Garcia v. Professional Contract Services, Inc.
ORDER GRANTING 31 Motion to Quash and/or for Protective Order. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Before the Court are Plaintiff Esteban Garcia’s Motion to Quash and/or Protective Order Re:
Subpoena and Deposition by Written Questions to J&J Maintenance, Inc. (Dkt. No. 31); Defendant’s
Response (Dkt. No. 35); and Plaintiff’s Reply (Dkt. No. 36). The District Court referred the
discovery dispute to the undersigned Magistrate Judge for resolution pursuant to 28 U.S.C. §
636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix C of the Local Rules.
Esteban Garcia brings this case against Professional Contract Services, Inc. for wrongful
termination in retaliation for filing a whistleblower complaint against the company. For its part,
PCSI contends that Garcia was dismissed for repeatedly failing to perform his job duties. Prior to
working for PCSI, Garcia worked at J&J Maintenance, Inc. for five years, filling a similar role there,
as he filled at PCSI. Additionally, one of Garcia’s supervisors at J&J, Ace Burt, who had gone to
work at PCSI, is the person who hired and supervised Garcia at PCSI. Based on these facts, PCSI
served a document subpoena and notice of deposition by written questions on J&J, requesting all of
Garcia’s personnel and payroll records from J&J. In the instant motion, Garcia moves to quash the
subpoena, arguing that the documents are irrelevant and unduly burdensome.
PCSI first argues that Garcia does not have standing to quash the subpoena served on J&J.
Importantly, Garcia has requested both a protective order under Rule 26, and to quash the subpoena
pursuant to Rule 45. PCSI’s standing argument is limited to the Rule 45 motion to quash. This is
significant because “a party has standing to move for a protective order pursuant to Rule 26(c) . . .
even if the party does not have standing pursuant to Rule 45(d).” Bounds v. Capital Area Family
Violence Intervention Ctr., Inc., 314 F.R.D. 214, 218 (M.D. La. 2016). Given that PCSI does not
challenge Garcia’s standing under Rule 26, its standing argument under Rule 45 is largely irrelevant.
Moreover, PCSI’s challenge to Garcia’s standing under Rule 45 lacks merit. To have standing to
quash a subpoena served on a third party, one must have a “personal right or privilege” in the
requested documents. Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979). Courts have held that
an employee has a personal right to his personnel files, and therefore has standing to challenge a
subpoena for his personnel files. See, e.g., Brown v. Mountainview Cutters, LLC, No. 7:15-CV00204, 2016 WL 3045349, *2 (W.D. Va. May 27, 2016) (holding that an employee has a personal
right in his employment records); Rice v. Reliastar Life Ins. Co., No. 11-44, 2011 WL 5513181, *1
(M.D. La. Nov. 10, 2011) (same). The Court therefore overrules PCSI’s standing objection.
Garcia contends that the records sought by the subpoena are irrelevant. The scope of
discovery is the same under both Federal Rules of Civil Procedure 45 and 26. A party may discover
“any nonprivileged matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b).
Discovery outside of this scope is not permitted. Id. at (b)(2)(C)(iii). Information “need not be
admissible in evidence to be discoverable.” Id. at (b)(1). Further, the recent amendments to Rule 26
require that discovery be:
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
The records at issue in this motion are all of Garcia’s personnel and payroll records from his
former employer, J&J. Prior to his termination, Garcia worked for PCSI for ten years. His
employer immediately preceding PCSI was J&J. Thus, the most recent of Garcia’s J&J personnel
records will pre-date his termination from PCSI by at least ten years. PCSI nevertheless contends
that the documents may provide additional evidence to support its claim that it terminated Garcia
for performance related issues. PCSI states that it seeks the information to “understand the
competence of Plaintiff in such a job” or find “any prior criticism” or similar alleged deficiencies
in Garcia’s work. However, PCSI has ten years worth of employment records already in its
possession, and it is difficult to see how records from another company—one that Garcia left
voluntarily—could bear on PCSI’s claimed reasons for firing Garcia. See Peña v. Burger King
Corp., No. 2:12-CV-248, 2012 WL 12547064, *3 (E.D. Va. Sept. 21, 2012) (noting that “Defendant
has eight years of employment records at its disposal” to find evidence of plaintiff’s misconduct).
“[W]ithout some evidence to suggest that plaintiff was disciplined by [his] former employer for
conduct similar to the reasons proffered by defendant,” PCSI is not entitled to go on a fishing
expedition “in hopes of uncovering some evidence that may possibly be used” at trial. Sanders v.
Dalcraft, LLC, No. 3:09-CV-0307, 2009 WL 1392602, *2 (N.D. Tex. May 18, 2009); see also Peña,
2012 WL 12547064, at *3. Cf. Hansen v. Alamo Mobile X-Ray & EKG Servs., Inc., No. SA-14-CV01070, 2015 WL 12866215, *3 (W.D. Tex. Oct. 7, 2015) (finding that “efforts to use third-party
subpoenas to obtain a personnel file . . . in the hope of impeaching plaintiff’s credibility amounts to
nothing more than a fishing expedition”) (internal quotations omitted).
PCSI also argues that “the records bear on the credibility and bias” of the supervisor Garcia
worked under at J&J, and who later hired him at PCSI, Ace Burt. Dkt. No. 35 at 6. Garcia lists Burt
as a potential witness for the trial. However, as Garcia points out, if PCSI wishes to understand or
challenge Burt’s reasons for hiring Garcia, or his relationship with Garcia, it makes much more sense
to depose Burt (something that has since been scheduled, it appears), rather than searching through
records from more than ten years ago. In addition, Burt supervised Garcia at PCSI as well and PCSI
thus has its own records regarding Burt. Finally, while Burt only supervised Garcia at J&J for a
period of eighteen months (more than ten years ago), PCSI has requested “any rand [sic] all
personnel and payroll records” for the entire period Garcia was employed at J&J. Burt’s prior
supervision of Garcia at J&J was too brief to justify such a broad request.
The Court therefore GRANTS Plaintiff’s Motion to Quash and/or for Protective Order (Dkt.
SIGNED this 17th day of January, 2017.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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