Harbord v. Home Depot U.S.A. Inc.
Opinion and Order - Plaintiff's motion to quash (ECF 12 ) is denied. Plaintiff's motion for protective order (ECF 14 ) is granted. Signed on 3/24/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DERRICK HARBORD, an individual,
Case No. 3:16-cv-2179-SI
OPINION AND ORDER
HOME DEPOT U.S.A. Inc. d.b.a.
The Home Depot, a Delaware corporation,
Steven C. Burke, CASE & DUSTERHOFF, LLP, 9800 SW Beaverton Hillsdale Highway, Suite 200,
Beaverton, OR 97005. Of Attorneys for Plaintiff.
Elizabeth A. Falcone and Kelly S. Riggs, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
222 SW Columbia Street, Suite 1500, Portland, OR 97201. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff Derrick Harbord worked as an employee for Defendant Home Depot U.S.C.,
Inc. from December 2013 through August 2015. Plaintiff’s job title was “Asset Protection
Specialist.” Plaintiff alleges that in May 2015, he filed a written complaint with Defendant
regarding the sexual harassment of Plaintiff’s female co-employees. According to Plaintiff,
Defendant took no corrective action, and Defendant began to treat Plaintiff differently. Plaintiff
alleges that Defendant falsely reprimanded Plaintiff for violating company policy regarding the
use of force against a suspected shoplifter. Defendant terminated Plaintiff’s employment in
August 2015. Based on these allegations, Plaintiff sued Defendant in state court, asserting two
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counts of unlawful termination based on Plaintiff’s good faith complaint of sexual harassment of
co-employees and whistleblowing, in violation of Oregon law. Defendant timely removed the
action to federal court. Plaintiff moves to quash Defendant’s third-party subpoenas issued to
Plaintiff’s former employers and others (ECF 12) and for a protective order (ECF 14) limiting
Defendant’s 106 separate requests for production of documents served on Plaintiff.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides in relevant part:
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). The Federal Rules of Civil Procedure promote a “broad and liberal”
policy of discovery. Hickman v. Taylor, 329 U.S. 495, 507 (1947). The right to discovery,
however, is not unlimited. A court must limit the extent of otherwise allowable discovery if “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.” Fed. R. Civ.
In addition, Rule 1 of the Federal Rules of Civil Procedure provides that these rules
“should be construed, administered, and employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and proceeding” (emphasis added). The
advisory committee note to the 2015 Amendment, which added the italicized text, explains:
Most lawyers and parties cooperate to achieve these ends. But
discussions of ways to improve the administration of civil justice
regularly include pleas to discourage over-use, misuse, and abuse
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of procedural tools that increase cost and result in delay. Effective
advocacy is consistent with — and indeed depends upon —
cooperative and proportional use of procedure.
Fed. R. Civ. P. 1 advisory committee’s note to 2015 amendment.
A. Motion to Quash
Plaintiff moves to quash three subpoenas issued to third parties. ECF 12. Defendant
issued two subpoenas to former employers of Plaintiff and a third subpoena to a business with
which Plaintiff previously was affiliated. Plaintiff argues that the three third-party subpoenas
seek documents that are neither relevant nor likely to lead to relevant or admissible evidence.
According to Plaintiff, nothing sought by the subpoenas would tend to prove or disprove any
issue in this case. Defendant responds that the admissibility of Plaintiff’s prior employment
records is not the appropriate standard and that those records (including Plaintiff’s personnel file,
attendance, compensation, pay, benefits, performance, disciplinary, and termination records)
may be relevant to liability or damage issues in this case.
Plaintiff does not assert that any of the documents subject to Defendant’s third-party
subpoenas are privileged. The Ninth Circuit has not yet ruled on whether a party has standing to
bring a motion to quash a subpoena served on a third-party. “The general rule, however, is that a
party has no standing to quash a subpoena served upon a third party, except as to claims of
privilege relating to the documents being sought.” California Sportfishing Protection Alliance v.
Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Cal. 2014); Windsor v. Martindale, 175
F.R.D. 665, 668 (D. Colo. 1997).
Some courts, however, also recognize that a party may move to quash a third-party
subpoena upon a showing that there is an applicable privacy interest, even if that interest does
not rise to the level of a privilege. Id.; see also Broadcort Capital Corp. v. Flagler Securities,
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Inc., 149 F.R.D. 626 (D. Colo. 1993); Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D.
Kan. 1995). Absent a specific showing of either a privilege or privacy interests, a court may not
quash a subpoena duces tecum. Plaintiff did not expressly invoke his privacy interests as a basis
for his motion to quash. Accordingly, the Court need not determine the scope or limits of such an
argument. Plaintiff’s motion to quash (ECF 12) is denied.
B. Plaintiff’s Motion for Protective Order
Plaintiff also moves for a protective order against having to respond to Defendant’s first
set of requests for production of documents. ECF 14. In its request, Defendant specifies 106
separate requests for production of documents, after including seven pages of definitions and
instructions. Defendant’s first four requests for production set the tone.
Defendant’s first request for production seeks: “All documents that in any way refer to,
relate to, or support the allegation in Paragraph 3 of your Complaint that ‘[o]n or about
December of 2013 Defendant hired Plaintiff as an employee.’” ECF 15 at 10. Defendant’s
second request seeks: “All documents that in any way refer to, relate to, or support the allegation
in Paragraph 3 of your Complaint that ‘Plaintiff’s job title was Asset Protection Specialist.’” It is
curious why Defendant (which hired Plaintiff and determined his job title) would ask for this
information, especially in light of the fact that more than three months before serving
Defendant’s document request on Plaintiff, Defendant admitted the allegations of Paragraph 3 of
Plaintiff’s Complaint. ECF 6 at 1 (Answer, admitting the allegations contained in Paragraph 3 of
the Complaint); ECF 1-1 at 1 (Complaint, alleging at Paragraph 3 that “On or about December of
2013 Defendant hired Plaintiff as an employee. Plaintiff’s job title was Asset Protection
In addition, Defendant’s third request for production seeks: “All documents that in any
way refer to, relate to, or support the allegation in Paragraph 4 of your Complaint that ‘[a]ll
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material events described herein occurred within the State of Oregon.’” ECF 15 at 10.
Defendant’s fourth request for production seeks: “All documents that in any way refer to, relate
to, or support the allegation in Paragraph 5 of your Complaint that ‘[o]n or about May 6, 2015,
Plaintiff filed a written complaint with the management of Defendant regarding the sexual
harassment of female co-employees of Defendant in the Portland area.’” Id. at 11. This pattern
continues for a total of 106 separately numbered requests for production. Moreover, the parties
agreed to exchange (rather than waive) all of the initial disclosures required under Rule 26(a)(1)
of the Federal Rules of Civil Procedure, yet Defendant served its 106 requests for production
without first seeing Plaintiff’s initial disclosures and indeed well before those initial disclosures
were even due.
Defendant’s approach to discovery in this case is inconsistent with Rule 1. Plaintiff’s
motion for protective order (ECF 14) is granted. After Defendant has reviewed Plaintiff’s initial
disclosures, Defendant and Plaintiff shall, in good faith, meet in person and confer about
discovery as required under Rule 26(f) of the Federal Rules of Civil Procedure, which the parties
have not yet done. Only then may Defendant propound a more reasonable set of requests for
production, if needed, consistent with both the letter and spirit of the federal rules.
Plaintiff’s motion to quash (ECF 12) is denied. Plaintiff’s motion for protective order
(ECF 14) is granted.
IT IS SO ORDERED.
DATED this 24th day of March, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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