Richardson v. Huber Heights City Schools Board of Education et al

Filing 165

ORDER granting 131 Defendants' Motion to Enforce Subpoena to Frisch's Big Boy; ordering Defendants to prepare suboena and submit it to Clerk of Court; ordering the Clerk of Court to forward subpeona to U.S. Marshal; ordering U.S. Marshal to serve Frish's Big Boy within reasonable time before March 3, 2015; and Notice to Frish's Big Boy. Signed by Chief Magistrate Judge Sharon L. Ovington on 2-24-15. (mcm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DONALD RICHARDSON, et al.,
Plaintiffs,

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v.
BOARD OF EDUCATION OF
HUBER HEIGHTS CITY
SCHOOLS, et al.,
Defendants.

Case No. 3:12cv00342
District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

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DECISION AND ORDER

This matter is before upon Defendants’ Motion to Enforce Subpoena to Frisch’s
Big Boy (Doc. #131), to which Plaintiff has not responded, and the record as a whole.
In early December 2014, Defendants served a subpoena on Plaintiff’s part-time
employer, Frisch’s Big Boy, a non-party to this case. The subpoena seeks Plaintiff’s
complete personnel/employment file, including, but not limited to, job performance
evaluations, payroll/wage records, disciplinary records, medical records, etc. (Doc. #131,
PageID# 1377). On December 3, 2014, James Long accepted service of the subpoena on
behalf of Frisch’s Big Boy. (PageID# 1378). The subpoena directed Frisch’s Big Boy to
produce Plaintiff’ personnel/employment file on December 19, 2014.

Defendants represent that they have not received Plaintiff’s personnel/employment
file from Frisch’s Big Boy; Defendants have not received any objection to producing
Plaintiff’s file; they have not received any request for extension of time to produce
Plaintiff’s personnel file; and they have not received any response whatsoever from
Frisch’s Big Boy.
In this case, Plaintiff seeks to recover damages for emotional distress allegedly
caused by one or more Defendants. He has therefore placed at issue his emotional state
after the incident in question. Plaintiff’s personnel/employment file might reasonably be
expected to contain information about his ability to function in the workplace, including
his ability to follow directions from supervisors, to get along and work with co-workers,
to be reliable and timely in attendance, and other information that may tend to reflect his
emotional health or harm during time periods after the incident in question. Because of
this, Defendants’ subpoena to Frisch’s Big Boy seeks information that is either relevant or
is reasonably calculated to lead to the discovery of admissible evidence. Defendants are
therefore entitled to discover the contents of Plaintiff’s personnel/employment file. See
Fed. R. Civ. P. 26(b)(1).
Although Frisch’s Big Boy is not a party to this case, it must comply with the
subpoena. See Fed. R. Civ. P. 35(c), 45(c)(2). If Frisch’s Big Boy fails or refuses to
comply with the subpoena, it will likely be found in contempt of this Court and subject to
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an Order imposing monetary sanctions, including the amount of Defendants’ reasonable
attorney fees. See Fed. R. Civ. P. 45(g).
Accordingly, Defendants’ Motion to Enforce Subpoena to Frisch’s Big Boy is well
taken.
IT IS THEREFORE ORDERED THAT:
1.

Defendants’ Motion to Enforce Subpoena to Frisch’s Big Boy (Doc. #131)
is GRANTED;

2.

Defendants shall prepare another subpoena to Frisch’s Big Boy and submit
it to the Clerk of Court; the subpoena shall mandate Frisch’s Big Boy to
produce responsive documents on or before March 10, 2015; Frisch’s Big
Boy shall timely produce such responsive documents to Lynette Dinkler,
Dinkler Pregon, LLC, 5335 Far Hills Ave., Suite 123, Dayton, OH 45429;
such responsive documents shall be subject to the terms of the Protective
Order previously entered in this case;

3.

The Clerk of Court shall forward a copy of the subpoena to the United
States Marshals Service; the United States Marshal shall forthwith serve
Frisch’s Big Boy – within a reasonable time before March 3, 2015 – with a
copy of the subpoena and a copy of this Decision and Order; and

4.

Frisch’s Big Boy is placed on NOTICE that if it fails or refuses to comply
with the subpoena, it will likely be found in contempt of this Court and
subject to an Order imposing monetary sanctions, including the amount of
Defendants’ reasonable attorney fees.

February 24, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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