Equal Employment Opportunity Commission v. Windmill International, Inc.
ORDER denying 12 Motion for Protective Order. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Equal Employment Opportunity
Civil No. 11-cv-454-SM
Windmill International, Inc.
O R D E R
On behalf of charging party Nancy Hajjar, the Equal
Employment Opportunity Commission (“EEOC”) has sued Windmill
International, Inc. (“Windmill”) for violating Hajjar’s rights
under Title I of the Americans with Disabilities Act of 1990 and
Title I of the Civil Rights Act of 1991.
Before the court is
the EEOC’s motion for a protective order, pursuant to Rule 26(c)
of the Federal Rules of Civil Procedure (“Federal Rules”), that
would forbid Windmill from enforcing a subpoena duces tecum it
served on Hajjar.
In the alternative, the EEOC moves to quash
the subpoena, pursuant to Rule 45(c)(3).
the reasons that follow, the EEOC’s motion is denied.
Hajjar complained to the EEOC about Windmill’s decision to
terminate her employment, alleging that she was discharged
because of an actual or perceived impairment of her circulatory
or cardiovascular system.
On Hajjar’s behalf, the EEOC sued
Hajjar has not intervened and, as a result, is not a
party to this suit.
The EEOC and Windmill are subject to a protective order
that, among other things, provides that “[f]or purposes of this
action, documents within the possession, custody or control of
Charging Party Nancy Hajjar shall be deemed to be within the
possession, custody, or control of the EEOC, [and that] the
EEOC’s obligation to respond to discovery requests shall extend
to such documents.”
Stip. & Prot. Order (doc. no. 11) ¶ 11.
In June of 2012, Windmill served Hajjar with a subpoena
duces tecum in which it sought eleven categories of documents.
For example, Windmill asked Hajjar to
produce any and all documents which in any way
relate[d] to [her] attempt(s) to find work or
otherwise mitigate [her] alleged damages from April
12, 2010 to the present,
Pl.’s Mot. for Prot. Order, Ex. A (doc. no. 12-1), at 4.
also asked her to
produce any documents related to any communication
between [her] and Defendant Windmill International or
Defendant’s agents or employees from June 2008, to the
present. (Defendant does not seek production of
communications between [Hajjar] and the EEOC’s counsel
of record in this matter),
The eleven categories of documents Windmill seeks from
Hajjar are, generally, a subset of the documents listed in a
request for production propounded by Windmill on the EEOC in
March of 2012.1
The EEOC produced some of the requested
documents, but also objected to portions of Windmill’s request.
The EEOC now moves for a protective order that either
forbids enforcement of the subpoena Windmill served on Hajjar or
The EEOC argues that the subpoena is unduly
burdensome because it demands documents from Hajjar that it, the
EEOC, has already provided to Windmill in response to its
request for production.
It further argues that the documents
Windmill seeks by subpoena are duplicative of the documents it
has already produced.
In the EEOC’s view, “the stated purpose
of the Subpoena is to bypass the EEOC and put Hajjar,
Essentially foreshadowing the demands stated in the
subsequent subpoena, Windmill asked the EEOC to produce, among
any and all documents which in any way relate[d] to
Hajjar’s attempt(s) to find work or otherwise mitigate
her alleged damages from April 12, 2010 to the
Pl.’s Mot. for Prot. Order, Ex. B (doc. no. 12-2), at 6.
also asked the EEOC to produce
any documents related to any communication between
Hajjar and Defendant or Defendant’s agents or
id. at 7.
personally, to the trouble of articulating and perhaps
litigating objections, rather than meeting and conferring with
the EEOC to attempt to resolve any disputes on the merits.”
Pl.’s Mot. for Prot. Order (doc. no. 12), at 3.2
objects, arguing that: (1) the EEOC lacks standing to bring a
motion to quash a subpoena served on Hajjar, who is a non-party
to this action; (2) the fact that the EEOC has already produced
the documents demanded by the subpoena does not prevent it,
i.e., Windmill, from seeking those same documents from Hajjar;
and (3) the EEOC’s claim that the subpoena imposes an undue
burden on Hajjar is entirely unsupported.
The EEOC replies,
arguing that: (1) it has standing to move to quash, under Rule
45(c)(3); (2) even if it lacks standing to file a motion under
Rule 45(c)(3), it has standing, as a party, to move for a
protective order under Rule 26(c); and (3) the subpoena at issue
runs afoul of the limits on discovery imposed by Rule
The Federal Rules provide that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense . . . .”
Fed. R. Civ. P. 26(b)(1).
Stated another way, the EEOC’s argument is that “the
Subpoena is unlikely to yield any benefit other than
circumventing the normal process of resolving discovery disputes
among parties.” Pl.’s Mot. for Prot. Order, at 5-6.
On motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by
these rules or by local rule if it determines that:
(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
Fed. R. Civ. P. 26(b)(2)(C).
[a] party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending . . . . The court may, for good
cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the
(A) forbidding the disclosure or discovery.
Fed. R. Civ. P. 26(c)(1).
Rule 45, which deals specifically
with subpoenas, provides in pertinent part:
On timely motion, the issuing court must quash or
modify a subpoena that:
. . . .
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(c)(3).
Ordinarily, the court would begin with Windmill’s argument
that the EEOC lacks standing to move to quash a subpoena served
on Hajjar, due to Hajjar’s status as a non-party.
indeed, a fair amount of case law on the question of the EEOC’s
standing to challenge subpoenas served on non-parties in cases
it has brought on their behalves.
And, the parties appear to
have uncovered much of that case law.
But, notwithstanding the
EEOC’s assertion that “courts generally recognize that the EEOC
has standing to move to quash a subpoena directed to the
charging party,”3 Pl.’s Reply (doc. no. 19), at 4, only one of
the cases on EEOC standing cited in the parties’ briefs involved
a non-party to an EEOC enforcement action, such as Hajjar, who
was also an EEOC charging party.
Rather, the non-parties in
those cases were entities such as educational institutions
charging parties had attended, see, e.g., EEOC v. Danka Indus.,
Inc., 990 F. Supp. 1138, 1141 (E.D. Mo. 1997), subsequent
employers of charging parties, see, e.g., EEOC v. Serramonte,
237 F.R.D. 220, 222 (N.D. Cal. 2006), those who had provided
For that proposition, the EEOC relies on two cases in
which the subpoenas at issue were not directed to charging
parties. See EEOC v. 704 HTL Operating, LLC, Civ. No. 11-845
BB/LFG, 2012 WL 1216142, at *1 (D.N.M. Apr. 3, 2012) (defendant
directed subpoena to charity that had provided services to
charging party); EEOC v. Orig. Honeybaked Ham Co. of Ga., Inc.,
No. 11-cv-02560-MSK-MEH, 2012 WL 934312, at * (D. Colo. Mar. 19,
2012) (defendant directed subpoenas to prior and subsequent
employers of charging parties).
health care to charging parties, see, e.g., id., or other
persons who possessed confidential information about charging
Moreover, in the one case involving a subpoena served
on a non-intervening charging party, EEOC v. Premier Well
Services, LLC, the court assumed with deciding that “the EEOC
[had] standing to request that the subpoena on [the charging
party] be quashed,” No 4:10cv1419 SWW, 2011 WL 2198285, at *1
(E.D. Ark. June 3, 2011) (citations omitted), but denied the
motion to quash on the merits, see id. at *1-2.
In short, neither party’s brief cites any opinion in which
a court has decided the legal question that is central to
Windmill’s standing argument, i.e., whether the EEOC has
standing to move to challenge a subpoena served on a nonintervening charging party.
The court’s own research on this
point has been similarly fruitless.
Rather than attempting to
blaze a new trail through an interesting but complex area of the
law, this court, like Judge Wright in Premier Well, will simply
assume that the EEOC has standing to move for the relief it
The EEOC’s basic argument is that, pursuant to Rule
26(c)(1)(A), Windmill should be forbidden from enforcing the
subpoena it served on Hajjar because production of the documents
demanded by the subpoena would impose an undue burden on her.
In the alternative, it argues that the subpoena must be quashed,
pursuant to Rule 45(c)(3)(A) for the same reason.
But, the EEOC
also says that it has already solicited from Hajjar the same
documents Windmill seeks from her.
If the EEOC has put Hajjar
to the trouble of assembling the documents Windmill has
subpoenaed, it is difficult to see how the subpoena imposes much
of a burden on Hajjar.
For its part, the EEOC offers neither
evidence nor argument to show any particular burden on Hajjar,
much less an undue burden.
To be sure, it will require some
effort from Hajjar to produce the documents Windmill seeks, but
it is worth bearing in mind that the purpose of this case is to
litigate Hajjar’s claims against Windmill.
In any event, Rule
26(c)(1) does not entitle the EEOC to an order forbidding
Windmill from enforcing its subpoena on Hajjar, and Rule
45(c)(3)(A) does not entitle the EEOC to an order quashing the
The EEOC also argues that Windmill’s subpoena constitutes
unreasonably cumulative or duplicative discovery within the
meaning of Rule 26(b)(2)(C)(i).
Under that rule, “the court
must limit the frequency or extent of discovery . . . if it
determines that: (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
Fed. R. Civ. P. 26(b)(1)(C).
is not unreasonably cumulative or duplicative of the requests
for production that Windmill served on the EEOC.
Wright explained in Premier Well:
“There is no absolute rule prohibiting a party from
seeking to obtain the same documents from a non-party
as can be obtained from a party, nor is there an
absolute rule providing that the party must first seek
those documents from an opposing party before seeking
them from a non-party.” [Coffeyville Res. Ref. &
Mktg., LLC v. Liberty Surplus Ins. Co., No.
4:08MC00017 JLH,] 2008 WL 4853620[,] at *2 [(E.D. Ark.
Nov. 6, 2008)]. “In many cases, it is important to
obtain what should be the same documents from two
different sources because tell-tale differences may
appear between them; and in many cases when a party
obtains what should be the same set of documents from
two different sources a critical fact in the
litigation turns out to be that one set omitted a
document that was in the other set.” Id.
2011 WL 2198285, at *1; cf. EEOC v. Dolgencorp, LLC, No.
1:09CV700, 2011 WL 1260241, at *15 (M.D.N.C. Mar. 31, 2011)
(declining to find that discovery requests directed toward EEOC
were propounded for an improper purpose, even though defendant
had previously served charging parties with subpoenas seeking
the same information).
Judge Wright’s reasoning in Premier Well
There is another way to look at this issue that also favors
The EEOC’s entire argument rests on its
having solicited documents from Hajjar and having submitted some
of those documents to Windmill.
But, the EEOC has identified
nothing about the subpoena that would have run afoul of Rule
26(b)(2)(C)(i) if Hajjar had intervened in the case and had been
served with a request for production seeking the same documents
demanded by the subpoena.
Moreover, in such a circumstance,
Hajjar could not have successfully resisted a request for
production by arguing that she should not have to produce
documents to Windmill because she had already produced them to
the EEOC during the course of its investigation of her claim.
For its part, the EEOC has given no good reason why Hajjar’s
decision not to intervene should have the result of placing
Windmill at its mercy with respect to obtaining documents from
the person whose claims the EEOC is litigating and who will
benefit should the EEOC happen to prevail in this action.
Finally, the EEOC appears to argue that the subpoena
Windmill served on Hajjar somehow goes against the letter or the
spirit of the protective order in this case.
It does not.
Paragraph 11 of the protective order certainly allows Windmill
to seek Hajjar’s documents from the EEOC, and obligates the EEOC
to produce those documents if requested.
But, that paragraph
does not preclude Windmill from seeking documents from Hajjar,
nor does it protect her from producing them.
For the reasons explained above, the EEOC’s motion for a
protective order, document no. 12, is denied.
United States Magistrate Judge
August 20, 2012
Peter Bennett, Esq.
Frederick B. Finberg, Esq.
Elizabeth A. Grossman, Esq.
Justin Mulaire, Esq.
Robert D. Rose, Esq.
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