Bolding et al v. Banner Bank

Filing 225

ORDER Granting Plaintiffs' 198 MOTION for Protective Order. Defendant shall not issue a third-party subpoena or otherwise seek discovery regarding Ms. Bolding's or Ms. Taylor's timekeeping records from their current employers. Signed by Judge Robert S. Lasnik. (LH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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KELLY BOLDING, et al.,
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Plaintiff,
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v.
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BANNER BANK,
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Defendants.
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_______________________________________)

Case No. C17-0601RSL
ORDER GRANTING PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

This matter comes before the Court on “Plaintiffs’ Motion for a Protective Order to

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Prevent Defendant from Issuing Harassing Subpoenas for Two Class Members’ Irrelevant Post-

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Discharge Employment Records.” Dkt. # 198. This is a class action seeking compensation on

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behalf of mortgage loan officers for all hours worked while they were employed by Banner Bank

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and/or its predecessor, AmericanWest Bank. Defendant asserts that its mortgage loan officers

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were fully compensated for all hours worked.1

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Ms. Bolding currently works at Potlatch No. 1 Federal Credit Union and worked at

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Numerica Credit Union immediately after leaving Banner’s employ. Ms. Taylor currently works

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at Numerica. During their depositions in this case, Ms. Bolding and Ms. Taylor answered

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questions regarding their post-Banner employment and timekeeping activities. Following the

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depositions, defendant notified plaintiffs that they intended to serve subpoenas on the post-

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Class representative Kelly Bolding and class member Miranda Taylor are also pursuing gender
discrimination and retaliation claims against defendant in a lawsuit filed in state court on January 11,
2019.
ORDER GRANTING PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

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Banner employers seeking “[a]ll employment records . . . related to timekeeping, including but

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not limited to: timecards, time-entry attestations, overtime approval requests, and payroll data.”

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See, e.g., Dkt. # 199 at 11. Plaintiffs objected to the discovery and, following a meet and confer,

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filed this motion for a protective order prohibiting the issuance of subpoenas to the post-Banner

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employers.2

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Rule 26 of the Federal Rules of Civil Procedure governs the permissible scope of

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discovery in federal civil litigation. Rule 26(b) sets forth the threshold requirement that

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information sought to be discovered must appear “relevant to any party’s claim or defense and

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proportional to the needs of the case . . . .” Rule 26(c) then provides the courts with the authority

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to issue, for good cause, a protective order to prevent “annoyance, embarrassment, oppression,

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or undue burden or expense” in connection with documents sought in discovery. This includes

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“forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to

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certain matters....” Fed. R. Civ. P. 26(c)(1)(D). To establish good cause under Rule 26(c), the

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movant must show “‘that specific prejudice or harm will result’ if the protective order is not

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granted.” In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir.

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2011) (quoting Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003)). “Rule

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26(c) confers broad discretion on the trial court to decide when a protective order is appropriate

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and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36

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(1984). Thus, in reviewing plaintiffs’ motion for a protective order, courts must consider both

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whether the discovery falls within the scope of Rule 26(b) and whether the relevance of the

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information sought outweighs its potential to annoy, embarrass, oppress, or unduly burden the

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opposing party.

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In the context presented here, courts in this district generally find that “employment
records from separate employers are not discoverable due to their highly private nature absent a

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In response to plaintiffs’ motion, defendant agreed to forgo issuing a subpoena to Ms.
Bolding’s former employer, Numerica. Dkt. # 200 at 5 n.1.
ORDER GRANTING PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

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specific showing by a defendant as to their relevance.” Scott v. Multicare Health Sys., Cause No.

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C18-0063-JCC, 2019 WL 1559211, at *2 (W.D. Wash. Apr. 10, 2019) (quoting Paananen v.

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Cellco P’ship, Cause No. C08-1042-RSM, 2057048, at * 3 (W.D. Wash. July 15, 2009)). See

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also Greenburg v. Red Robin Int’l, Inc., Cause No. C17-6052-BHS, 2018 WL 2329671, at *1

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(W.D. Wash. May 23, 2018). In addition to the privacy concerns discussed in these cases, Ms.

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Bolding and Ms. Taylor also point out that the industry in which they are employed has been

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beset by wage and hour litigation, and that there is a fair chance that a request directed to their

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new employers for timekeeping records would cause alarm to, if not friction with, their current

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employers. While defendant discounts this concern, courts have recognized that notifying a

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current employer of the filing of a claim can be considered retaliatory because it would chill

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employees’ willingness to pursue statutory claims and remedies for fear of adversely impacting

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future employment opportunities. Rutherford v. Am. Bank of Commerce, 565 F.2d 1162, 1164

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(10th Cir. 1977) (affirming finding that former employer retaliated when it notified plaintiff’s

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current employer that plaintiff had filed a discrimination charge). See also Burlington N. &

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Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“The scope of the antiretaliation provision

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extends beyond workplace-related or employment-related retaliatory acts and harm.”). Providing

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such notice in the guise of a subpoena will therefore be permitted only if defendant’s showing of

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relevance outweighs the potential prejudice.

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Defendant argues that time records from Ms. Bolding’s and Ms. Taylor’s current

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employers are relevant because they “testified the overtime they work at their current employers

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are a reasonable proxy for the overtime they claim they worked at Banner and AWB - which is

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the sole issue driving this lawsuit.” Dkt. # 200 at 10. The witnesses said no such thing, however.

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In response to questioning from defense counsel, Ms. Bolding stated that she has worked at

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Potlatch as a mortgage loan officer since April 2018, that she is a non-exempt employee, that she

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records all hours worked, and that she works more than 40 hours per week, with one to three

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hours of overtime each week. Dkt. # 201-1 at 15-16. Ms. Bolding did not say that she performed
ORDER GRANTING PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

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the mortgage loan officer position in the same way at both Banner Bank and Potlatch or that her

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hours at Potlatch were a proxy for her hours at Banner. In fact, she identified specific differences

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in the way she used and recorded her time at the two employers. Dkt. # 201-1 at 16. Ms. Taylor

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stated that she has been working as a non-exempt home loan officer for Numerica in Spokane

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since September 2017, that the position involves originating loans for borrowers and

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participating in realtor association events, that the position requires overtime, that her overtime

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varies but averages between 15 to 20 hours per week, and that she accurately reports and is paid

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for all hours worked at Numerica. Once again, counsel did not ask, and Ms. Taylor did not say,

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that “the overtime [she] work[s] at [her] current employer[ is] a reasonable proxy for the

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overtime [she] claim[s she] worked at Banner and AWB.”
Plaintiffs’ wage claims concern how many hours each employee worked for Banner in a

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given week and whether they reported and were paid for that work. Plaintiffs’ allegations against

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Banner do not implicate their current employers. Defendant has not shown that information

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regarding the number of hours worked/reported/paid at their current employers will allow

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Banner to calculate the number of hours Ms. Bolding and Ms. Taylor worked at Banner/AWB in

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any given week or in total. Neither witness tied their current timekeeping records to the hours

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they worked at Banner/AWB, much less testified that one was a proxy for the other.

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At most, Banner is attempting to prove or disprove an entirely collateral issue, namely the

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number of hours of overtime Ms. Bolding and Ms. Taylor worked after they left Banner’s

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employ. Neither that fact nor the witnesses’ truthfulness in testifying regarding this collateral

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issue is relevant to any claim or defense asserted in this litigation. Defendant has not, therefore,

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made a specific showing of relevance sufficient to demonstrate that Ms. Bolding’s and Ms.

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Taylor’s timekeeping records at their current employers are discoverable in this case. Moreover,

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plaintiffs have established good cause warranting a protective order precluding defendant from

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seeking Ms. Bolding’s and Ms. Taylor’s records from their current employer. As discussed

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above, plaintiffs have a privacy interest in their employment records and have cited the negative
ORDER GRANTING PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

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impact that defendant’s proposed subpoenas could have on their current employment situations.

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Combined with defendant’s failure to show that the records are relevant to any claim or defense

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in this litigation, plaintiffs’ interests and concerns constitute good cause meriting entry of a

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protective order under Rule 26(c).

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For all of the foregoing reasons, plaintiffs’ motion for protective order prohibiting

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defendant’s proposed third-party discovery (Dkt. # 198) is GRANTED. Defendant shall not

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issue a third-party subpoena or otherwise seek discovery regarding Ms. Bolding’s or Ms.

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Taylor’s timekeeping records from their current employers.

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Dated this 2nd day of July, 2020.

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A

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Robert S. Lasnik
United States District Judge

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ORDER GRANTING PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

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