Kear v. Kohl's Department Stores, Inc.

Filing 54

MEMORANDUM AND ORDER denying 28 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 2/20/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TIFFANY KEAR,

)
)
Plaintiff,
)
)
v.
)
)
KOHL’S DEPARTMENT STORES, INC., )
)
Defendant.
)
___________________________________ )

Case No. 12-1235-JAR-KGG

MEMORANDUM & ORDER ON
MOTION FOR PROTECTIVE ORDER
Now before the Court is Plaintiff’s “Motion for Protective Order to Prevent
Defendant from Jeopardizing Plaintiff’s Current Employment by Issuing an
Unnecessary Subpoena.” (Doc. 28). Having reviewed the submissions of the
parties, the Court DENIES Plaintiff’s motion.
FACTS
Plaintiff filed her Civil Complaint against her former employer, Defendant
Kohl’s Department Stores, Inc. (Doc. 1.) Plaintiff alleges various violations of
Title VII, including that she was subjected to gender discrimination, gender
“stereotyping,” pregnancy discrimination, and hostile environment sexual

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harassment, retaliation, as well as discrimination under Kansas law, and
constructive discharge.
Prior to filing an Answer, Defendant filed its Motion to Dismiss, alleging
that Plaintiff failed to exhaust her administrative remedies in regard to her
retaliation claim and that her claim for constructive discharge “‘cannot constitute
an independent cause of action.’” (Doc. 1, at 2, 4 (internal citation omitted).) The
District Court granted Defendant’s motion, dismissing the retaliation claim without
prejudice and the constructive discharge claim with prejudice. (See Doc. 49.)
Thereafter, Defendant filed its Answer to Plaintiff’s Complaint (Doc. 52),
generally denying Plaintiff’s allegations and causes of action.
After filing its Motion to Dismiss, Defendant notified Plaintiff of its intent to
issue a records subpoena to Toys R Us, Plaintiff’s current employer. (Doc. 29-1.)
The subpoena sought “[a]ny and all documents relating to” Plaintiff and Patrick
Jerome Bride, including their “employment records, . . . performance evaluations,
documentation of any potential promotions, applications for employment,
compensation, . . . medical leave,” tax records, and information relating to bonuses.
(Id., at 4.) Mr. Bride previously worked with Plaintiff a Kohl’s and is now also
employed by Toys R Us.
After communication between the parties, the following categories of
information remain at issue: 1) Plaintiff’s employment and personnel records other

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than her job application; 2) documentation regarding bonuses, options, stock and
compensation plans for management; and 3) the personnel file of Mr. Bride. (Doc.
29, at 5; Doc. 37, at 3-4.) Plaintiff brings the current motion arguing that the
subpoena to her current employer could “potentially jeopardize [her] employment”
and that much of the requested information is irrelevant. (Doc. 29, at 1-2.)
ANALYSIS
Federal Rule of Civil Procedure 26(c) governs protective orders and
provides, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending . . . . The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
***
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the
disclosure or discovery;
***
(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters; . .
..
Fed.R.Civ.P. 26(c)(1).

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The party seeking to quash a subpoena must show “good cause” for the
requested protective order. Id.; Sloan v. Overton, No. 08-2571-JAR-DJW, 2010
WL 3724873 (D.Kan. Sept. 17, 2010). 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. Zhou v. Pittsburg State Univ., No.
01-2493-KHV, 2002 WL 1932538, at *2 (D.Kan. July 25, 2002).
Plaintiff argues that the subpoena issued by Defendant, her former employer,
to Toys R Us, her current employer, should be looked upon with “disfavor” as a
“discovery tactic to harass a plaintiff and disrupt his/her current employment.”
(Doc. 29, at 3, citing Graham v. Casey’s General Stores, 206 F.R.D. 251 (2002).)
Plaintiff also argues that Defendant cannot show relevance of the remaining
information at issue. (Id., at 5.) Defendant also argues that Plaintiff does not have
standing to object to the information requested regarding Mr. Bride. (Doc. 37, at
4-5.)
The Court is sympathetic to Plaintiff’s concerns regarding the harassment
factor of the subpoena at issue. The potential for misuse of this procedure by a
former employer is obvious. Even so, the Court finds that the overriding principle
that will determine this issue is whether Defendant has established the relevance of
the requested information.
Federal Rule of Civil Procedure 26(b)(1) provides, in relevant part:

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[u]nless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense-including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the identity
and location of persons who know of any discoverable
matter. For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the
action. Relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1).
“[T]he scope of discovery under a subpoena is the same as the scope of
discovery under Rules 26(b) and 34.” Goodyear Tire & Rubber Co. v. Kirk’s Tire
& Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 622 (D. Kan. 2003)
(citations omitted). “‘Discovery relevance is minimal relevance,’ which means it is
possible and reasonably calculated that the request will lead to the discovery of
admissible evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State
University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted).
“Relevance is broadly construed at the discovery stage of the litigation and a
request for discovery should be considered relevant if there is any possibility the
information sought may be relevant to the subject matter of the action.” Smith v.
MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another
way, “discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
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By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991). The issue is not whether
the information will be admissible at trial, but whether it meets discovery threshold
of relevancy.
Plaintiff’s employment records with her current employer are undeniably
relevant on their face for a variety of reasons – statements she may have made
regarding her past employment, information relating to her potential economic
damages, information regarding potential on-going emotional damages, etc.
Despite the fact that there is a potential for Plaintiff to be annoyed, embarrassed or
harassed as a result of the subpoena (see Doc. 43, at 2), Plaintiff does not – and
cannot – establish that this will actually occur. Thus, this potential annoyance to
Plaintiff does not outweigh Defendant’s showing of the obvious relevance of the
information requested.
The same is true for information requested regarding management employee
bonuses, stock, and compensation packages. Plaintiff’s requested damages include
$122,000 in the form of past lost salary and bonuses from 2010-2012. Defendant
anticipates Plaintiff will amend her damages to include the time frame up to trial.
(Doc. 37, at 11.) This category of information requested in the subpoena is
specifically relevant to Plaintiff’s damages claim.

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The issue of Mr. Bride’s personnel file is a bit more complicated. Defendant
argues that Plaintiff does not have standing to object to Defendant’s request for
Mr. Bride’s personnel file. (Id., at 4-5.) As this Court has previously held, “[a]
motion to quash or modify a subpoena duces tecum may be made only by the party
to whom the subpoena is directed.” Wichita Firemen’s Relief Ass’n v. Kansas
City Life Ins. Co., No. 11-1029-KGG, 2012 WL 3245451, at *2 (D. Kan. Aug. 8,
2012) (citing Peterbilt of Great Bend, LLC v. Doonan, 05-1281-JTM, 2006 WL
3193371, at *2 (D. Kan. Nov. 1, 2006) (internal citation omitted)). An exception
to this rule is when the party challenging the subpoena “has a personal right or
privilege in respect to the subject matter requested in the subpoena.” Smith v.
Midland Brake, Inc., 162 F.R.D. 683, 685 (D. Kan. 1995); see also Hertenstein v.
Kimberly Home Health Care, Inc., 189 F.R.D. 620, 635 (D.Kan. 1999).
Defendant argues that Plaintiff cannot establish that she has a “personal right
or privilege” regarding another employee’s personnel file. The Court finds,
however, that Plaintiff has established a “personal right” in regard to Defendant’s
request for Mr. Bride’s personnel file because of the potential for harassment and
interference with her current employment. As such, Plaintiff does have standing to
object to this portion of the subpoena.
Even so, the information regarding Mr. Bride remains relevant to Plaintiff’s
claims. Mr. Bride is an individual “alleged to have engaged in the retaliation or

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discrimination at issue,” thus making his personnel records relevant. White v.
Graceland Coll. Ctr for Prof. Dev., 586 F. Supp. 2d 1250, 1259 (D. Kan. 2008);
see also Doc. 1, at ¶¶ 14-17.
Considering the minimal threshold for discovery relevance, the Court
overrules Plaintiff’s objections to the subpoena at issue. Given the claims,
categories of damages sought, and defenses raised in this lawsuit, the information
at issue could reasonably lead to the discovery of admissible evidence.

IT IS THEREFORE ORDERED the objections raised in Plaintiff’s Motion
for Protective Order and supporting memorandum (Doc. 28, 29) are overruled as
more fully set forth herein. Plaintiff’s motion is, therefore, DENIED.
IT IS SO ORDERED.
Dated this 20th day of February, 2013, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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