Equal Employment Opportunity Commission v. Holmes & Holmes Industrial

Filing 44

MEMORANDUM DECISION AND ORDER granting in part and denying in part 30 Motion to Quash; granting in part and denying in part 30 Motion for Protective Order;granting 32 Motion to Compel; granting 40 Motion to Compel. Signed by Magistrate Judge Paul M. Warner on 10/27/11 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
Case No. 2:10-cv-955-DAK-PMW
HOLMES & HOLMES INDUSTRIAL,
INC., a Utah corporation,
Defendant.

JOBY BRATCHER and ANTONIO
BRATCHER,
Plaintiffs-in-Intervention,
v.
HOLMES & HOLMES INDUSTRIAL,
INC., a Utah corporation; H3GROUP,
INC.; MICHAEL H. HOLMES; RON K.
HOLMES; PAUL FACER, DOES 1-20,
Defendants-in-Intervention.

District Judge Dale A. Kimball
Magistrate Judge Paul M. Warner

District Judge Dale A. Kimball referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court are (1) the Equal Employment

1

See docket no. 31.

Opportunity Commission’s (“EEOC”) motion to quash subpoenas and for a protective order;2 (2)
H3Group, Inc.; Holmes & Holmes Industrial, Inc. (“Holmes & Holmes”); Michael H. Holmes;
Ron K. Holmes’s (collectively, “Defendants”) motion to compel;3 and (3) the EEOC’s motion to
compel.4 The court has carefully reviewed the written memoranda submitted by the parties.
Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the
District of Utah, the court has concluded that oral argument is not necessary and will determine
the motions on the basis of the written memoranda. See DUCivR 7-1(f).
BACKGROUND
On September 28, 2010, the EEOC filed this action on behalf of Joby Bratcher (“Joby”)
and Antonio Bratcher (“Antonio”) (collectively, “Plaintiffs”) alleging that Holmes & Holmes
violated Title VII by subjecting Plaintiffs to a hostile work environment and terminating their
employment. On October 15, 2010, Plaintiffs moved to intervene in the EEOC’s case. That
motion was granted by the court on December 8, 2010, and Plaintiffs filed their complaint-inintervention against Defendants on December 10, 2010.
The EEOC and Plaintiffs allege that Defendants used racial slurs, including the “N” word,
on the jobsite at Holmes & Holmes. Plaintiffs were laid off from employment with Holmes &

2

See docket no. 30.

3

See docket no. 32.

4

See docket no. 40.
2

Holmes in September 2008. Since that time, Plaintiffs have secured employment with other companies.
Both prior to and during his employment with Holmes & Holmes, Joby wrote rap songs
and lyrics. Antonio also participated in drafting those song lyrics. Beatblazer, LLC
(“Beatblazer”) is a production company that produced several of those songs. Defendants assert
that the majority of those songs and accompanying music videos contained the “N” word or a
variation of that word. Through discovery requests and a subpoena to Beatblazer, Defendants
sought the production of copies of lyrics and videos for each and every song Plaintiffs have
written, produced, or otherwise published. Plaintiffs objected to the discovery requests and the
subpoena to Beatblazer as being overly broad, unduly burdensome, and not reasonably calculated
to lead to the discovery of admissible evidence.5
During discovery, Defendants sought the production of any and all documents related to
Plaintiffs’ employment for the last ten years. In addition to seeking that information through
discovery requests to Plaintiffs, Defendants issued subpoenas to testify at a deposition and
subpoenas duces tecum to Plaintiffs’ current employers. The EEOC objected to the discovery

5

Defendants have not raised the issue of whether Plaintiffs have standing to object to the
subpoena served on Beatblazer. Nevertheless, the court concludes that Plaintiffs have a
sufficient interest in the information sought by the subpoena to provide them with standing to
object to it. See, e.g., Richards v. Convergys Corp., No. 2:05-cv-00790-DAK & 2:05-cv-00812DAK, 2007 U.S. Dist. LEXIS 9131, at *3 (D. Utah Feb. 6, 2007) (“Generally, a party does not
have standing to object to a subpoena issued to a third party, unless the party challenging the
subpoena has a personal right or privilege with respect to the subject matter sought by the
subpoena.”).
3

requests and the subpoenas as being overly broad, unduly burdensome, and not reasonably
calculated to lead to the discovery of admissible evidence.6
Also during discovery, the EEOC sought documents and information about the financial
condition of Holmes & Holmes. Defendants objected on several grounds, including that state
law prohibits discovery of a defendant’s wealth until the plaintiff has proven that an award of
punitive damages is “reasonably likely.” Utah Code § 78B-8-201(2)(a). Defendants also
objected on the grounds that the requests were overly broad, premature, and compound.
ANALYSIS
All of the motions before the court relate to discovery. “The district court has broad
discretion over the control of discovery, and [the Tenth Circuit] will not set aside discovery
rulings absent an abuse of that discretion.” Sec. & Exch. Comm’n v. Merrill Scott & Assocs.,
Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (quotations and citations omitted). The general scope
of discovery is governed by rule 26(b)(1) of the Federal Rules of Civil Procedure, which provides
that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense. . . . Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.
R. Civ. P. 26(b)(1). “[T]he scope of discovery under the federal rules is broad and . . . ‘discovery

6

Defendants have also not raised the issue of whether the EEOC has standing to object
to the subpoena served on Plaintiffs’ current employers. Regardless, the court concludes that the
EEOC does have such standing. See id. (“Several courts have concluded . . . that a party has a
personal right with respect to information contained in his personnel files sufficient to confer
standing to move to quash a subpoena for his employment records served on a third party.”).
4

is not limited to issues raised by the pleadings, for discovery itself is designed to help define and
clarify the issues.’” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). “Although the scope of
discovery under the federal rules is broad, however, parties may not engage in a ‘fishing
expedition’ in an attempt to obtain evidence to support their claims or defenses.” Richards v.
Convergys Corp., No. 2:05-cv-00790-DAK & 2:05-cv-00812-DAK, 2007 U.S. Dist. LEXIS
9131, at *10 (D. Utah Feb. 6, 2007) (quoting Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160,
1169 (10th Cir. 2000)).
I. EEOC’s Motion to Quash and for a Protective Order
and Defendants’ Motion to Compel
In its motion to quash and for a protective order, the EEOC argues that Defendants should
not be allowed to discover documents related to Plaintiffs’ current employment, including their
entire personnel files. The EEOC also argues that Plaintiffs and Beatblazer should not be
required to produce copies of lyrics and videos for each and every song Plaintiffs have written,
produced, or otherwise published. Defendants have filed a cross-motion to compel, arguing that
Plaintiffs should be required to produce those lyrics and videos.
A. Plaintiffs’ Employment Records
After carefully considering the parties arguments on this issue, the court is persuaded by
the EEOC’s argument that the discovery requests and the subpoenas concerning Plaintiffs’
current employment are overly broad. See Richards, 2007 U.S. Dist. LEXIS 9131, at *17
(“While the subpoenaed entities may possess documents that would lead to discovery of

5

admissible evidence as discussed above, a blanket request for all documents regarding [a party’s]
employment is overly broad.”). Although it is not dispositive of the issue, the court also has
some concerns about annoyance, embarrassment, and harassment with respect to Plaintiffs’
relationships with their current employers. See id., at *12-13 (noting that “a subpoena to a
current employer may cause problems in the employment relationship” and acknowledging “that
seeking discovery from a current employer is a more sensitive issue than seeking it from a former
employer”).
While the court agrees with Defendants that their discovery requests and subpoena may
yield some relevant information, as currently drafted, they are simply too broad. Accordingly,
with respect to the discovery requests and subpoena seeking the production of any and all
documents related to Plaintiffs’ current employment, the EEOC’s motion to quash and motion
for a protective order are granted.
B. Music Lyrics and Videos
After carefully reviewing the parties’ arguments on this issue, the court is persuaded by
Defendants’ argument that Plaintiffs’ music lyrics and videos are relevant and should be
produced. As noted by Defendants, in order for Plaintiffs to prevail on their claim for a hostile
work environment, they must demonstrate that the work environment was hostile from both an
objective and subjective perspective. See Wright-Simmons v. City of Oklahoma City, 155 F.3d
1264, 1269 (10th Cir. 1998) (“To establish her claim, plaintiff must show both that the conduct
to which she was subject was severe or pervasive enough to create . . . an environment that a
reasonable person would find hostile or abusive, and that she subjectively perceived the
6

environment to be abusive.” (alteration in original) (quotations and citation omitted)). Given the
requirement that Plaintiffs establish a subjective perception that their work environment was
hostile, the court concludes that the lyrics and videos at issue are directly relevant to Plaintiffs’
claims in this case. The court is persuaded that the use of any particular words or phrases in
those lyrics and videos is relevant to Plaintiffs’ subjective perceptions.
Accordingly, with respect to the discovery requests and subpoena seeking production of
copies of lyrics and videos for each and every song Plaintiffs have written, produced, or
otherwise published, the EEOC’s motion to quash and for a protective order is denied, and
Defendants’ motion to compel is granted. Plaintiffs, the EEOC, and Beatblazer shall provide
responses to the discovery requests and subpoena at issue within thirty days of the date of this
order.
II. EEOC’s Motion to Compel
In this motion, the EEOC seeks an order compelling Defendants to respond to request for
production of documents number twenty and interrogatory number five. Both of those discovery
requests seek financial information about Holmes & Holmes. Defendants object to the requests
on the grounds that (A) a state statute prohibits disclosure of the information sought by the
requests and (B) pretrial discovery of a defendant’s financial information for purposes of a
punitive damages claim is inappropriate. The court will address Defendants’ arguments in turn.
A. State Statute
Defendants argue that, pursuant to Utah Code section 78B-8-201, “[d]iscovery
concerning a party’s wealth or financial condition may only be allowed after the party seeking
7

punitive damages has established a prima facie case on the record that an award of punitive
damages is reasonably likely against the party about whom discovery is sought.” Utah Code
§ 78B-8-201(2)(a). In a 2009 decision, Magistrate Judge David Nuffer concluded that section
78B-8-201 was not specifically applicable to a discovery related motion. See Free Conference
Call Holdings, Inc. v. Powerhouse Commc’ns, LLC, No. 2:07-cv-893-CW, 2009 U.S. Dist.
LEXIS 81408, at *6 (D. Utah Sept. 8, 2009). In addition, Judge Nuffer held that “[t]he
requirement that [a plaintiff] establish a prima facie case applies to the admissibility of evidence
about financial status, not its discoverability. More importantly, discovery is a procedural matter
that is governed in federal court by the Federal Rules of Civil Procedure. Thus, state discovery
practices are usually irrelevant.” Id., at *6-7 (footnotes, quotations, and citations omitted).
This court agrees with that reasoning and concludes that Utah Code section 78B-8-201 is
inapplicable here. Accordingly, the court concludes that Defendants’ argument on this issue is
without merit.
B. Financial Information
Defendants also argue that pretrial discovery of a defendant’s financial information for
purposes of a punitive damages claim is inappropriate. In response, the EEOC argues that a
majority of federal courts allow pretrial discovery of a defendant’s financial information when
the plaintiff has asserted a punitive damages claim. Although Defendants claim it is a slim
majority, they concede that the EEOC’s argument is correct.
It is true that “[w]hen a punitive damages claim has been asserted by the plaintiff, a
majority of federal courts permit pretrial discovery of financial information of the defendant
8

without requiring plaintiff establish a prima facie case on the issue of punitive damages.” Equal
Emp’t Opportunity Comm’n v. Body Firm Aerobics, Inc., No. 2:03-cv-846-TC, 2006 U.S. Dist.
LEXIS 36624, at *9-10 (D. Utah June 1, 2006) (alteration in original) (quotations and citation
omitted). Consequently, the court concludes that Defendants’ argument on this issue is likewise
without merit.
The court is persuaded by the EEOC’s arguments and has determined that Defendants’
arguments fail. Accordingly, the EEOC’s motion to compel is granted. Defendants shall provide
responses to request for production of documents number twenty and interrogatory number five
within thirty days of the date of this order. To the extent that Defendants have any privacy or
confidentiality concerns, those responses may be provided subject to the terms of the protective
order of confidentiality previously entered in this case.7
CONCLUSION AND ORDER
In summary, IT IS HEREBY ORDERED:
1.

The EEOC’s motion to quash and for a protective order8 is GRANTED IN PART

AND DENIED IN PART.
2.

Defendants’ motion to compel9 is GRANTED.

7

See docket no. 27.

8

See docket no. 30.

9

See docket no. 32.
9

3.

The EEOC’s motion to compel10 is GRANTED.

IT IS SO ORDERED.
DATED this 27th day of October, 2011.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

10

See docket no. 40.
10