Brown v. West Corporation

Filing 215

MEMORANDUM AND PROTECTIVE ORDER denying 206 Motion to Quash Subpoena. Neither party to the present litigation shall inquire of Aegis as to the motivation for Brown's termination from Aegis. Depositions of and document requests to Aegis by th e parties shall be limited to the issue of Brown's individual performance and efforts to maintain employment, except that the parties may inquire as to any assertions by Brown that Aegis is responsible for certain periods of front pay. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
REX BROWN,

)
)
Plaintiff,
)
)
v.
)
)
WEST CORPORATION, a Delaware )
corporation,
)
)
Defendant.
)
______________________________)

8:11CV284

MEMORANDUM AND
PROTECTIVE ORDER

This matter is before the Court on the motion of Aegis
USA (“Aegis), a non-party, to quash the subpoena issued by
plaintiff Rex Brown (“Brown”) and for the issuance of a
protective order (Filing No. 206).

The Court notes that by

stipulation of the parties, the motion was transferred to this
Court from the Northern District of the United States District
Court of Texas (Filing No. 208).
I. Procedural History
On December 27, 2013, defendant West Corporation
(“West”) filed a notice with this Court regarding its intention
to depose Aegis, plaintiff’s subsequent employer (Filing No.
162).

Plaintiff filed a motion for a protective order in the

limited capacity available to an adverse party that wishes to
limit a subpoena served on a third-party (Filing No. 166).

See,

Streck, Inc. v. Research & Diagnostic Sys., Inc., No. 8:06CV458,

2009 WL 1562851, at *3 (D. Neb. June 1, 2009) (“[A] party has
standing to object to a third-party subpoena on grounds of
relevance or to protect a personal right or privilege in the
information requested.”).

Plaintiff’s brief explicitly warned

that allowing West’s requested discovery would necessitate
additional discovery by Brown regarding “the propriety of
Brown’s/Aegis’ actions during his employment at Aegis and the
reason for his termination.”

Plaintiff’s Brief in Support of

Plaintiff’s Motion for Protective Order, Filing No. 167, at 13.
The Court granted the motion for a protective order on
certain issues which the Court found irrelevant to the
defendant’s mitigation of damages defense but otherwise denied
the motion.

Brown v. West, 8:11CV284, Filing No. 183.

Most

significantly, the Court found that “West’s mitigation of damages
defense is inextricably linked to Brown’s performance at Aegis
and the reason for his termination.” Id. at 2.

As a result,

defendants were left unhindered in their pursuit of deposition
testimony and documents from Aegis regarding Brown’s wages and
compensation at Aegis, circumstances surrounding Brown’s
termination from Aegis, opportunities provided to Brown to
correct performance deficiencies, and communications between
Aegis and Brown’s counsel.

In addition, the Court did not

disturb West’s request for documents from Aegis which included
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charges of discrimination filed by Brown against Aegis, sworn
statements by Brown, a demand letter from Brown to Aegis
regarding his Title VII and section 1981 claims, and written
communications from counsel for Brown regarding the claims
against Aegis.
Despite the explicit request to Aegis for discovery on
Brown’s charges against Aegis and plaintiff’s warnings that he
too would pursue discovery on those issues if West was allowed to
initiate such discovery, Aegis did not file any motions for a
protective order or motions to quash on its own behalf.

Seeking

to rebut the expected testimony from Aegis that Brown was fired
due to poor performance, Brown also served a subpoena on Aegis
regarding the reasons for his termination.

However, Brown’s

alternative theory that his termination was the result of
discrimination by Aegis expanded the scope of the inquiry to
include all the evidence that Brown might use to prove his case
in a discrimination suit against Aegis.

In fact, Brown has filed

a complaint with the Nebraska Equal Opportunity Commission
against Aegis charging discrimination in connection to his
termination.
II. Legal Standards
“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or
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defense.”

Relevant information need not be admissible at the

trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.”

Fed. R. Civ. P. 26(b)(1).

The Court is directed to limit discovery where
(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained
from some other source that is more
convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had
ample opportunity to obtain the information
by discovery in the action; or
(iii) the burden or expense of the proposed
discovery outweighs its likely benefit,
considering the needs of the case, the amount
in controversy, the parties' resources, the
importance of the issues at stake in the
action, and the importance of the discovery
in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C).

In addition, the Court

must “quash or modify a subpoena that . . . subjects a person to
undue burden.”

Fed. R. Civ. P. 45(d)(3)(A)(iv).

Factors

considered in determining whether a subpoena presents an undue
burden include:
(1) the relevance of the requested
information; (2) the need of the party for
the information; (3) the breadth of the
request; (4) the time period covered by the
request; (5) the particularity with which the
party describes the requested information;
and (6) the burden imposed.

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Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir.
2004).

“Further, if the person to whom the document request is

made is a non-party, the court may also consider the expense and
inconvenience to the non-party.”

E3 Biofuels, LLC v. Biothane

Corp., 8:12CV441, 2013 WL 1295211 (D. Neb. Mar. 27, 2013).
III. Discussion
Aegis requests that the Court quash the subpoena served
by Brown covering, albeit more expansively, the same topics
requested by West -- most notably, the reason for Brown’s
termination.

Having acquiesced to the subpoena by West, Aegis

asks the Court to institute a scheme of asymmetrical discovery by
quashing Brown’s subpoena covering the same issues.

Still,

forcing Aegis to submit to depositions by Brown and West on
matters central to an imminent lawsuit between Brown and Aegis
presents a significant burden.

In addition, the degree of

increased precision to estimates of front pay is a benefit
outweighed by the cost and burden of permitting discovery on
whether Aegis’ decision to terminate Brown was discriminatory;
such incremental gains are out of proportion to the vast
expansion of discovery that would be required.

The Court must

therefore balance the relevance of the information requested by
both parties, including Brown’s need to counter West’s mitigation
defense, on the one hand, against the burden to Aegis and the
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plaintiff himself,1 on the other -- keeping in mind that Aegis
has already acquiesced to the topics presented in the West
subpoena.
West’s subpoena sought two distinct sets of information
and for two distinct purposes.

The Court’s denial of plaintiff’s

protective order was premised on the relevance of these narrow
inquiries, and the present motion calls for similar analysis.
Because this order will affect not only the scope of plaintiff’s
deposition but also further limits the scope of defendant’s
deposition, the Court frames its analysis on the same two
relevance issues regarding mitigation of damages.
A. Duty to Mitigate
First, West sought discovery on Brown’s performance at
Aegis as generally relevant to West’s mitigation defense.
included Aegis’ reasons for Brown’s termination.

This

The Court

stated that “West’s mitigation of damages defense is inextricably
linked to Brown’s performance at Aegis and the reason for his

1

The movant’s burden is not typically relevant to the
balancing of burdens in a discovery dispute. Here, however, the
plaintiff-movant continues to object to the entire line of
inquiry which was originally broached by the defendant without
objection by Aegis. To the extent that Aegis’ motion to quash
plaintiff’s subpoena forces the Court to revisit its prior ruling
against the plaintiff’s motion for a protective order, the
plaintiff’s burden in pursuing this line of discovery is also
important to the Court’s balancing.
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termination” and largely denied plaintiff’s request for a
limitation on those issues.
183, at *2.

Brown v. West, 8:11CV284, Filing No.

The Court now clarifies and refines its previous

order in light of the complications introduced by Aegis’ thirdparty motion.
West’s interest in deposing Aegis regarding the reasons
for Brown’s termination stem from Brown’s obligation “to mitigate
damages by exercising reasonable diligence to . . . maintain a
suitable job once it is located.”

E.E.O.C. v. Delight Wholesale

Co., 973 F.2d 664, 670 (8th Cir. 1992).

Though Brown’s

performance at Aegis might well be connected to his termination,
the fact of Brown’s termination is uncontested.

Therefore,

West’s mitigation defense need only focus on the core issue of
whether Brown exercised reasonable diligence to maintain his
employment -- Aegis’ motivation for the termination is not as
precisely relevant.

To avoid undue burden on Aegis and retain a

proportionality between the general burden of discovery and the
incremental benefits of such discovery, the Court will, in regard
to Brown’s duty to mitigate, allow both parties to inquire into
Brown’s performance at Aegis but not the motivation for the
decision to proceed with termination.

Relevant to Brown’s

efforts to maintain employment are Brown’s duties, efforts toward
satisfaction of those duties, and to what degree Brown took
advantage of any opportunities to correct deficiencies identified
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by Aegis.

Comparators, Aegis’ employment policies, appraisals of

Aegis’ competitive positioning, and the charges by Brown against
Aegis are discrimination issues irrelevant to Brown’s individual
efforts.
The second narrow inquiry addressed in the previous
order requires a small foray into Brown’s discrimination suit
against Aegis.

Defendant is concerned that Brown has attributed

a period of lost wages to discrimination by Aegis that Brown
continues to attribute to West in the present litigation.
Certainly, the lost wages cannot be attributed to both employers;
or, at least, Brown should not be permitted to recover from both.
See Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th
Cir. 1993) (holding that front pay calculations must “attempt to
make the plaintiff whole, yet . . . must avoid granting the
plaintiff a windfall”).

Brown’s attribution of responsibility

is relevant to the front pay determination this Court must make
in the event that Brown receives a favorable verdict.

See

Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 642-43 (8th Cir.
1997) (holding that both the awarding of and amount of front pay
is an equitable issue for the court).

However, evidence as to

whether or not Aegis actually discriminated is less relevant.
Again, the Court will allow both parties’ inquiry into Brown’s

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attributions of responsibility for front pay but not the merits
of the underlying discrimination charge.

Accordingly,

IT IS ORDERED:
1) Aegis’ motion to quash plaintiff’s subpoena is
denied.
2) Neither party to the present litigation shall
inquire of Aegis as to the motivation for Brown’s termination
from Aegis.
3) Depositions of and document requests to Aegis by the
parties shall be limited to the issue of Brown’s individual
performance and efforts to maintain employment, except that the
parties may inquire as to any assertions by Brown that Aegis is
responsible for certain periods of front pay.
DATED this 17th day of March, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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