Lev v. South Nassau Communities Hospital et al

Filing 24

ORDER granting 22 : See attached motion for details. Ordered by Magistrate Judge Arlene R. Lindsay on 8/18/2011. c/ecf (Johnston, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SUSAN LEV,
Plaintiff,

ORDER
CV 10-5435 (JS)(ARL)

-againstSOUTH NASSAU COMMUNITIES HOSPITAL,
et al.,
Defendants.
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LINDSAY, Magistrate Judge:
Before the court is the plaintiff’s motion to quash the subpoenas served on four (4) nonparty former employers of plaintiff. The subpoenas seek (1) resume(s) or job applications
submitted by Susan M. Lev; (2) documents regarding work place discipline imposed on Susan
M. Lev for work related conduct; and (3) documents related to internal or external complaints of
sex or national origin discrimination lodged by Susan M. Lev. The plaintiff contends that the
subpoenas seek disclosure of confidential information that is not relevant to the instant action.
The defendants argue that the information being sought is relevant to plaintiff’s employment
discrimination claims (1) to assist defendants in evaluating an after-acquired evidence defense;
and (2) to show plaintiff’s credibility, state of mind, motive and modus operandi.
“A party ordinarily lacks standing to challenge a non-party subpoena with a motion . . .
to quash unless the party is seeking to protect a personal privilege or right. See Malmberg v.
United States, 2010 U.S. Dist. LEXIS 28784 *3 (N.D.N.Y. Mar. 24, 2010). Here, the plaintiff
has a privacy interest with respect to information contained in her employment records, and thus,
can challenge the subpoenas.1 Cf. Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y. 2010);
Chamberlin v. Farmington Savings Bank, No. 3:06 CV 01437 (CFD), 2007 WL 2786421, at *1
(D. Conn. Sept. 25, 2007); Gambale v. Deutsche Bank, Ag, No. 02 Civ. 4791 HBDFE, 2003 WL
115221, at *1 (S.D.N.Y. Jan. 10, 2003). Accordingly, the court will turn to the issue of whether
the information being sought is relevant to the claims and defenses in this employment
discrimination action, and if relevant, weigh defendants’ right to obtain that discovery against the
burden imposed on plaintiff. See Warnke, 265 F.R.D. at 67-68.
First, defendants’ claim that they are entitled to plaintiff’s prior employment records
because the records may contain information relevant to an after-acquired evidence defense is
1

To the extent defendants rely on the waiver of plaintiff’s privacy interest based on her
authorization in her employment application with defendant Hospital to release prior
employment information, in the absence of case law suggesting that such a waiver survives the
termination of her employment with defendant Hospital, this does not provide a basis for
disclosure.

unavailing. In McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995), the Supreme
Court provided that an employee’s relief can be limited by evidence of wrong-doing discovered
after termination that would have provided a legitimate basis for such termination. Id. at 362.
That said, the Court noted the potential for abuse by employers seeking to limit their liability
through this defense in the discovery process, but stated nonetheless that “[t]he 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 invoke the appropriate provisions of the Federal
Rules of Civil Procedure will deter most abuses.” Id. at 363. Here, defendants have not
provided the court with any evidence of prior wrongdoing during plaintiff’s tenure at the Hospital
nor have they suggested that plaintiff misrepresented information to defendants which might
have provided legitimate grounds for her termination. To the contrary, defendants seek discovery
of the prior employment records in order to search for information from which to ascertain
whether or not to assert the defense. Such speculation without more fails to substantiate such a
broad search of plaintiff’s records on this ground. See Chamberlin, 2007 WL 2786421, at *3
(holding “defendant cannot use after-acquired evidence defense to conduct extensive discovery
into the plaintiff’s prior employment records on the basis of pure speculation. Under such
circumstances, production of plaintiff’s records would constitute an unwarranted intrusion”).
Moreover, defendants claim that the information contained in plaintiff’s prior
employment records is relevant to plaintiff’s credibility likewise fails. As stated above,
defendants have not alleged nor provided any evidence that plaintiff has misrepresented
information during the course of this action with respect to her previous employment to warrant
production of these records. Further, defendants request for the production of plaintiff’s prior
employment records to show plaintiff’s state of mind, motive and/or modus operandi is not
reasonably calculated to lead to the discovery of admissible evidence. Evidence of plaintiff’s
propensity to act in a certain manner is inadmissible under Fed. R. Civ. P. 404(a), which provides
in relevant part, “[e]vidence of a person’s character or trait of character is not admissible for the
purpose of proving action in conformity therewith.” Finally, the court notes that this action is at
its inception; no discovery has been exchanged nor have any depositions been conducted. Given
that the discovery information set forth in the subpoenas is overbroad, would subject the plaintiff
to unwarranted intrusion and is not reasonable calculated to lead to the discovery of admissible
evidence, plaintiff’s motion to quash the subpoenas is granted.
Dated: Central Islip, New York
August 18, 2011

SO ORDERED:

__________/s________________
ARLENE R. LINDSAY
United States Magistrate Judge