”6 The
movant must show good cause for the requested protective order.7 To establish “good cause” within
the meaning of Rule 26(c), the party must clearly define the potential injury to be caused by
dissemination of the information.8 The court has broad discretion to decide when a protective order
is warranted, and if warranted, the scope of protection required given the situation.9 Through Rule
26(c), the courts have “substantial latitude to fashion” an appropriate protective order after fairly
weighing “the competing needs and interests of the parties affected by discovery.”10
A party seeking a protective order to bar or prohibit service of subpoenas on nonparties
implicates Rule 45, the Rule governing subpoenas. Although Rule 45 does not specifically provide
for a relevancy or overbreadth objection, it is well settled “that the scope of discovery under a
subpoena is the same as the scope of discovery under Rule 26(b) and 34.”11 Therefore, “the court
Fed. R. Civ. P. 26(c)(1)(D).
Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010).
Kear v. Kohl’s Dep’t Stores, Inc., No. 12-1235-JAR-KGG, 2013 WL 628331, at *2 (D. Kan.
Feb. 20, 2013), review denied, 2013 WL 1819777 (D. Kan. Apr. 30, 2013).
Layne, 271 F.R.D. at 244.
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
See Fed. R. Civ. P. 45(d)(1) advisory committee notes to the 1970 Amendment (the 1970
amendments “make it clear that the scope of discovery through a subpoena is the same as that
applicable to Rule 34 and the other discovery rules.”).
must examine whether a request contained in a subpoena is overly broad or seeks irrelevant
information under the same standards as the rules governing discovery requests served on parties.”12
Plaintiff’s Objections to the Proposed Subpoenas to be Served on His Former
Plaintiff objects to the subpoenas on the grounds they seek wholly irrelevant information,
are overly broad, and violate his constitutional right to privacy because they seek everything
regarding his employment. Plaintiff argues that Defendants have no reasonable basis to believe that
he failed to mitigate his damages or that he filed a claim of discrimination against anyone other than
Defendants. He further argues that his prior employment has no bearing on whether he was
subjected to discrimination and/or wrongfully terminated for complaining of warranty fraud in this
case. Plaintiff maintains that the only possible relevant and discoverable information would be postemployment compensation records, which he has already provided to Defendants. Finally, Plaintiff
argues that Defendants did not plead the after-acquired evidence defense, nor is it applicable in this
Defendants contend they are entitled to Plaintiff’s prior employment records. They argue
that these records are relevant to Plaintiff’s claim for damages for emotional distress, pain and
suffering, as well as past and future medical expenses. According to Defendants, information
contained in Plaintiff’s employment records regarding the alleged mistreatment or harassment by
former employers would have a direct bearing on Plaintiff’s damages in this case. These records may
also contain information relevant to the credibility of Plaintiff’s allegations of discrimination and
retaliation. Defendants also argue that information in records pertaining to Plaintiff’s health,
Linnebur v. United Tel. Ass’n, Inc., No. 10-1379-RDR, 2011 WL 3490022, at *7 (D. Kan.
Aug. 10, 2011).
medical conditions, absences from work, and/or ability to perform the functions of his position at
his previous employers or subsequent or current employers may also be relevant to his disability
discrimination claim. Defendants further assert that Plaintiff’s alleged privacy concerns are
adequately addressed by the parties’ existing stipulated protective order, which limits the production
and dissemination of confidential information.
The general scope and limits of discovery are set out in Fed. R. Civ. P. 26(b)(1). Under that
Rule, the parties may obtain discovery “regarding any non-privileged matter that is relevant to any
party’s claim or defense.” Relevancy is broadly construed at the discovery stage of the litigation,
and “[a] request for discovery should be allowed unless it is clear that the information sought can
have no possible bearing on the claim or defense of a party.”13 When the discovery sought appears
facially relevant, the party objecting to the discovery has the burden to show that the information
does not come within the broad scope of relevance as defined by Fed. R. Civ. P. 26(b) or that
potential harm outweighs the presumption in favor of broad disclosure.14 Conversely, when a
discovery request seeks information that is not facially relevant, the party seeking the discovery
bears the burden of demonstrating relevance.15
Two recent workplace discrimination cases from this District have found subpoenas seeking
a plaintiff’s employment records from a former employer to be both relevant and appropriate.16 In
Sheldon v. Vermonty, 204 F.R.D. 679, 689–90 (D. Kan. 2001).
Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 670 (D. Kan. 2003).
Harroald v. Triumph Structure-Wichita, Inc., No. 10-1281-JAR-KGG, 2011 WL 2118648,
Harroald v. Triumph Structure-Wichita, Inc., the defendant employer served subpoenas on the
plaintiff’s former employers seeking:
[a]ll employment records, including but not limited to, personnel files, payroll
records, benefit records, applications, evaluations, records and/or notes regarding job
interviews, records and/or notes regarding job offers, disciplinary actions,
reprimands, investigation files, human resources files, grievance records, supervisor
files, labor relations files, correspondence and memoranda, of any type or nature
whatsoever within your care, custody or in any manner regardless of origin or
creation of said document, that relate to or concern [the plaintiff.].17
The plaintiff objected to the subpoenas, arguing that documents sought were not relevant. She also
argued that the discovery was impermissible because it would constitute improper character
evidence pursuant to Fed. R. Evid. 404 and that the after-acquired defense was inapplicable because
she was not making a claim for lost wages.18 The defendants argued that the discovery sought was
relevant to the plaintiff’s credibility because they had information demonstrating that the plaintiff
was untruthful on her employment application. They also argued that they should be allowed to seek
discovery to develop evidence and defenses concerning the plaintiff’s credibility given the
possibility and likelihood of other misrepresentations. The defendants also argued that because of
the nature of plaintiff’s harassment and battery claims, information contained her personnel files
with prior employers pertaining to her emotional state, physical abilities and limitations, sickness,
injury or other health matters were relevant to determining the existence, nature, and extent of the
damages plaintiff alleged she incurred. The court found that given the nature of plaintiff’s claims
at *3 (D. Kan. May 27, 2011); Gilkey v. ADT Sec. Servs., Inc., No. 11-1369-JAR-KGG, 2012 WL
3143872, at *6 (D. Kan. Aug. 2, 2012).
Harroald, 2011 WL 2118648, at *1.
Id. at *2.
and the defenses raised by the defendants, including the plaintiff’s requests for her medical expenses
and pain and suffering, the documents requested in the subpoenas met “the broad and liberal
construction afforded by the federal discovery rules.”19 The court found the requests to be “more or
less standard in the context of employment discrimination claims brought in this District.”20
Similarly, in Gilkey v. ADT Security Services, Inc., the plaintiff filed a motion to quash a
subpoena served upon his former employer, arguing that his employment records were not relevant.
The defendant argued that the requested documents were relevant because they could contain
information relevant to the plaintiff’s claim for “intangible injuries” (which may include pain and
suffering) and the after-acquired evidence defense.21 The defendant also argued that the records were
relevant to the credibility of the plaintiff because he had filed an employment discrimination claim
against another employer a month before he allegedly suffered discriminatory treatment at the hands
of the defendant.22 The court found that given the nature of the plaintiff’s claims, which included
“intangible injuries,” and the defenses raised by the defendant, the documents requested were
relevant and discoverable.23
A review of the subpoenas Defendants intend to serve on Plaintiff’s former employers
reveals that they seek sixteen different types of Plaintiff’s employment records, including
employment applications, employer interview notes or papers, background investigation reports,
Id. at *3.
2012 WL 3143872, at *6.
hiring papers, employment agreements, signed acknowledgment forms, training documents,
attendance information, job duties/description, performance evaluations, discipline and discharge
information, payroll and benefits records, documents related to any work-related injury, allegations
or complaints by or against Plaintiff, and charges and complaints made or filed by Plaintiff.
In this case, the Court finds that some of the subpoenaed documents appear facially relevant
to Plaintiff’s claim for emotional damages, credibility, and allegations relating to his disability or
perceived disability. In the Pretrial Order (ECF No. 73), Plaintiff indicates that he seeks damages
consisting of lost wages, emotional distress, punitive damages, and his attorney’s fees. Reviewing
the categories of documents sought, the Court finds that employment records from Plaintiff’s former
employers such as performance evaluations, attendance information, discipline and discharge
information, documents related to any work-related injury, allegations or complaints by or against
Plaintiff, and charges and complaints made or filed by Plaintiff would be relevant to Plaintiff’s claim
for emotional damages.
Defendants have also convinced the Court that information contained in Plaintiff’s
employment records pertaining to his health, medical conditions, and ability to perform the functions
of his position at previous employers is relevant to his ADA discrimination claim and factual
allegations in support of that claim. The Court finds that it would reasonable that this information
may be found in the subpoenaed categories of attendance records and documents related to any
With respect to Defendants’ argument that the documents sought are relevant to Plaintiff’s
credibility, Plaintiff argues that there is no reasonable basis to believe that he failed to mitigate his
damages or that he filed other claims of discrimination or made other complaints of warranty fraud
against former employers. Defendants dispute this and state in their supplemental opposition (ECF
No. 70) that they have reason to believe that Plaintiff made complaints against his former employer,
another BMW dealer, in South Florida. They base this on medical records recently obtained in
discovery from Plaintiff’s doctor in which Plaintiff claimed he was being mistreated and harassed
by his previous employer and that he feared he was going to be fired. Defendants claim that the fact
that Plaintiff made these complaints against his immediately previous employer indicates that
records from all of Plaintiff’s former employers are relevant and should be discoverable as such
allegations plainly may reflect on Plaintiff’s credibility or his propensity to make claims such as
those made in this case.
The Court finds that Defendants have provided sufficient support for their argument that
some of the employment records sought may be relevant to Plaintiff’s credibility, specifically his
credibility regarding the allegations and claims of discrimination and retaliation. Defendants have
sufficiently shown Plaintiff’s performance evaluations, discipline and discharge information,
allegations or complaints by or against Plaintiff, and charges and complaints made or filed by
Plaintiff to be relevant to Plaintiff’s credibility.
While some of the subpoenaed document categories appear to seek relevant discovery, the
Court questions the relevance of the remaining categories. Defendants have not shown the relevance
of the following categories of subpoenaed information: Plaintiff’s employment applications, his
former employer’s interview notes or papers, background investigation reports, hiring papers,
employment agreements, signed acknowledgment forms, training documents, job duties/description,
and payroll/benefits information. Although Defendants claim the subpoenas seek documents
relevant to Plaintiff’s damage claims, the Court fails to see how these documents would be relevant
to Plaintiff’s claim for emotional damages, his credibility, or any of his disability discrimination
allegations. Furthermore, none of these categories of documents appear relevant to any other claim
or defense in this case. The Court recognizes that the Harroald court allowed subpoenas seeking
a broad range of categories of the plaintiff’s employment records and did not discuss relevance as
to the specific individual categories of documents sought. The Court also notes that in that case the
defendant had alleged that the plaintiff was untruthful on her employment application whereas there
has been no such allegation in this case. Nor have Defendants pled the after-acquired evidence
defense in this case, which may justify discovery of a broader range of Plaintiff’s employment
records from his former employers. Finally, the Court has concerns regarding the potential abuse
of overly broad subpoenas served on a plaintiff’s former employers and will thus limit the proposed
subpoenas to only those categories of documents where the relevancy has been established.
Plaintiff’s relevance objections are therefore sustained to the subpoenas’ requests for the following
categories of documents: Plaintiff’s employment applications, his former employer’s interview
notes or papers, background investigation reports, hiring papers, employment agreements, signed
acknowledgment forms, training documents, job duties/description, and payroll/benefits information.
Objection that Subpoenas Violate Constitutional Right to Privacy
Plaintiff also objects to the subpoenas because they seek protected, confidential information
and invade his privacy and personal rights. Defendants point out that a Stipulated Protective Order
has been entered in this case, which limits the production and dissemination of confidential
information. They assert that this Protective Order sufficiently protects any alleged privacy concerns
raised by Plaintiff. The Court agrees and is satisfied that Plaintiff’s privacy, confidentiality, and
personal rights are adequately protected by the existing Protective Order (ECF No. 19) entered in
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Protective Order (ECF No.
39) is granted in part and denied in part. Plaintiff’s request for a protective order precluding
Defendants from serving the proposed four subpoenas on his former employers is denied. Plaintiff’s
relevancy objections are sustained in part however. Plaintiff has shown that the subpoenas as
proposed are overly broad by seeking specific categories of documents and information that are not
relevant to any claim or defense in this case. Defendants may serve the four proposed subpoenas
on Plaintiff’s former employers, but they shall modify the subpoenas to only request the following
categories of documents and information: performance evaluations, discipline and discharge
information, attendance information, documents related to any work-related injury, allegations or
complaints by or against Plaintiff, and charges and complaints made or filed by Plaintiff.24
IT IS FURTHER ORDERED THAT each party shall bear its or his own expenses related
to the motion.
IT IS SO ORDERED.
Dated this 1st day of July, 2013 at Kansas City, Kansas.
S/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge
These categories of documents are identified on the proposed subpoenas as numbers (6),
(9), (10), and (14) through (16).
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