Employment Background Investigations, Inc. v. Myrick

Filing 2

MEMORANDUM. Signed by Judge Ellen L. Hollander on 8/29/2017. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
In re SUBPOENA of EMPLOYMENT
BACKGROUND INVESTIGATIONS,
INC.
MARSHALL MYRICK, on behalf of
himself and on behalf of all others
similarly situated,

Civil Action No. ELH-17-1850

Plaintiff,
v.

(Related Case: 8:17-cv-261-JDW-MAP
in the U.S. District Court for the
Middle District of Florida)

THE MIDDLESEX CORP.
Defendant.
MEMORANDUM
This Memorandum resolves the Motion to Quash (ECF 1) filed by Employment
Background Investigations, Inc. (“EBI”) pursuant to Fed. R. Civ. P. 45.

It concerns two

subpoenas served on EBI by the plaintiff in the class action lawsuit captioned Myrick v. The
Middlesex Corporation, Case No. 8:17-cv-261-JDW-MAP, pending in the Middle District of
Florida (“Florida Case” or “Fla. Case”). 1 The motion is supported by a memorandum of law
(ECF 1-1) (collectively, “Motion”), and several exhibits. See ECF 1-2 through ECF 1-5.
EBI is not a party to the Florida case. The Motion was filed in the District of Maryland
because compliance with the subpoenas is required in this District.

See Fed. R. Civ. P.

45(d)(3)(A).
Although the Motion reflects service on counsel for the parties in the Florida Case (ECF
1 at 3), no party has responded to the Motion. See docket. A hearing is not necessary to resolve
the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.
1

To my knowledge, no class has yet been certified. See Fla. Case, Docket.

I.

Factual and Procedural Background

Marshall Myrick initiated the Florida Case on February 1, 2017, alleging that The
Middlesex Corporation (“Middlesex”) violated the Fair Credit Reporting Act (“FCRA”), 15
U.S.C. § 1681, et seq. See ECF 1-4 (Complaint in Fla. Case). In particular, Myrick alleges that,
through an outside consumer reporting firm, Middlesex conducts background checks on “the
majority of its prospective employees” and on “current employees from time to time.” Id. ¶¶ 1617. But, he complains that Middlesex “does not provide prospective or current employees with a
copy of their consumer reports before taking adverse action against them based on the
information in such reports.” Id. ¶ 25.
Plaintiff asserts, id. at 27:
By failing to provide Plaintiff and other Putative Class members with copies of
their consumer reports prior to taking adverse employment action against them
based on the information contained in such reports, Defendant willfully
disregarded . . . unambiguous regulatory guidance as well as the plain language of
the statute, in violation of 15 U.S.C. § 1681 b(b)(2)(A).
According to plaintiff, he applied for a job as a construction worker with Middlesex in
September 2016. Id. ¶ 28. He received an offer of employment, subject to a background check.
Id. ¶ 30. Middlesex then procured a consumer report on plaintiff, conducted by EBI. Id. ¶ 31;
see ECF 1-1 at 3. Thereafter, on November 28, 2016, plaintiff was terminated. Id. ¶ 32.
Plaintiff maintains that he was terminated as a result of the content of his consumer report. Id.
¶ 33.

However, he alleges that he was given “no pre-adverse notice whatsoever of the

information contained in the consumer report . . . .” Id.
Middlesex answered the Complaint on March 17, 2017. Fla. Case, ECF 7. Judge James
Whittemore, to whom the case is assigned, issued a Scheduling Order on May 2, 2017. Fla.

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Case, ECF 14. Among other things, the Scheduling Order sets March 15, 2018, as the deadline
for the completion of discovery and provides that trial will begin on August 6, 2018. Id.
On June 19, 2017, plaintiff issued a subpoena to EBI, commanding a corporate
representative to appear at a deposition in Baltimore on July 14, 2017, pursuant to Fed. R. Civ. P.
45 and Fed. R. Civ. P. 30(b)(6). ECF 1-2 (“Deposition Subpoena”). The Deposition Subpoena
provided that the corporate representative must have knowledge sufficient to testify as to 39
topics, including, id.:
7.

Since February 1, 2015, EBI's policies, practices, and procedures –
including the governing contracts, agreements, or statements of work – for
furnishing employment purposed consumer reports to Lowe's [sic] and any
of its subsidiaries.

8.

The general substance, detail, and archive data available to you regarding
the content, substance, dates, and nature of consumer reports you
furnished for employment purposes since February 1, 2015.
* * *

11.

EBI's policies, practices, and procedures regarding compliance with the
FCRA, including but not limited to 15 U.S.C. § 1681b(b)-"Conditions for
furnishing and using consumer reports for employment purposes," that
EBI shared with or provided to the Defendant in this lawsuit. By
definition this includes both online forms, and forms given to applicants in
person.
* * *

14.

All agreements and contracts between EBI and Defendant.

15.

Any investigations into EBI in any state or federal agency for violations of
the FCRA.
* * *

18.

Since April 8, 2011, the materials- including training manuals, PowerPoint
presentations, live training, and webinars – you made available to your
employees pertaining to compliance with Sections 1681e(b), 1681k, and
1681i of the FCRA.

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* * *
21.

Since February 1, 2015, the complete rules, policies, and procedures for
performing adjudication or grading of reports you created for applicants or
employees of Defendant.
* * *

25.

The number of consumers about whom you furnished to Defendant an
employment purposed consumer report containing a criminal arrest or
conviction record for each year from February 1, 2015 through the
present.
* * *

30.

Defendant's certification to Sterling [sic] that before obtaining Plaintiff's
consumer report it complied with each of the requirements of 15 U.S.C. §
1681b(b)(l)(A). To the extent an individual certification was provided to
the CRA as to Plaintiff please produce it; to the extent The Middlesex
Corporation and/or EBI instead relied upon a blanket certification for all
putative class members to comply with 15 U.S.C. § 1681b(b)(l)(A) to
procure consumer reports, please describe it.

31.

EBI's process for matching pubic-record information to particular
consumers for the purposes of including that information in employment
purposed consumer reports.
* * *

34.

The complete process you use to update criminal record data housed in
your National Criminal File Database.
* * *

36.

All databases or other computer archives containing criminal records
and/or data regarding consumers, including name, hardware, software,
format, fields, tables, and ability to search.
* * *

38.

All communications with any insurance carrier about this case.

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Notably, plaintiff sought information related to “Lowe’s” and “Sterling”, neither of
which, to my knowledge, has any connection to this litigation.

See ECF 1-2, ¶¶ 7, 30.

According to EBI, “Lowe’s and Sterling have been targeted in other FCRA lawsuits, but neither
company has any relationship to the underlying lawsuit.” ECF 1-1 at 4 n. 5.
In addition, on June 23, 2017, counsel for plaintiff issued a subpoena to EBI for the
production of documents, information, or objects by July 10, 2017. ECF 1-3 (“Document
Subpoena”). The Document Subpoena sought 31 items, including, id.:
2.

All documents that summarize, describe, or refer to EBI's policies,
practices, and procedures regarding compliance with the Fair Credit
Reporting Act ("FCRA"), including but not limited to 15 U.S.C. §
1681b(b)-"Conditions for furnishing and using consumer reports for
employment purposes."
* * *

7.

All documents that describe or refer to EBI's policies, practices, and
procedures for providing consumer reports to Defendant's employment
applicants or employees applying for promotion prior to taking adverse
action.
* * *

10.

All documents that relate to ay [sic] investigations into EBI in any state or
federal agency for violations of the FCRA.
* * *

12.

The business relationship between Defendant and EBI, including any
entities that EBI purchased, acquired, subsumed, or merged with that had a
business relationship with Defendants.
* * *

17.

The full substance, detail and archive date [sic] available to you regarding
the content, substance, dates, and nature of consumer reports you
furnished for employment purposes since February 1, 2015.
* * *

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20.

The number of consumers about whom you furnished to Defendants an
employment-purposed consumer report containing a criminal or traffic
arrest or conviction record for each month from February 1, 2015 through
the present.
* * *

22.

For each month since February 1, 2015, all evidence you possess
regarding the amount of time that lapses between the moment an
employment-purposes consumer report containing database public record
information is adjudicated as ineligible for hire by you and the moment a
pre-adverse action letter is physically deposited with the United States
Postal Service, on behalf of the Defendants.
* * *

28.

A list of the other customers to whom EBI sells consumer reports to.
* * *

30.

Your systems' electronic connection to or interaction with Defendants'
hiring system.

According to EBI, Myrick did not consult with EBI prior to serving the subpoenas. ECF
1-1 at 2 n. 3. EBI states that it “reached out to Myrick’s counsel on both June 29 and 30, 2017,
in a good faith effort to confer before filing this Motion to Quash, but the parties were unable to
reach an agreement.” Id.
II.

Discussion

EBI claims that the information sought in the subpoenas is both overly broad and unduly
burdensome for EBI to produce. See ECF 1-1. Fed. R. Civ. P. 45(d)(3) is titled “Quashing or
Modifying a Subpoena.” It states, in pertinent part: “On timely motion, the court for the district
where compliance is required must quash or modify a subpoena that . . . (iv) subjects a person to

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undue burden.” 2

In Maxtena, Inc. v. Marks, 289 F.R.D. 427, 439 (D. Md. 2012), Judge

Chasanow explained, id.:
“Whether a subpoena subjects a witness to undue burden within the
meaning of Rule 45[(d)](3)(A)(iv) usually raises a question of the reasonableness
of the subpoena,” an analysis that requires “weighing a subpoena’s benefits and
burdens” and “consider[ing] whether the information is necessary and whether it
is available from any other source.” 9A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2463.1 (3d ed. 2008). This inquiry is “highly
case specific” and involves “an exercise of judicial discretion.” Id. “The burden
of proving that a subpoena is oppressive is on the party moving to quash.” Fleet
Bus. Credit, LLC v. Solarcom, LLC, No. Civ. AMD 05–901, 2005 WL 1025799,
at *1 (D. Md. May 2, 2005) (internal quotation marks omitted).
Notably, “the scope of discovery allowed under a subpoena is the same as the scope of
discovery allowed under Rule 26.” Phillips v. Ottey, No. DKC 14-0980, 2016 WL 6582647, at
*2 (D. Md. Nov. 7, 2016) (quoting Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240–41
(E.D. Va. 2012)) (internal quotation marks omitted); accord EEOC v. Performance Food Grp.,
Inc., MJG-13-1712, 2017 WL 2461977, at *2 (D. Md. June 7, 2017). Under Rule 26(b)(1), a
party may “obtain discovery regarding any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.
Civ. P. 26(b)(1). Subpoenas that are overbroad and that seek information “‘irrelevant to the
case’ should be considered unduly burdensome.” Bierman Family Farm, LLC v. United Farm
Family Ins. Co., ADC-17-0004, 2017 WL 3311206, at *3 (D. Md. Aug. 2, 2017) (citation
omitted).

2

In 2013, the provisions in Fed. R. Civ. P. 45(c) were recodified from subdivision (c) to
subdivision (d). See Fed. R. Civ. P. 45 Advisory Committee’s note to the 2013 amendments.
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In the Motion, EBI claims that the subpoenas should be quashed because Myrick seeks
“wholly irrelevant documents and testimony from EBI and would impose an undue burden on
the company.[]” ECF 1-1 at 1. EBI notes that it is not a party in the underlying lawsuit and “had
only minimal involvement in the events alleged in the Complaint.” Id. at 2.

Moreover, EBI

points out that many of the requests in the subpoenas lack “any nexus” to Myrick’s claims. Id. at
5. EBI argues that it should “not be forced to throw open its doors to Myrick and provide every
detail about its operations.” Id..
Further, EBI argues, ECF 1-1 at 4 n. 5, that the Deposition Subpoena (ECF 1-2) is
“sloppily drafted”, referring to consumer reports furnished to “Lowe’s” and certifications
providing to “Sterling.” Id. ¶¶ 7, 30. Those entities have no apparent connection to the Florida
Case.
In support of its position, EBI has provided the Declaration of Curt Schwall, who is
EBI’s Vice Present of Compliance and Regulatory Affairs. ECF 1-5 (Schwall Declaration), ¶ 2.
Schwall asserts that “EBI does not send pre-adverse action or adverse action notices for The
Middlesex Corporation.” Id. ¶ 5. Further, he avers that EBI “furnishes thousands of consumer
reports each year for its various customers.” Id. ¶ 6.
With respect to the burden of complying with the subpoenas, Schwall claims: “I have
spoken with other EBI employees, and we estimate that it would take weeks to search for and
compile the information requested . . . .” Id. ¶ 7. In particular, he claims that “to comply with
request number 20 in the Document Subpoena, which asks for information about the specific
types of records contained in certain consumer reports, EBI would need to run and analyze a
series of systemic reports, which . . . would take a full week of work.” Id. ¶ 8. Schwall estimates

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that compliance with the subpoenas would require a total of 500 personnel hours, costing the
company more than $50,000. Id. ¶ 10.
As noted, Myrick did not respond to the Motion. Because Myrick did not respond to the
Motion, the Court is not in a position to assess accurately the degree to which such broad
discovery as to EBI would be useful or beneficial to plaintiff. In my view, however, the burdens
of the subpoena are quite substantial, and in many instances, the requested information appears
marginally beneficial, at best.
As indicated, the litigation concerns whether Middlesex provided appropriate pre-adverse
action notices to plaintiff and those similarly situated to plaintiff, pursuant to 15 U.S.C.
§ 1681b(b)(3)(A). See, e.g., ECF 1, ¶¶ 47-51. Given that EBI is not a party to the litigation, it
seems that much of the information and documents sought by Myrick are of questionable
relevance to the case. Much of the information requested by Myrick appears to target EBI’s
broader business practices and its dealings beyond those related to Middlesex.
For example, as indicated, Myrick requests “[t]he general substance, detail, and archive
data available . . . regarding the content, substance, dates, and nature of consumer reports . . .
furnished for employment purposes since February 1, 2015.” ECF 1-2 at 4, ¶ 6. There is no
apparent reason why EBI should be required to produce every consumer report that it has created
over the past two and half years, including reports generated for clients other than Middlesex.
In addition, I see little merit to Myrick’s requests for information concerning EBI’s violations of
the FCRA, other than information concerning EBI’s role in providing post-adverse action
notices, if any. Likewise, Myrick’s requests for information and documents concerning EBI’s
efforts to comply with provisions of the FCRA that are not at issue in the underlying litigation
appear to be beyond the scope of what is relevant. Compliance with these requests would

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require considerable effort and expense by EBI, disproportionate to any benefit. See ECF 1-5, ¶¶
8-10.
EBI’s assertion that Myrick’s subpoenas are tantamount to a “fishing expedition” (ECF
1-1 at 4) is an apt characterization. Myrick’s subpoenas would impose an undue burden on EBI,
without substantial benefits for the litigation.
To be sure, Rule 45(d)(3)(A) permits a court to modify a subpoena rather than quash it.
But, I shall decline to do so. Myrick is in the best position to justify the purpose of each of his
requests in the subpoenas. But, he has opted not to do so by failing to respond to the Motion.
Therefore, I shall grant the motion to quash, without prejudice to Myrick’s right to reformulate
his subpoenas.
III.

Conclusion

In view of the foregoing, I shall grant the Motion to quash the subpoenas, without
prejudice to Myrick’s right to issue new subpoenas, consistent with the applicable rules and any
orders of the court in the underlying case. Of course, the parties are urged to confer prior to the
issuance of further subpoenas.
An Order follows, consistent with this Memorandum.

Date: August 29, 2017

/s/
Ellen Lipton Hollander
United States District Judge

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