Opinion
David B. Sacks, David B. Sacks, Esq., Jacksonville, FL, for Plaintiff.
Sara G. Sanfilippo, Ogletree Deakins Nash Smoak & Stewart, P.C.-Tampa, Tampa, FL, Sarah J. Kuehnel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Destin, FL, for Defendant.
ORDER
JOEL B. TOOMEY, United States Magistrate Judge
THIS CAUSE is before the Court on Plaintiff’s Objection to Defendant’s Notice of Production to Non-Party and Motion for Protective Order ("Motion for Protective Order") (Doc. 21), Defendant’s Response thereto (Doc. 24), and Defendant’s Request for Expedited Telephonic Hearing ("Motion for Hearing") (Doc. 25). Upon review, the Court finds that a hearing on the Motion for Protective Order is unnecessary. Therefore, the Motion for Hearing will be DENIED. For the reasons set forth herein, the Motion for Protective Order will be GRANTED.
This Order does not prevent Defendant from seeking to issue more narrowly tailored subpoenas, if appropriate. However, prior to serving any such subpoenas, Defendant must adequately confer with Plaintiff regarding the scope of the subpoenas. If the parties cannot agree on their scope, Defendant shall not serve the subpoenas until the Court rules on an appropriate motion filed by either party.
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in civil cases. In general, "[p]arties 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 ...." Fed.R.Civ.P. 26(b)(1). Under Rule 26(c)(1), "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery." Fed.R.Civ.P. 26(c)(1)(A). "A district court has broad discretion when fashioning protective orders." In re Alexander Grant & Co. Litig., 820 F.2d 352, 357 (11th Cir. 1987).
In this employment discrimination action, Plaintiff alleges generally that Defendant, her prior employer, engaged in gender discrimination and retaliation against her which resulted in her termination. (Doc. 1.) Defendant has served four subpoenas to Plaintiff’s prior employers, and one subpoena to her current employer, all of which are substantially identical and seek the following:
All documents related to your employment of [Plaintiff], including, but not limited to, her personnel file, employee records, payroll records, documents relating to absences and personal or medical leaves, performance evaluations, payroll/earnings, benefits, disciplinary actions, workers’ compensation claims, records related to her assignments, termination documentation, e-mail communication about her employment, compensation, performance, or assignments, and any other materials or documents concerning the employment of [Plaintiff].
(Doc. 27 at 3-22.)
Plaintiff seeks the entry of a protective order preventing Defendant from obtaining these records from her prior and current employers. (Doc. 21.) In support, Plaintiff argues that the subpoenas are overbroad, and that the relevant information sought by the subpoenas could be obtained directly from Plaintiff. (Id. ) The Court agrees.
Plaintiff also requests that the Court prevent service of the subpoenas. (Doc. 21.) However, Defendant states that the subpoenas were served prior to the filing of the Motion. (Doc. 24 at 3 n.2.)
Plaintiff has standing to challenge the subpoenas. See Barrington v. Mortage IT, Inc., Case No. 07-61304-CIV, 2007 WL 4370647, at *2 (S.D. Fla. Dec. 10, 2007) ("[C]ourts have repeatedly found that an individual possesses a personal right with respect to information contained in employment records and, thus, has standing to challenge such a subpoena.").
Defendant has failed to show how the wholesale production of "[a]ll documents related to [Plaintiff’s] employment" from five different employers is relevant or proportional to the needs of the case. See Gonzalez v. Springs of Lady Lake ALF, L.L.C., Case No. 8:10-cv-1693-T-17AEP, Doc. 43, 2011 WL 13302410 (M.D. Fla. Mar. 10, 2011) ("The burden is on Defendant to provide supporting documentation to substantiate such a broad search [of any and all records relating to the plaintiff’s employment with prior employers], as the relevancy is not apparent on its face."). Even assuming that certain documents from certain employers may be relevant and proportional, Defendant has made no attempt to limit the scope of each subpoena to such documents, or to otherwise tailor each subpoena to each employer to prevent requesting irrelevant information. Nor has Defendant sufficiently explained why certain information, such as Plaintiff’s current compensation, cannot be obtained directly from Plaintiff. Therefore, a protective order is warranted because the subpoenas are overbroad on their face. See id. (finding subpoenas to prior employers seeking "[a]ny and all records relating to employment" overbroad in an employment discrimination action). See also Baltazar v. Florida State Hosp., Case No. 4:04CV462-SPM/AK, Doc. 36 (N.D. Fla. May 27, 2005) (finding that there were "other less intrusive and burdensome means" for the defendant to obtain the information sought in a subpoena to the plaintiff’s current employer requesting his entire personnel file in an employment discrimination case). Accordingly, it is ORDERED:
For example, although information regarding Plaintiff’s current compensation may be relevant to her mitigation of damages, it does not appear that information regarding Plaintiff’s past compensation is relevant.
The Court finds these cases more persuasive than those cited in Defendant’s Response. (See Doc. 24.) Moreover, Baptiste is distinguishable because the defendant narrowed the scope of the documents sought by the subpoenas at issue before the Court ruled on the plaintiff’s motion for protective order. See Baptiste v. The Centers, Inc., Case No. 5:13-cv-71-Oc-22PRL, 2013 WL 3196758, at *1 (M.D. Fla. June 21, 2013).
1. The Motion for Hearing (Doc. 25) is DENIED.
2. The Motion for Protective Order (Doc. 21) is GRANTED.
Although the Motion for Protective Order is granted, expenses will not be awarded pursuant to Federal Rule of Civil Procedure 37(a)(5) because Defendant’s position was substantially justified.
3. The subject subpoenas are QUASHED.
4. Defendant shall immediately serve a copy of this Order on all of the subpoenaed entities and direct them not to produce any documents pursuant to the subpoenas. If any of the subject documents have already been produced, Defendant shall not view or use the documents in any way, and shall immediately return the documents to the producing entity.
DONE AND ORDERED.