GRAY v. SAVAGE SERVICES CORPORATION

Filing 26

MEMORANDUM DECISION AND ORDER ON MOTION TO QUASH SUBPOENA - denying 21 Motion to Quash. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS GRAY,
Plaintiff
v.
SAVAGE SERVICES CORPORATION,
Defendant

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No. 2:12-cv-225-NT

MEMORANDUM DECISION AND ORDER ON MOTION TO QUASH SUBPOENA
The State of Maine Department of Labor (“Department”), a non-party to this case, moves
pursuant to Federal Rule of Civil Procedure 45(c)(3)(A)(iii) to quash a subpoena served upon it
by the defendant seeking unemployment records of the plaintiff. See generally State of Maine
Department of Labor’s Motion To Quash (“Motion”) (ECF No. 21). The Department contends
that it is not permitted by applicable state or federal law to release the requested records
voluntarily, although it has no objection to releasing them pursuant to court order with whatever
protections the court deems appropriate. See id. ¶¶ 8, 11.
The defendant opposes the motion, observing that (i) the plaintiff, whose records are
requested, does not seek to quash the subpoena, (ii) the requested materials are relevant, and
(iii) the defendant will treat any documents obtained pursuant to the subpoena as confidential
pursuant to the confidentiality order already entered in this case at ECF No. 13. See generally
Defendant’s Opposition to State of Maine Department of Labor’s Motion To Quash
(“Opposition”) (ECF No. 22).
For the reasons that follow, the Motion is denied, with the caveat that the defendant is
ordered to (i) designate and treat all information obtained pursuant to the subpoena as

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confidential pursuant to the confidentiality order entered at ECF No. 13 and (ii) reimburse the
Department its costs of copying the subpoenaed documents.
I. Applicable Legal Standards
Federal Rule of Civil Procedure 45 directs that, on timely motion, an issuing court must
quash or modify a subpoena that, inter alia, “requires disclosure of privileged or other protected
matter, if no exception or waiver applies[.]” Fed. R. Civ. P. 45(c)(3)(A)(iii).
II. Discussion
As the Department notes, see Motion ¶ 4, the Maine Employment Security Law provides,
in relevant part:
Information . . . obtained from any individual pursuant to the administration of
this chapter, except to the extent necessary for proper presentation of a claim,
must be held confidential and may not be published or opened to public
inspection, other than to public employees in the performance of their public
duties or to any agent of an agency that is under contract with a state or local
child-support agency, or to any agent of an agency that is under contract or
subcontract with the state employment and job training agency, pursuant to
safeguards established by the commissioner, in any manner revealing the
individual’s or employing unit’s identity, but the department shall, upon request,
provide to any party to an adjudicatory proceeding information from the records
relating to the proceeding.
26 M.R.S.A. § 1082(7).
The Law Court has construed this provision “as prohibiting voluntary disclosure by the
[Department] but not as prohibiting mandatory disclosure . . . when required by a court of
competent jurisdiction[.]” Pooler v. Maine Coal Prods., 532 A.2d 1026, 1028 (Me. 1987)
(citation and internal quotation marks omitted).
As the Department also observes, see Motion ¶ 7, federal regulations governing the
confidentiality and disclosure of state unemployment compensation information provide, in
relevant part:

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Except as provided in paragraph (b) of this section, when a subpoena or other
compulsory process is served upon a State UC [Unemployment Compensation]
agency or the State, any official or employee thereof, or any recipient of
confidential UC information, which requires the production of confidential UC
information or appearance for testimony upon any matter concerning such
information, the State or State UC agency or recipient must file and diligently
pursue a motion to quash the subpoena or other compulsory process if other
means of avoiding the disclosure of confidential UC information are not
successful or if the court has not already ruled on the disclosure. Only if such
motion is denied by the court or other forum may the requested confidential UC
information be disclosed, and only upon such terms as the court or forum may
order, such as that the recipient protect the disclosed information and pay the
State’s or State UC agency’s costs of disclosure.
20 C.F.R. § 603.7(a).
Pursuant to paragraph (b)(1) of that regulation, the “requirement of paragraph (a) . . . to
move to quash subpoenas shall not be applicable, so that disclosure is permissible, where . . . a
subpoena or other compulsory legal process has been served and a court has previously issued a
binding precedential decision that requires disclosures of this type, or a well-established pattern
of prior court decisions have required disclosures of this type[.]” Id. § 603.7(b)(1).
Neither the Department nor the defendant cites a binding precedential decision or wellestablished pattern of prior court decisions requiring disclosures of this type, see generally
Motion; Opposition, and my research reveals none. The Department properly moved to quash
the subpoena. However, I deny its motion for the following reasons:
1.

As the Department concedes, both the Maine statute and the federal regulation

permit disclosure of the requested information pursuant to a court order.

See 20 C.F.R.

§ 603.7(a); 26 M.R.S.A. § 1082(7); Pooler, 532 A.2d at 1028.
2.

Both the statute and the regulation aim to protect the confidential information of

employees and employers, see id., yet neither the plaintiff nor any of his former employers has
filed a motion to quash or otherwise objected to the release of his or its information. Indeed, the

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defendant states that counsel for the plaintiff has represented to its counsel that the plaintiff does
not seek to quash the subpoena. See Opposition at 1.
3.

The defendant represents that it will treat the information that it obtains pursuant

to the subpoena as confidential pursuant to the confidentiality order already entered in this case,
see id. at 3, an appropriate protection that I have incorporated into my order, below.
4.

No one contends that the information at issue is privileged, and the defendant

makes an adequate showing of its relevance, specifically, that it is relevant to questions of the
plaintiff’s credibility, the defendant’s after-acquired evidence defense that the plaintiff supplied
inaccurate information in his application for employment with the defendant, and the plaintiff’s
mitigation of damages through job search efforts. See id. at 1-3. The subpoenaed information,
hence, is discoverable. See Fed. R. Civ. P. 26(b)(1).
5.

The Department requests that the defendant (mistakenly referred to as the

plaintiff) be ordered to pay its costs of producing the subpoenaed documents, see Motion ¶ 10,
and the defendant agrees to reimburse the Department for its copying costs, see Opposition at 3,
a provision that I have incorporated into my order, below.
III. Conclusion
For the foregoing reasons, the Department’s motion to quash the subpoena issued to it by
the defendant is DENIED, and the Department is ORDERED to produce the subpoenaed
documents forthwith to the defendant. The defendant is ORDERED to designate and treat all
information received pursuant to the subpoena as confidential pursuant to the confidentiality
order entered at ECF No. 13 and to reimburse the Department its costs of copying the
subpoenaed documents.

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NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 26th day of April, 2013.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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