Fritz v. Comstock, Charter Township of et al

Filing 62

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

S U E FRITZ, an individual, P l a in tif f , F ile No. 1:07-CV-1254 v. H O N . ROBERT HOLMES BELL C H A R T E R TOWNSHIP OF COMSTOCK, a public body, and TIM HUDSON, individually and in his official capacity as S u p e rv is o r for the Charter Township of C o m s to c k , D e f e n d a n ts . / OPINION T h is matter comes before the Court on a motion for protective order filed by Farm B u re a u Life Insurance Company of Michigan ("Farm Bureau"). (Dkt. No. 54.) Farm Bureau is not a party to this action. Plaintiff served a subpoena on counsel for Farm Bureau r e q u e s t in g the production of copies of personnel files of current and former Farm Bureau re p re se n ta tiv e s who are not parties to this action.1 Farm Bureau seeks an order quashing the su b p o en a because the personnel files are not relevant to this case. In the alternative, Farm B u re a u requests an order to protect the privacy of the non-parties whose files have been

The subpoena requests "personnel files including any supervisor desk files of Tracy N ee ly, Mike Purwin, Ron Ryder, Jason Woytal, Greg Naki, Richard Kielen and Robert L u x m o re." (Dkt. No. 55, Ex. A.)

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re q u e ste d because the files (or portions of them) are confidential and protected from d is c lo s u re under the common law and various statutes. The Township Defendants concur in Farm Bureau's request to quash the subpoena. D e f en d a n ts contend that the requested documents are not relevant to any claim in this action, an d the subpoena was issued after the close of discovery. (Dkt. No. 61, Defs.' Resp.) Plaintiff's subpoena request is deficient in two respects. First, it is untimely. The d i s c o v e ry deadline in this case was November 1, 2008. (Dkt. No. 13.) Plaintiff did not s e rv e the subpoena on Farm Bureau until April 5, 2010, after the close of discovery.2 A lth o u g h there is some authority to the contrary,3 a Rule 45 subpoena seeking d o c u m e n ts from a third-party has generally been held to constitute discovery that is subject to the same deadlines that apply to all other formal discovery. See, e.g., MedImmune, LLC v . PDL Biopharma, Inc., No. 08-5590, 2010 WL 1266770, at *1 (N.D. Cal. Apr. 1, 2010); A b r a m s v. Ciba Specialty Chems. Corp., No. 08-68, __ F.R.D.__, 2010 WL 1141411, at *3 (S .D . Ala. Mar. 19, 2010); Pushko v. Klebener, No. 3:05-cv-211, 2007 WL 2671263, at *3 (M .D . Fla. Sept. 7, 2007); see also Estate of Wells ex rel. Wells v. Bureau County, No.

Although the subpoena was issued after the close of discovery, the lapse of time is n o t as great as it appears because the case was on appeal. This Court issued its judgment on N o v e m b e r 26, 2008. The judgment was reversed and remanded on January 28, 2010, and th e mandate issued on March 25, 2010. See O'Boyle v. Jensen, 150 F.R.D. 519, 520 (M.D. Pa.1993) ("The discovery d e a d lin e established by the court . . . was not intended to preclude . . . parties from gathering a d d itio n a l information on their own case or that of their opponent through independent lines o f inquiry not directed to, or requiring the participation of, the other side.").
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0 8 -11 2 8 , 2010 WL 1416838 (C.D. Ill. Apr. 5, 2010) (quashing untimely subpoena). H o w e v e r , although a Rule 45 subpoena cannot be used to circumvent discovery deadlines, it may be employed after discovery is closed for the purpose of memory refreshment, for trial p re p a ra tio n , or to secure the production at trial of original documents previously disclosed d u rin g discovery. Abrams, 2010 WL 1131311, at *3 (citing cases). The information Plaintiff seeks is classic discovery information that should have been p u rs u e d during the course of discovery. Plaintiff's subpoena for this information after the c lo s e of discovery is untimely. Plaintiff's subpoena request is also deficient because Plaintiff has not demonstrated a sufficient justification for disclosure of the sensitive personnel files of non-parties. The F e d e ra l Rules of Civil Procedure limit the scope of discovery to "nonprivileged" matters that a re "relevant" to a party's claim or defense. Fed. R. Civ. P. 26(b)(1). Even if a matter is b o th nonprivileged and relevant, a district court still has discretion to further limit the scope o f discovery "where the information sought is overly broad or would prove unduly b u rd e n so m e to produce." Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6 th Cir. 2007) (citing Fed. R. Civ. P. 26(b)(2)). "Although a plaintiff should not be denied a c ce ss to information necessary to establish her claim, neither may a plaintiff be permitted to go fishing." Id. (internal quotations omitted); see also Cuomo v. Clearing House Ass'n, L .L .C . 129 S.Ct. 2710, 2719 (2009) ("Judges are trusted to prevent `fishing expeditions' or a n undirected rummaging through bank books and records for evidence of some unknown

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w ro n g d o in g ."). When the subject of a discovery request is personnel files, it is appropriate f o r the Court to require a heightened showing of relevance and need. See Compuware Corp. v . Moody's Investors Servs., Inc. 222 F.R.D. 124, 134 (E.D. Mich. 2004) (holding that p e rso n n e l files were not discoverable where the plaintiff failed to show that they were clearly re lev a n t and that a compelling need existed); Miller v. Fed. Express Corp., 186 F.R.D. 376, 3 8 4 (W.D. Tenn. 1999) ("Personnel records, because of the privacy interests involved, should n o t be ordered produced except upon a compelling showing of relevance."); Raddatz v. S ta n d a r d Register Co., 177 F.R.D. 446, 447-48 (D. Minn. 1977) (noting that because p erso n n el files contain an employee's sensitive and personal data, ordering their disclosure is a highly intrusive act that should not be undertaken lightly). Plaintiff contends that the personnel files of Neely, Rurwin, Ryder, Woytal, and Naki a re relevant to this case because, if she can show that similarly-situated employees who had d if f ic u ltie s with supervisors or employees were not terminated, that makes it more likely that th e true reason that Farm Bureau terminated Ms. Fritz was because of her "controversial relatio n with the local governmental unit." (Dkt. No. 59, Pl.'s Resp. 2.) This case only involves Plaintiff's claims of First Amendment retaliation and tortious in te rf e re n c e with contract against the Township Defendants. This case is not about why F a rm Bureau terminated Plaintiff. Plaintiff's termination letter indicated that she was te rm in a te d based on her working relationship with Farm Bureau employees, and her c o n tro v e r s i a l community relations with her neighbors and the local governmental unit. A

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sh o w ing that other employees who had poor working relationships with Farm Bureau were n o t terminated would have little or no probative value on the issue of whether the Township D ef en d an ts intentionally interfered with Plaintiff's employment relationship with Farm B u re a u . Although Plaintiff contends that the employees whose personnel files she seeks w e re similarly situated, she does not suggest that any of them had controversial community re la tio n s . Neither does she suggest that the nature of their poor working relationships was s im ila r to hers. Moreover, a showing that other employees were not fired is not probative o f the Township Defendants' intentional interference with her employment because it fails to establish any interference by the Township Defendants and it fails consider that Farm B u r e a u might have been concerned about Plaintiff's "controversial community relations" w ith her neighbors and the local governmental unit even in the absence of any c o m m u n ic a tio n from the Township. Plaintiff contends that the personnel files of Luxmore and Keilen, who participated in the termination decision, are relevant because they "may have left" Farm Bureau or "may h a v e been terminated," and Plaintiff "wonders" whether her situation had anything to do with it, and, in any event, there "may be" information in their files that would be relevant to their cre d ibility. (Pl.'s Resp. 5-6.) Plaintiff's subpoena for personnel files of Farm Bureau employees strikes the Court a s little more than a fishing expedition. Even if medical and financial information is re m o v e d from the files, the contents of the files are nevertheless of a sensitive and

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c o n f i d e n t ia l nature. Plaintiff has not shown that the information is clearly relevant to her c la im s or that she has a compelling need for it. The likelihood that Plaintiff will discover re le v a n t information in the personnel files is speculative and is outweighed by the e m p l o ye e s ' privacy interests. F a rm Bureau's motion for a protective order quashing the subpoena will be granted b e c au s e the subpoena is untimely and because Plaintiff has not demonstrated a sufficient ju s tif ic a tio n for disclosure of the sensitive personnel files of non-parties. A n order consistent with this opinion will be entered.

Dated: May 10, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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