Baker v. Gladstone Auto, LLC

Filing 17

ORDER: Defendant may issue subpoenas to Summit and Ron Tonkin in accordance with the limits and modifications set by this order. Signed on 6/12/18 by Magistrate Judge Paul Papak. (gm)

THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF OREGON
PORTLAND DIVISION
ROBERT BAKER,
No. 3:18-cv-155-PK
Plaintiff,

ORDER

v.
GLADSTONE AUTO, LLC,
Defendant.
PAPAK, Magistrate Judge:

PlaintiffRobe1t Baker brings this employment discrimination action under Oregon law
and 42 U.S.C. § 1981 against Defendant Gladstone Auto LLC, dba Toyota of Gladstone.
Plaintiff claims that Defendant discriminated against him and harassed him because he is
Mexican-American, and retaliated against him for opposing discrimination.
The pmties have informally asked this comt to address Plaintiffs objections to
Defendant's proposed subpoenas seeking documents from Plaintiffs current employer, Ron
Tonkin Honda (Ron Tonkin), and from Summit Auto Group (Summit), where Plaintiff worked
briefly after leaving Defendant.

LEGAL STANDARDS
In Beaver v. Delicate Palate Bistro, Inc., No. 3:17-cv-644-PK, 2017 WL 4011208, at *2
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ORDER

(D. Or. Sept. 12, 2017), I addressed a similar discovery issue:
[P]laintiffs have a legitimate privacy interest in the contents of their employment
records. See, e.g., Abu v. Piramco SEA-TAC, Inc., Case No. 08-1167, 2009 WL
279036, at *1-2, 2009 U.S. Dist. LEXIS 12626, *4-5 (W.D. Wash. Feb. 5, 2009).
. . . [P]ublic policy reasons militate against lightly invading that privacy interest,
in that an expectation of privacy in employment records encourages candid
employment evaluations and avoids impairment of employee morale. See, e.g., In
re Hawaii C01p., 88 F.R.D. 518, 524 (D. Haw. 1980). Nevetiheless, the comis of
the Ninth Circuit generally allow discovery of employment records
notwithstanding such privacy and public policy concems where the material
sought is clearly relevant to claims or defenses at issue and the infotmation
contained in the material is not otherwise readily available. See, e.g., Newell v.
County ofSan Diego, Case No. 12-CV-1696, 2013 WL 1932915, at *2, 2013 U.S.
Dist. LEXIS 66521 *4 (S.D. Cal. May 8, 2013).

DISCUSSION
Plaintiff assetis that he can provide the documents Defendant seeks in the two subpoenas,
thereby avoiding issuing subpoenas to Plaintiffs subsequent employers. Plaintiff argues that
"[s]erving subpoenas on these two employers has the practical effect of smearing Plaintiffs
name in the industty for filing a lawsuit and creating a chilling effect on future plaintiffs."
However, Plaintiffs counsel's suggestion that he himself could obtain personnel files and other
records directly from Plaintiffs employers would if anything emphasize that Plaintiff is bringing
a lawsuit. As Defendant notes, employers are legally prohibited from discriminating against an
employee for bringing a discrimination lawsuit. Defendant also states that the parties have a
protective order in place now, ECF No. 12, so documents provided by Summit or Ron Tonkin
may not be used or disclosed for any purpose other than this litigation. I conclude that
Defendant's proposed subpoenas seek relevant documents, subject to the modifications below,
and would not improperly invade Plaintiffs privacy.
Defendant requests Plaintiffs employment applications. Although Plaintiff offers to
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provide his applications, I find that Defendant may seek them directly from the employers.
Defendant requests Plaintiffs resumes. Plaintiff states in a Rule 26 disclosure, he
notified Defendant that he does not have a resume. Based on Plaintiffs statement, I agree with
Plaintiff that Defendant should omit the request for resumes from the subpoenas.
Defendant requests Plaintiffs attendance records. Defendant argues that because
Plaintiff took time off with Defendant because of an allegedly serious health condition, his
attendance records would show "how often he was able to work" after leaving Defendant.
Plaintiff responds that he will provide his attendance records. I conclude that Defendant is
entitled to seek these attendance records directly from Plaintiffs employers. See Tran v. Wells

Fargo Bank, NA., 3:15-cv-00979-BR, 2017 WL 1234131, at *3 (D. Or. Jan. 20, 2017)
("Plaintiffs cunent employment records are relevant to his claims in light of his allegation that
Defendant's conduct resulted in 'damage to [Plaintiffs] career' and resulted in his 'lack of
confidence in the banking system'").
Defendant requests disciplinmy records relating to discrimination claims filed by or
against Plaintiff. I find that Defendant may seek such records, but that the subpoena may not
request records on discrimination claims specifically, but rather only Plaintiffs disciplinmy
records, if any. See id. (allowing the defendant to seek "perfo1mance evaluations, disciplinary
records, complaints, and records of complaints involving Plaintiff').
Defendant requests wage and income records for Plaintiff. Plaintiff responds that he has
already provided his copies of these records. I find that Defendant may seek these documents
directly from Plaintiffs subsequent employers.
Defendant seeks performance evaluation records, arguing that they are relevant to show

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ORDER

"Plaintiffs work qualifications and work-related habits." I agree with Judge Brown's rnling in

Tran, cited above, that these records are subject to discovery.
Defendant seeks correspondence between Plaintiff and his subsequent employers.
Defendant contends that communications between Plaintiff and his subsequent employers "could
provide information on why [Plaintiff! left his employment" with Defendant, "the working
conditions at [Defendant], and Plaintiffs "mental and physical health leading up to his new
employment." Plaintiff responds he can provide responsive documents himself, and that the
request is too broad.
I find that this request is too broad, overly burdensome, and likely to lead to the
production of itrnlevant items. For example, there may be extensive communications such as
texts and emails between Plaintiff and his employers concerning pending sales. I conclude that
Defendant's request should be limited to only co11'espondence between Plaintiff and his
employers that is contained in Plaintiffs personnel files.
CONCLUSION
Defendant may issue subpoenas to Summit and Ron Tonkin in accordance with the limits
and modifications set by this order.
IT IS SO ORDERED.
Dated this

\Z~Y of June, 2

-!5;

onorable Paul Papak
United States Magistrate Judge

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