Nyanjom v. Hawker Beechcraft Corp.
MEMORANDUM AND ORDER granting 120 Motion for Order REQUIRING PLAINTIFF TO SIGN AUTHORIZATION. Signed by Magistrate Judge Kenneth G. Gale on 02-25-2014.(Gale, Kenneth)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HAROLD M. NYANJOM,
HAWKER BEECHCRAFT, INC.,
Case No. 12-1461-JAR-KGG
MEMORANDUM & ORDER
This case is before the Court on Defendant’s “Motion for Order Requiring
Plaintiff to Sign Authorization for Social Security Administration Records.” (Doc.
120.) After reviewing the submissions of the parties, the Court GRANTS
Defendant’s motion as more fully set forth below.
The background of this disability discrimination case was recently
summarized in this Court’s Memorandum & Order (Doc. 127) denying Plaintiff’s
Motion to Compel (Doc. 91). That summary is incorporated herein by reference.
Defendant contends that Plaintiff’s ability to prove that he was able to
perform the essential functions of his job, with or without reasonable
accommodation, “may be impaired by the fact that the applied for and received
Social Security disability benefits, which requires a representation that the
applicant is unable to work at any job.” (Doc. 120, at 2.) Defendant previously
filed a notice of intent to issue a subpoena to the Social Security Administration
(“SSA”). (Doc. 53.) Plaintiff filed a motion to quash the subpoena (Doc. 58),
which was denied by this Court on January 20, 2014 (Minute Order, Doc. 114).
The Minute Order stated
The Defendant has demonstrated that the documents
requested in the subpoena are relevant to the issues in
this case, or reasonably calculated to lead to relevant
evidence (Fed.R.Civ.P. 26(b)(1)) and that the request is
reasonably limited. All documents received pursuant to
the subject subpoena shall be deemed confidential and
subject to the Protective Order (Doc. 45). The Motion is
Defendant filed the return of service of the subpoena to the SSA on January
15, 2014. (Doc. 117.) The next day, citing case law and federal regulations, the
SSA sent correspondence to defense counsel stating it was prohibited from
releasing information responsive to the subpoena without a release signed by
Plaintiff. (Doc. 120-1.) The SSA suggested Defendant request the Court to order
Plaintiff to sign such a release. (Id.)
Defendant brings the present motion requesting an Order requiring Plaintiff
to sign an authorization. (Doc. 120.) Plaintiff responds that although the Court
denied his motion to quash the subpoena, the Court “did not specifically issue an
order to the SSA (signed by the sitting judge) to produce such documents . . . .”
Doc. 122, at 5 (emphasis in original).)1
On previous occasions, the undersigned Magistrate Judge has refused to
order a party to execute a Consent For Release of Information to the Social
Security Administration. See Kear v. Kohl’s Dept. Stores, Inc., No. 12-1235JAR-KGG, 2013 WL 3088922, *4 (D.Kan. June 18, 2013). The Court finds the
situation in Kear distinguishable because the defendant therein did not attempt to
employ the procedure contemplated by Rule 45. Id. Rather, the defendant
requested the signed release as part of a response to an interrogatory and a
subsequent motion to compel discovery responses. In the present case, Defendant
has complied with the procedure set forth by Rule 45, but the producing federal
government agency states it is statutorily prohibited from providing the
information absent a signed release and specifically requests the Court enter “an
order requiring the individual to authorize SSA to release the information.” (Doc.
120-1, at 3 (emphasis in original).) The Court has discretion to require the signing
of a release of Social Security records when the agency cannot comply with the
Plaintiff infers that because the Court’s Order denying the motion to quash was a
text entry, it did not have the legal authority of a written Order from the undersigned
Magistrate Judge. This is incorrect. The Court found in that Order that the request was
subpoena. Rodriguez v. IBP, Inc., 243 F.3d 1221 (10th Cir. 2001), cert. denied
534 U.S. 1055 (2001); Nelson v. The Farm, Inc., 2008WL15801 (D. Kan. 2008);
EEOC v. Thorman & Wright Corp., 243 F.R.D. 426 (D. Kan. 2007). The Court
therefore GRANTS Defendant’s motion. (Doc. 120.) The Court ORDERS
Plaintiff to execute the release form (Doc. 120-2) and return it to defense counsel
within two weeks of the date of this Order.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
(Doc. 74.) is GRANTED.
IT IS SO ORDERED.
Dated this 25th day of February, 2014, at Wichita, Kansas.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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