Laabs v. Nor-Son, Inc.
ORDER granting in part and denying in part 43 Motion for Protective Order; granting in part and denying in part 49 Motion to Compel. (Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 4/26/2021. (SK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 20-cv-1399 (PAM/ECW)
This matter is before the Court on Plaintiff’s Motion for Protective Order (Dkt. 43)
and Defendant’s Motion to Compel (Dkt. 49). For the reasons set forth below, the
Motions are granted in part and denied in part.
Plaintiff Brian Laabs (“Laabs” or “Plaintiff”) brought this case following the
termination of his employment with Defendant Nor-Son, Inc. (“Nor-Son” or
“Defendant”). The Complaint alleges as follows: Laabs has many years of experience in
construction, including over ten years of experience as a site lead in both commercial and
residential construction. (Dkt. 1 ¶ 6.) For years prior to being hired by Nor-Son, he
suffered from a physical condition that caused significant pain in his knees. (Id. ¶ 7.) In
or around April or May 2018, Nor-Son’s Director of Construction, John Jacob called
Laabs concerning working for Nor-Son. (Id. ¶ 8.) During their conversation, Laabs
disclosed that he suffered from knee pain and that he anticipated knee-replacement
surgeries within the next year or two. (Id.) Jacob hired Laabs over the phone, and Laabs
began working for Nor-Son as a site supervisor in Nor-Son’s commercial division
beginning May 2018. (Id. ¶ 9.)
On October 21, 2019, Laabs called Jacob to discuss his upcoming medical
appointment and knee surgery. (Id. ¶ 13.) Laabs also asked for information regarding
medical leave and disability. (Id.) Jacob instructed Laabs to consult with Nor-Son’s
benefit administrator, Bonnie Gardiepy. (Id.) The next day, Laabs spoke with Gardiepy
about short- and long-term disability and coverage under the Family and Medical Leave
Act (“FMLA”). (Id. ¶ 14.)
On October 28, 2019, while Laabs met with the knee surgeon, he received two
missed calls from Jacob. (Id. ¶ 17.) After the appointment, Laabs spoke to Jacob, who
terminated Laabs’ employment effective the previous working day, Friday, October 25,
Laabs alleges four counts in his Complaint: (1) violations of the FMLA, asserting
Nor-Son treated his need for FMLA leave as a negative in deciding to terminate his
employment, thereby discriminating against Laabs and avoiding its obligations under the
FMLA; (2) disability discrimination in violation of Americans with Disabilities Act
(“ADA”); (3) disability discrimination in violation of the Minnesota Human Rights Act
(“MHRA”); and (4) a claim under the Employee Retirement Income Security Act
(“ERISA”), based on his termination by Nor-Son for the purposes of interfering with
Laabs’ ability to secure benefits under Nor-Son’s medical and disability plans. (Id.
¶¶ 22-47.) In his Complaint, Laabs claimed damages, including wage and benefit loss
and emotional distress. (Id. ¶¶ 29, 36, 43.)
In particular, Laabs seeks damages for “emotional distress” under his ADA and
MHRA claims. (Id. ¶¶ 36, 43.) In his answers to discovery, Laabs asserts that he:
[I]s seeking only “garden variety” emotional distress damages. He has
neither been diagnosed with, nor sought treatment for, mental health issues
before or after his termination, and does not assert in this litigation that he
has suffered any physical injury as a result of Defendant’s unlawful actions.
(Dkt. 53-1 at 38.) He also claims the following income loss:
Income Loss: Plaintiff’s wages at the time of his termination was $85,000
annually, or $7083.33 monthly. Benefits prior to his termination ran $80.00
monthly. Continuing benefits through COBRA cost $700.00 a month, for a
difference of $620. Had Plaintiff’s employment not been terminated, he
would have earned roughly $77,900 in wages to date and paid roughly $7,700
less to date for benefits. Plaintiff’s wage loss damages are accruing.
(Id. at 39; see also id. at 69.)
In its Answer, Nor-Son asserts a number of affirmative defenses, including a
failure to mitigate damages, that Laabs is not a qualified person with a disability for the
purposes of the ADA and the MHRA, and the doctrine of after-acquired evidence. (See
Given this general background, the Court will proceed with analyzing the
outstanding discovery disputes between the parties.
Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery:
Unless 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 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. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). While Rule 26 contemplates a liberal scope of discovery, this
Court “possess[es] considerable discretion in determining the need for, and form of,
discovery . . . .” In re Nat’l Hockey League Players’ Concussion Injury Litig., 120 F.
Supp. 3d 942, 949 (D. Minn. 2015) (citations omitted).
Further, not only must information sought in discovery be relevant, it must also be
“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “In determining
proportionality, courts consider numerous factors, including ‘the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to the
relevant information, the parties’ resources, and importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.’” Beseke v. Equifax Info. Servs., LLC, No. 17-CV-4971-DWF-KMM,
2018 WL 6040016, at *3 (D. Minn. Oct. 18, 2018); see also Klein v. Affiliated Grp., Inc.,
No. 18-CV-949 DWF/ECW, 2019 WL 1307884, at *3 (D. Minn. Mar. 22, 2019). To this
end, a court upon a motion or on its own “must” limit discovery, when the discovery is
“unreasonably cumulative or duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive,” if “the party seeking discovery
has had ample opportunity to obtain the information by discovery in the action,” or if the
discovery is outside of the scope of Rule 26(b)(1). See Fed. R. Civ. P. 26(b)(2)(C)(i)(iii).
With respect to subpoenas and protective orders, “Federal Rule of Civil Procedure
45 provides that ‘the issuing court must quash or modify a subpoena that’ among other
things ‘requires disclosure of privileged or other protected matter’ or ‘subjects a person to
undue burden.’” Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 235 (D. Minn. 2013)
(quoting Fed. R. Civ. P. 45(c)(3)). Similarly, Rule 26 permits “[a] party or any person
from whom discovery is sought” to seek a protective order and provides that a court may,
“for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
“There may also be good cause for a protective order where the discovery sought from a
third party is not ‘proportional to the needs of the case, considering the importance of the
issues at state in the actions, 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.’” In Re CenturyLink Sales Pracs. & Sec. Litig., No. CV 18-296
(MJD/KMM), 2020 WL 8256364, at *2 (D. Minn. Oct. 28, 2020) (quoting Fed. R. Civ.
“The explicit mention of a party in [Rule 45] has been interpreted to provide
standing for a party to contest discovery sought from third-parties.” Coleman v.
Minneapolis Pub. Sch., No. 18-CV-2283 (DSD/ECW), 2020 WL 6042394, at *7 (D.
Minn. Oct. 13, 2020) (marks and citations omitted). The burden is on the movant to
show the “good cause” required for issuance of the protective order. See Gen. Dynamics
Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973). “To make this showing, the
moving party cannot rely on broad or conclusory allegations of harm.” Northbrook
Digit., LLC v. Vendio Servs., Inc., 625 F. Supp. 2d 728, 757 (D. Minn. 2008) (citing Gulf
Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981))
With these standards in mind, the Court will proceed with addressing the parties’
Laabs’ Motion for Protective Order 1
Laabs seeks a protective order forbidding discovery sought by Nor-Son through
two subpoenas issued to non-party Doran Companies (“Doran”) on March 11, 2021. 2
(See Dkt. 43.) Laabs had previously been employed by Doran and left employment with
Doran in October 2016. (Dkt. 47-1 at 94; Dkt. 53-1 at 120-29.) Laabs had been
employed by Doran for two to three years doing project supervision and commercial
building projects. (Dkt. 53-1 at 46.) With respect to why he left Doran, Laabs testified
Q. Okay. Why did you leave Doran?
A. I was kind of forced out of Doran.
Q. Okay. And what do you mean?
A. You know, they, a VP of construction didn’t like me and didn’t want me,
but I kind of had his number.
Nor-Son argues that Laabs did not properly meet-and-confer prior to bringing the
Motion for Protective Order. (Dkt. 62 at 7-8.) However, Nor-Son’s counsel conceded at
the hearing that no additional meet-and-confer other than what had already occurred
would help to resolve the issues in dispute. Therefore, the Court will not deny the
Motion for a Protective Order on this basis. See Berg v. United States, No. CV 03-4642
(MJD/JSM), 2005 WL 8162842, at *1 (D. Minn. Dec. 23, 2005).
The Court notes that Nor-Son has not received any objection from Doran to either
the duces tecum Subpoena or the deposition Subpoena. (Dkt. 62 at 4.)
Q. Okay. You had his number, tell me what you mean by that?
A. He wasn’t what he claimed to be.
Q. Okay. All right. So were you fired from Doran?
A. Yes, you know that.
Q. Okay. When you say yes, I know that, what do you, what are you saying,
are you saying that I somehow knew that you were fired from Doran?
A. I believe so.
Q. Okay. And how do I know that?
A. You, you’ve called my former employers, sir.
Q. And when you say you you mean, you’re referring to, are you referring to
Nor-Son, are you referring to us as lawyers?
A. I’m referring to, I’m referring to Kurt Erickson.
Q. Okay. All right. Okay. To your knowledge did Nor-Son know that you
had been fired from Doran?
A. I, I think that came up, I’m not positive.
Q. Okay. So it’s possible from your perspective that Nor-Son did not know
you were fired from Doran, correct?
A. Yeah, it’s also possible that they did know when I first started.
Q. So from your standpoint, both are possible?
(Dkt. 53-1 at 86-87.) As part of the end of his employment, Laabs entered into a
severance agreement with Doran.
Nor-Son’s subpoena for Doran’s corporate deposition seeks testimony regarding
the following topics:
1. The termination of the employment of Brian Laabs (“Laabs”), including
the date of termination, the reason for termination, whether Mr. Laabs ever
communicated that he was resigning, to whom he made such communication,
if any, and to whom he communicated such resignation, if he did.
2. The reasons for and dates of all discipline received by Mr. Laabs during
his employment with Doran, the type of discipline imposed (e.g., written
warning, suspension, termination of employment), whether the discipline
was changed or rescinded, and whether an internal investigative hearing was
held regarding his discipline.
3. Mr. Laabs [sic] dates of employment, job titles during employment, and
job duties and responsibilities for each position he held during his
employment with Doran.
4. Any complaints of discrimination Mr. Laabs made against Doran,
including but not limited to internal complaints and complaints filed with the
EEOC or any other federal or state agency; the date of such complaints; the
subject matter and allegations of such complaints; and the outcome of such
5. Any claimed medical restrictions or disabilities, accommodation requests,
or leave requests pertaining to Mr. Laabs, or any other instances where Mr.
Laabs claimed to be unable to perform his job duties.
(Dkt. 47-1 at 64.) Nor-Son also issued a subpoena for documents to Doran for the
Any and all documents and/or records regarding Brian Laabs, Social Security
No. XXX-XX-[XXXX], including but not limited to applications for
employment, documents and notes from interviews or meetings regarding
Mr. Laabs application for employment, hiring, or the interview process,
personnel files, manager files, investigatory files, human resource files, wage
records, benefit records, dates of employment and positions held (including
job descriptions), or independent contractor relationship, disciplinary
records, attendance records, benefit summaries, documents related to
termination or layoff (and the reasons for Mr. Laab’s [sic] selection for
termination or layoff), pay stubs, earning summaries, documents relating to
or reflecting upon job performance or work conduct, performance reviews,
evaluations, developmental plans, correspondence, notes, memoranda,
documents relating to charges or complaints of unfairness, retaliation, and/or
discrimination and investigatory records regarding same in your possession.
(Id. at 78.)
Laabs argues that the Court should quash the subpoenas on the basis that the
information sought is not relevant to the claims and defenses in this action. (Dkt. 45 at
10-15.) Specifically, Laabs argues that employment records and testimony from prior
employers are not relevant to the issue of mitigation, as mitigation focuses on a plaintiff’s
efforts to earn income after the defendant terminates him or her. (Id. at 13.) Further,
Laabs contends that the discovery sought is not applicable to the after-acquired evidence
defense based on the assertion that Laabs lied to Nor-Son during the hiring process by
misrepresenting the nature of his departure from Doran because: (1) Laabs testified in his
deposition that he did not know one way or the other whether he had told Nor-Son that he
was involuntarily terminated from his employment at Doran; Nor-Son hiring manager
Jacob testified that he could not remember whether he asked Laabs whether he had been
fired from a prior job, whether he asked Laabs whether he quit or resigned or was fired
from his job at Doran, or whether Laabs told Doran he resigned from Doran; (2) Jacob
further testified that, prior to hiring Laabs, he received and reviewed an Aerotek
reference check that plainly shows Laabs was involuntarily discharged; and (3) the
information is unnecessary since Laabs has already testified he was involuntarily
discharged from Doran due to a personality conflict with one of the managers. (Id. at 1314.)
The Eighth Circuit has recognized the after-acquired evidence doctrine as a
defense for employers with respect to limiting an employer’s potential damages:
The after-acquired evidence doctrine applies when an employee is fired for
an unlawful reason but the employer later learns of other conduct that, by
itself, would have resulted in discharge had it come to the employer’s
attention, and it limits the employee’s damages to the period of time “from
the date of the unlawful discharge to the date the new information was
discovered.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362
(1995). It is the employer’s burden to prove that it would have fired the
employee upon discovery of the evidence. E.E.O.C. v. Dial Corp., 469 F.3d
735, 745 (8th Cir. 2006). The employer must show “that the wrongdoing
was of such severity that the employee in fact would have been terminated
on those grounds alone if the employer had known of it.” McKennon, 513
U.S. at 362-63.
Smith v. AS Am., Inc., 829 F.3d 616, 625-26 (8th Cir. 2016).
That said, the Supreme Court has recognized the potential abuses that could result
based on the use of this doctrine by employers:
Where an employer seeks to rely upon after-acquired evidence of
wrongdoing, it must first establish that the wrongdoing was of such severity
that the employee in fact would have been terminated on those grounds alone
if the employer had known of it at the time of the discharge. The concern
that employers might as a routine matter undertake extensive discovery
into an employee’s background or performance on the job to resist
claims under the Act is not an insubstantial one, but we think the
authority of the courts to award attorney’s fees, mandated under the
statute, 29 U.S.C. §§ 216(b), 626(b), and to invoke the appropriate
provisions of the Federal Rules of Civil Procedure will deter most
See McKennon, 513 U.S. at 362-63 (emphasis added).
In this case, Nor-Son has asserted the affirmative defense of after-acquired
evidence. (Dkt. 5 at 12.) However, given the possibility of abuses with respect to the
after-acquired defense, as recognized by the Supreme Court in McKennon, the Court
finds that the mere invocation of the defense alone does not give rise to unfettered access
to past employment records. The Court notes that under Rule 26, one of the factors that
must be considered is the importance of the proposed discovery in resolving a dispute.
As one court has persuasively held:
The court must take into account “the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in
the litigation, and the importance of the proposed discovery in resolving the
issues.” The last factor is critical here. Best Lock has not identified any
specific concerns or targets or reasons for its sweeping and intrusive
discovery requests. It has not provided any information suggesting it
has a specific basis for believing that an after-acquired evidence defense
might be developed here. Thus, there is no specific reason before the court
suggesting that the discovery Best Lock seeks from plaintiff’s past, current,
and prospective employers would have any material importance for resolving
the issues presented in this case. On this record, therefore, the subpoenas
look like nothing more than a fishing expedition, or, more accurately, an
exercise in swamp-dredging and muck-raking.
Perry v. Best Lock Corp., No. IP 98-C-0936-H/G, 1999 WL 33494858, at *3 (S.D. Ind.
Jan. 21, 1999) (emphasis added).
As set forth above, Laabs points to his own testimony that he does not remember
whether he told Nor-Son that he was involuntarily terminated from his employment at
Doran. Indeed, Laabs testified that it was possible that Nor-Son knew that he had been
fired, but he was not sure. (Dkt. 47-1 at 23 (Laabs Dep. at 47).) Similarly, Nor-Son
hiring manager Jacob testified that he could not remember whether he asked Laabs
whether he had been fired from a prior job, whether he asked Laabs whether he quit or
resigned, if he was fired from his job at Doran, or whether Laabs told him he resigned
from Doran. (Id. at 87 (Jacobs Dep. at 56).) At most, this amounts to a dispute of fact
regarding Nor-Son’s knowledge and does not foreclose an after-acquired defense. While
Laabs claims that the Aerotek reference check done by Nor-Son plainly shows Laabs was
involuntarily discharged, it actually provides: “The reason for Brian leaving Doran is
because Doran lacked the contracts to keep him on board. He was one of the newer
Superintendents so they had to let him go. Would have loved to keep him onboard.” (Id.
at 88.) This actually supports the assertion that Nor-Son did not know that Laabs had
been terminated due a personality conflict as now claimed by Laabs. In sum, Laabs
opened the door to the after-acquired defense with his testimony regarding his
termination from Doran, and Nor-Son should be allowed to go directly to Doran to
determine the complete reason(s) for the termination of Laabs’ employment. The fact
that there may be a dispute as to the real reason regarding Laabs’ termination by Doran,
and Nor-Son’s knowledge thereof, is not a reason to quash the subpoena; it merely
establishes that these are issues for the fact-finder to decide.
Doran Deposition Subpoena
Given this backdrop, the Court concludes that with respect to the deposition
subpoena, Doran will be required to produce a witness who can testify as to Topic
No. 1, which relates to the termination of Laabs’ employment.
As to Topic No. 2, Doran will be required to provide testimony regarding
discipline of Laabs only to the extent that it is relevant to Topic No. 1. In other words,
Doran will only need to prepare a witness on discipline to the extent that it was at least
part of the basis for the termination of Laabs’ employment. The Court is not inclined to
allow Nor-Son to go “muck-racking” for more defenses regarding any discipline that did
not lead to the termination of Laabs’ employment.
There was no objection by Laabs as to Topic No. 3 in the moving papers or at the
hearing. As such, Doran shall be required to provide a witness that can competently
testify as to Topic No. 3.
Topic No. 4 seeks testimony regarding any complaints of discrimination made by
Laabs. In Sellars v. CRST Expedited, Inc., the court found that portions of prior
employment records were discoverable for the limited purpose of determining whether
the plaintiff had made similar complaints to previous employers. No. C15-0117, 2016
WL 7173785, at *4 (N.D. Iowa Dec. 8, 2016) (citation omitted); see also Bharadwaj v.
Mid Dakota Clinic, P.C., No. 1:16-CV-262, 2017 WL 11591196, at *8 (D.N.D. Mar. 9,
2017). As such, the Court will only require Doran to produce a witness to the extent that
Laabs made similar complaints as here related to the FMLA or disability discrimination.
Topic No. 5 seeks information related to Laabs’ claimed medical restrictions,
disabilities, or accommodation requests. Laabs asserts in his Complaint:
For years prior to being hired by Nor-Son, Laabs suffered from a physical
condition that caused significant pain in his knees. That condition
substantially and materially limited his ability to walk long distances and run,
and substantially limited the operation of his musculoskeletal system.
(Dkt. 1 ¶ 7.) Laabs also asserts that his knee condition was a qualifying disability for the
purposes of his ADA and MHRA claims. (Id. ¶¶ 33, 40.) In order to establish a prima
facie case of discrimination under the ADA, “an employee must show that she (1) is
disabled within the meaning of the ADA, (2) is a qualified individual under the ADA,
and (3) has suffered an adverse employment action because of her disability.” Hill v.
Walker, 737 F.3d 1209, 1216 (8th Cir. 2013); see also Weber v. Strippit, Inc., 186 F.3d
907, 912 n.4 (8th Cir. 1999) (“The MHRA defines a disability as an impairment that
‘materially,’ rather than ‘substantially’ limits one or more major activities, Minn. Stat.
§ 363.01, subd. 13,” but “[t]he difference is merely semantic . . . , and we treat the
standards the same.”). Given the relevance of Laabs’ allegation that his knee condition
was a qualifying disability that had previously existed to his disability discrimination
claim, the Court concludes that Nor-Son may ask Doran questions regarding any
restrictions or accommodations pertaining to Laabs’ knees. Nor-Son may not ask about
other medical conditions.
Subpoena Duces Tecum
Consistent with the above, Nor-Son can seek documents related to the date of
Laabs’ employment and positions held, including job descriptions; documents related to
termination of his employment, including documents relating to Laabs’ performance or
discipline only to the extent they pertain to the reasons for his termination; documents
reflecting any complaints of disability discrimination or FMLA violations, and requests
for accommodations or any other instances where Laabs claimed to be unable to perform
his job duties due to his knees. In addition, wage records should be produced given that
Laabs is seeking front pay. See Quiles v. Union Pac. R.R. Co., Inc., No. 8:16CV330,
2018 WL 737403, at *2 (D. Neb. Feb. 6, 2018).
Otherwise, the Motion for a Protective Order is granted because the information
sought by the subpoenas is not relevant or proportional to the needs of the case.
Nor-Son’s Motion to Compel
The Court turns to Nor-Son’s Motion to Compel, much of which overlaps with
Laabs’ Motion for Protective Order. Nor-Son asks the Court to compel responses to
Request Nos. 15 and 24, which generally seek information about Laabs’ employment
records from “past, present and prospective employers” (Dkt. 51 at 7-8), and Request No.
25, which seeks “[a]ny and all mental health records or reports, or invoices or bills
relating to medical treatment from all mental health care providers,” including, but not
limited to, “health care records regarding alcoholism and violence” (id. at 10). Nor-Son
also seeks further testimony from Laabs regarding a severance agreement. (Id. at 15-16.)
The Court addresses the parties’ arguments below.
Waiver of Objection as to Request Nos. 24-25 3
Nor-Son argues that this Court should find Laabs’ objections to Request Nos. 24
and 25 are waived because his responses to the discovery were served five days late. (Id.
at 8-9; see also Dkt. 53-1 at 113, 118.) Request No. 24 is an extension of Request No. 15
set forth below, and Request No. 25 is the request for mental health records also
addressed below. Given the short time frame (5 days late) and in the absence of any
articulated prejudice by Nor-Son, the Court finds good cause to allow Laabs to assert his
objections with no waiver. See U.S. Bank Nat’l Ass’n v. Equity Bank, No. CV 12-2023
(PAM/JJG), 2014 WL 12601036, at *4 (D. Minn. May 7, 2014) (finding good cause
where the delay related to objections was brief and the party seeking waiver failed to
propound any prejudice as the result of the untimeliness).
Nor-Son served the following request for documents for employment records
regarding Laabs’ past employers and any employers or prospective employers since
Laabs left Nor Son:
The Court notes that Nor-Son made the same argument as part of its opposition to
Laabs’ Motion for Protective Order. (Dkt. 62 at 6-7.)
REQUEST NO. 15. Copies of all of the Plaintiff’s employment records
from his past, present and prospective employers including, but not
limited to, applications, resumes, documents showing salaries, titles,
reasons for termination, supervisors, and all letters and
correspondence, including reference letters sent to employers and
prospective employers, from January 1, 2010 through the present time.
From January 1, 2010, through the present time, also provide copies of
any and all of Plaintiff’s applications and resumes to perform
consulting work or independent contracting work of any kind, and all
letters and correspondence, including reference letters, sent to persons
or entities considering hiring or who actually hired you as a consultant
or independent contractor. (Should Plaintiff not have copies of the
documents requested herein, a blank authorization form is attached.
All information necessary for Defendants to obtain said records is to
be completed by Plaintiff for all employers, prospective employers,
consulting or independent contracting work, or prospective consulting
or independent contacting work on separate authorization forms for
(Dkt. 53-1 at 11-12.)
Laabs issued the following response:
RESPONSE: Plaintiff objects to this request as overly broad, seeking
information that is neither relevant nor reasonably calculated to lead to
the discovery of admissible evidence, and propounded to harass and
annoy. Based on these objections, Plaintiff will not be producing
documents relating to any employment or similar activities prior to his
employment with Defendant and will not be providing authorizations
with respect to his prior employment, or with respect to prospective
employers following his unlawful termination. Records relating to any
subsequent employment will be limited to the categories of documents
set forth in Hendrickson v. Con-Way Freight, No. 13-cv-2354
(JRT/LIB), 2014 WL 12770229, at * 4-5 (D. Minn. Apr. 28, 2014).
Plaintiff further objects to this request as cumulative of Request No. 5.
Subject to and without waiving these objections, see the documents
that will be produced in response to Request No. 5.
(Dkt. 53-1 at 57-58.)
As part of its Motion to Compel, Nor-Son argues that it is entitled to an executed
authorization consistent with the information sought in Request No. 15. (Dkt. 51 at 11.)
The Court agrees that Nor-Son is entitled to Laabs’ past and post-termination wage
records, as they are relevant to Laabs’ claim for damages. See Walker v. Nw. Airlines
Corp., 2002 WL 32539635, at *2 (D. Minn. Oct. 28, 2002) (in employment
discrimination case, finding “both past and post-termination wage and employment
records are highly relevant to the issue of mitigation and to the computation of
damages”); see also Quiles, 2018 WL 737403, at *2.
Nor-Son’s primary focus is obtaining evidence of Laabs’ past employment records
regarding his performance at Doran and other construction employers for the purposes of
limiting damages pursuant to the after-acquired defense. (Dkt. 51 at 14-15.) However,
other than Doran, Nor-Son has proffered no evidence that Laabs misrepresented his
performance at past employers or the reasons his employment ended at employers
previous to Nor-Son. Given that admonishment by the Supreme Court in McKennon,
supra, the Court will not permit a fishing expedition that is not proportional to the needs
of the case with respect to any pre-Nor-Son employer, other than Doran, consistent with
this Court’s ruling on the subpoenas to Doran. See, supra, Section III.A. Given that
Doran is already covered by the Court’s ruling in the subpoenas, further relief with
respect to Doran is duplicative. As such, Nor-Son’s Motion to Compel with respect to
records from pre-Nor-Son employment dealing with Laabs’ performance, discipline, and
reasons for leaving employment is denied.
As it relates to an authorization for records regarding Laabs’ job search efforts
after Nor-Son terminated his employment, Laabs argues that he has produced all
documents in his possession relating to his job search efforts and that the information
sought is not relevant and is harassing, as every potential employer would be receiving
requests for documents from Nor-Son and would be notified of Laabs’ pending case
against Nor-Son. (Dkt. 59 at 20.) To the extent that Nor-Son seeks information through
Laabs’ post-Nor-Son employment applications that Laabs has not represented to
prospective employers that he was terminated for unlawful reasons, Laabs asserts that he
has testified that he has represented to prospective employers that he was laid off by NorSon without stating his belief that Nor-Son did so unlawfully. (Id.)
Laabs’ attempts to find employment after his termination are directly relevant to
his duty to mitigate, for which Nor-Son has the burden of proof. See Macgregor,
Mallinckrodt, Inc., No. 01-828, 2003 WL 23335194, at *4 (D. Minn. July 21, 2003), aff’d
sub nom. MacGregor v. Mallinckrodt, Inc., 373 F.3d 923 (8th Cir. 2004); see also
Jacobson v. Pitman-Moore, Inc., 582 F. Supp. 169, 178 (D. Minn. 1984) (noting that a
plaintiff must use “reasonable efforts to mitigate her damages” by searching for new
Thus, the information sought by Nor-Son to verify whether Laabs submitted
applications or resumes to prospective employers that Laabs has identified is relevant to
the claims and/or defenses in this case. Indeed, Laabs concedes that courts within this
District have found that applications for employment after a plaintiff’s departure from
defendant are relevant to the issue of mitigation of damages. (Dkt. 59 at 16-17.) For
example, in the disability discrimination case Holter v. Wells Fargo and Co., the Court
limited authorizations for records from employers as follows:
The Court will limit the authorization to records generated after her departure
from defendant as follows:
I, the undersigned, do hereby authorize you to release the following
documents and records you have regarding me to Ogletree, Deakins, Nash,
Smoak & Stewart, P.C., or any representative or agent thereof.
Application for employment; offer of employment; employment agreement;
documents reflecting my job performance including any achievements,
commendations, attendance, and discipline; any work accommodations
provided to me; reason(s) for my departure from employment; summary of
wages, salary or other compensation received by me; and summary of
benefits received by me . . . .
281 F.R.D. 340, 345-46 (D. Minn. 2011). Another court in this District concluded that
courts within this District have consistently found that defendants in employment
discrimination cases are entitled to discover records related to the plaintiff’s
compensation and benefits from employment after his or her termination as relevant to
the issue of mitigation of damages:
This is not the first time that this District has been presented with the
question of what a defendant in an employment discrimination suit is
allowed to discover from other businesses that have subsequently employed
the plaintiff. In fact, over the course of more than a decade, the Magistrate
Judges of this District have repeatedly held that defendants in various
employment discrimination cases are entitled to discover records related to
the plaintiff’s compensation and benefits from employment after his or her
termination by the defendant.
In the present case, and in accord with the aforementioned decisions, this
Court agrees that Plaintiff’s compensation and benefits information is
relevant to the issue of mitigation in the present case.
Hendrickson, 2014 WL 12770229, at *4 (internal citations omitted) (collecting cases).
Thus, the information sought by Nor-Son to verify whether Laabs submitted
applications or resumes to the prospective employers he identified is relevant to the
claims and/or defenses in this case and proportional to the needs of the case with respect
to the issue of damages. Any assertion by Laabs that he will be harmed because he may
not be hired by one of the prospective employers is far too speculative to prevent NorSon from verifying (or calling into question) his claims of mitigation. That said, Nor-Son
may only issue at this time an authorization to prospective employers identified by Laabs
that seeks Laabs’ applications and supporting materials, resumes, and any offers of
employment. 4 Further, any authorization shall not mention that the document requests
are for the purposes of ongoing litigation.
Mental Health Records
Laabs seeks damages for “emotional distress” under his ADA and MHRA claims.
(Dkt. 1 ¶¶ 36, 43.) In his answers to discovery, Laabs asserts that he:
[I]s seeking only “garden variety” emotional distress damages. He has
neither been diagnosed with, nor sought treatment for, mental health issues
before or after his termination, and does not assert in this litigation that he
has suffered any physical injury as a result of Defendant’s unlawful actions.
(Dkt. 53-1 at 38.)
Given Laabs’ request for emotional distress damages, Nor-Son also served him
with the following request for production of mental health records:
REQUEST NO. 25: Any and all mental health records or reports, or
invoices or bills relating to medical treatment from all mental health care
providers. This includes, but is not limited to, health care records regarding
alcoholism and violence. Copies of a blank authorization for you to complete
The Court notes that Laabs has represented that, outside of odd jobs performed, he
has not been employed since leaving Nor-Son. (Dkt.53-1 at 38-39.) To the extent that it
is discovered that an offer of employment was made, the Court would be inclined to
allow additional discovery.
RESPONSE: Plaintiff objects to this request as overly broad, unduly
burdensome, and seeking information that is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence. Plaintiff is
seeking only “garden variety” emotional distress, has never sought mental
health treatment, and does not claim he suffered any physical condition as a
result of his termination. Based on these objections, Plaintiff will not be
producing any responsive documents or providing the requested
authorizations. See, e.g., Womack v. Wells Fargo Bank, N.A., 275 F.R.D.
571, 572 (D. Minn. 2011) (plaintiff does not put medical records at issue by
merely claiming garden variety emotional distress); Dochniak v. Dominium
Mgmt. Services, CIV. 06-237JRTFLN, 2006 WL 3156539, at *1 (D. Minn.
July 26, 2006) (same), aff’d sub nom. Dochniak v. Dominium Mgmt.
Services, Inc., 240 F.R.D. 451 (D. Minn. 2006).
(Dkt. 53-1 at 117-18.)
Discoverability of medical records is governed by the relevancy standard of Rule
26 of the Federal Rules of Civil Procedure and not the “in controversy” standard required
for an independent medical examination under Rule 35 the Federal Rules of Civil
Procedure. See Sandoval v. American Bldg. Maint. Indus., Inc., 267 F.R.D. 257, 268-69
(D. Minn. 2007).
Pursuant to Minnesota law, the medical privilege can waived as follows:
If at any stage of an action a party voluntarily places in controversy
the physical, mental, or blood condition of that party, a decedent, or a
person under that party’s control, such party thereby waives any
privilege that party may have in that action regarding the testimony of
every person who has examined or may thereafter examine that party
or the person under that party’s control with respect to the same
physical, mental, or blood condition.
Minn. R. Civ. P. 35.03. This waiver, however, is limited by Minnesota Rule of Civil
Procedure 35.04, which provides only for disclosure of medical records related to the
condition at issue. See Minn. R. Civ. P. 35.04; see also In re Baycol Products Litig., 219
F.R.D. 468, 470 (D. Minn. 2003). “The policy underlying Rule 35.03 is the full
disclosure of all relevant medical evidence concerning plaintiff’s health when he
voluntarily puts his health in issue by bringing a lawsuit.” Wenninger v. Muesing, 240
N.W.2d 333, 336 (1976); see also Younggren v. Younggren, 556 N.W.2d 228, 233 (Minn.
Ct. App. 1996) (“A patient waives his physician-patient privilege if the patient puts his
physical or mental condition into controversy. Minn. R. Civ. P. 35.03. This waiver,
however, only allows the opposing party to obtain access to the patient’s medical records.
Minn. R. Civ. P. 35.04.”). Rule 35.03 is “also consistent with the concept that medical
privilege should exist as a shield, not a sword.” Minn. R. Civ. P. 35.03, advisory
committee’s note (1968).
The Minnesota Supreme Court has not directly ruled on whether a plaintiff
seeking garden-variety emotional distress damages places his mental health in
controversy for the purposes of Rule 35.03. However, this Court finds the Minnesota
Supreme Court’s decision in Navarre v. South Washington County Schools, 652 N.W.2d
9 (Minn. 2002), to be persuasive. In Navarre, the plaintiff was placed on leave by the
defendant due to complaints from teachers, students, and parents regarding her “teaching,
her treatment of students, and her ability to control her classroom.” Id. at 16. While on
leave, defendant’s assistant superintendent and superintendent gave several interviews to
the Pioneer Press and Kare 11 relating to the complaints about the plaintiff. Id. at 17-18.
Navarre subsequently brought suit against the defendant and alleged multiple violations
of the Minnesota Government Data Practices Act (“MGDPA”), along with claims for
negligent infliction of emotional distress and intentional infliction of emotional distress.
Id. at 18. The claims of negligent infliction and intentional infliction of emotional
distress were dismissed on summary judgment, and the matter proceeded to trial on the
plaintiff’s claims that the defendant had violated the MGDPA. At trial, Navarre sought
damages for emotional distress and damage to her reputation, but only she and her father
testified regarding her emotional distress, including her testimony that the impact of the
media coverage left her “very sad, very depressed, lonely, [and] isolated.” Id. Her father
testified that Navarre was “distraught and upset about the Pioneer Press article and Kare
11 news coverage.” Id. Navarre did not present any expert testimony pertaining to a
medical diagnosis of her condition. Id. Navarre was awarded $250,000 by the jury for
emotional distress. Id. at 21, 29. Along with concluding that violation of the MGDPA
afforded emotional distress damages, the Minnesota Supreme Court held:
Here, respondent failed to produce any verifiable medical or psychological
evidence to support her claim but did introduce evidence indicating that
appellant’s disclosure of information made her extremely upset and caused
her to be afraid to go out in public. While this evidence was conclusory and
not substantiated by any medical testimony, we affirm the court of appeals
and hold that the evidence was sufficient to allow respondent’s emotional
damage claim to be submitted to the jury. However, the district court did
not allow any impeachment of this testimony by cross-examination or
the introduction of the respondent’s prior medical and psychological
history. The district court committed error in this regard. We hold that
where a plaintiff seeks emotional damages under the MGDPA and puts
her emotional state at issue, the defendant should be allowed to
introduce probative evidence of the plaintiff’s preexisting condition,
treatment and prognosis, including expert testimony and/or medical
records, that is relevant to the plaintiff’s claim for emotional damages.
We agree with the court of appeals that it may have been within the
district court’s discretion to deny an independent medical examination
but that the denial appears to have been based in part on respondent’s
assertion that her existing medical records adequately documented her
emotional condition. However, these records were not received into
evidence, although offered. Accordingly, we affirm the court of appeals
and hold that the district court abused its discretion by not allowing
appellant to introduce evidence related to respondent’s preexisting
Id. at 31-32 (internal citation omitted) (emphasis added).
As one court in this District has concluded:
In short, while the parties did not label Navarre’s claims for emotional
distress as “garden-variety emotional distress,” certainly her proof suggested
that was what she was seeking, and the Minnesota Supreme Court found on
that record that she had put her emotional distress at issue in the case.
Further, the Court concluded that the trial court had committed error by not
allowing the defendant to explore other explanations provided in her medical
records for this alleged emotional distress.
Pursuant to Navarre, once a plaintiff has placed his emotional state at issue,
Wells Fargo is entitled to discover and introduce probative evidence of preexisting conditions, treatment and prognosis, including the introduction of
medical records relevant to the claim for emotional damages.
Njema v. Wells Fargo Bank, N.A., No. CV 13-519 (PJS/JSM), 2014 WL 12648466, at *46 (D. Minn. Nov. 4, 2014).
Here, there is no dispute that Laabs is seeking emotional distress damages under
the MHRA, as well as the ADA.
When making a privilege determination, a court uses federal common law
unless a relevant federal rule, statute, or constitutional provision applies.
Fed. R. Evid. 501. But where state law determines the decision in a civil
case, state law governs the privilege issue.
Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2014 WL 1309095, at
*5 (D. Minn. Apr. 1, 2014) (citations omitted).
Since the Minnesota Supreme Court has provided that a defendant has the right to
present evidence that calls into question a claim of emotional damages under a Minnesota
statutory cause of action (such as the MHRA), coupled with the possibility that Laabs has
been diagnosed with depression at some point (Dkt. 53 ¶ 3), even if it is only related to
his knee pain (Dkt. 60 ¶ 2), the Court finds that Nor-Son is entitled to medical documents
relating to Laabs’ mental health. The authorization proposed by Nor-Son contains no
time limitation for these mental health records. (See Dkt. 69-1.) Requiring Laabs to
reveal all records related to his mental health is not necessary for Nor-Son to adequately
make its defense. The basis for allowing these documents is to determine if there were
causes other than his termination that caused his emotional distress. As such, allowing
Nor-Son access to records five years prior to the end of Laabs’ employment on October
25, 2019 through the present is sufficient. See, e.g., Bates v. Delmar Gardens N., Inc.,
No. 4:15-CV-00783-AGF, 2016 WL 3543046, at *5 (E.D. Mo. June 29, 2016) (“The
Court agrees with Plaintiff that requiring Plaintiff to reveal eleven years’ medical records
is not necessary for Defendants to adequately make their defense. Therefore, the Court
will limit the discovery of Plaintiff’s medical information and records to five years
preceding the alleged discriminatory conduct at issue.”) (listing cases); Lewis v. TempAir, Inc., No. 4:14-CV-398 CDP, 2014 WL 5432122, at *2 (E.D. Mo. Oct. 27, 2014)
(allowing for mental health records for three years prior to termination of employment);
Jensen v. Astrazeneca LP., No. CIV.02-4844 JRT/FLN, 2004 WL 2066837, at *4 (D.
Minn. Aug. 30, 2004) (rejecting an authorization with no time limit and instead allowing
for over six years of documents). Anything further is not proportional to the needs of the
case and borders on harassment.
Moreover, Nor-Son’s proposed authorization is not limited to mental health
records and could encompass every ailment suffered by Laabs regardless of the relevancy
to this case. As such, the authorization must be limited to records pertaining to mental
health treatment, including to the extent that it pertains to treatment for chemical
dependency by a medical provider.
Deposition Regarding Doran Separation Agreement
Nor-Son complains that Laabs was improperly instructed during his deposition by
his attorney not to answer questions regarding a separation agreement between him and
Doran. (Dkt. 51 at 15-16.) Indeed, during his deposition, counsel instructed Laabs not to
answer questions related to the substance of a severance agreement based on the
likelihood of a confidentiality clause:
Q. Okay. Did you, were you given a severance agreement as part of leaving
Q. Okay. And did you sign the severance agreement?
A. I would assume so, yes.
Q. Okay. Do you remember how much severance you were given?
MR. REDDEN: I’m going to object on the basis that he is likely under a
contract that has confidentiality as to the terms. And I’m confused as to the
relevance to the case. If there is a Court Order then he should –
MR. ERICKSON: Well, then we’re going to go, we’re going to go to the
judge and we’re going to ask for fees because there’s no privilege that’s been
raised here and we specifically asked for these documents in discovery and
you’ve withheld those documents.
Q. You can go ahead and answer the question, sir.
MR. REDDEN: No, I’m instructing him not to answer.
MR. ERICKSON: Okay, we’re going to go to the judge, we’re going to go
to the judge and we’re going to seek fees.
MR. REDDEN: Do you want to do that now?
MR. ERICKSON: I’ll do it at the appropriate time from my standpoint, sir.
(Dkt. 53-1 at 88-89.)
Ultimately, the Separation Agreement and Release of Claims (“Separation
Agreement”) was produced, and it was discovered that the agreement did not contain a
confidentiality provision. (See Dkt. 53-1 at 120-29.) Nor-Son demands that Laabs be redeposed with respect to the Separation Agreement and that it be awarded attorney’s fees
because Laabs refused to answer on the grounds of a factually baseless objection. (Dkt.
51 at 16.)
While the Court does not countenance Laabs’ counsel’s instruction not to answer
questions with respect to the Separation Agreement, especially given the Protective Order
in this case (Dkt. 38), this issue could have been easily resolved with a call to the Court
using the informal resolution process (Dkt. 34 at 7) during the deposition, which Nor-Son
refused to do (Dkt. 53-1 at 89). As such, the Motion to Compel is granted insofar as the
Court will permit Nor-Son to depose Laabs again. However, Nor-Son will be allowed to
ask questions to Laabs only relating the Separation Agreement, as it is relevant to the
after-acquired evidence defense. This deposition should not serve a basis to ask
additional questions to Laabs regarding Doran unrelated to the Separation Agreement.
Moreover, the Court will not award fees to Nor-Son because the need for a second
deposition and consequent attorney’s fees are in part self-inflicted.
Plaintiff’s Motion for Protective Order (Dkt. 43) is GRANTED in part
and DENIED in part consistent with this decision.
Defendant’s Motion to Compel (Dkt. 49) is GRANTED in part and
DENIED in part consistent with this decision.
To the extent that the parties cannot agree on the language of the
authorizations as outlined by the Court in this Order, the parties shall file their respective
proposals along with a supporting letter (no longer than three pages) with the Court on or
before May 11, 2021 so that the Court can issue final authorizations. The parties shall
also send a Word version of their proposed authorizations to
Magistrate_Wright_Chambers @mnd.uscourts.gov. The Court strongly encourages the
parties to resolve any disputes regarding the authorizations without the need for Court
Dated: April 26, 2021
s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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