Opinion
Civil Action No. 3:02-CV-2340-H
August 27, 2003
ORDER
Before the Court is Defendant Alejandro Suarez's Emergency Motion for Protective Order Regarding Redaction of Portions of Official Personnel/Civil Service File, filed August 21, 2003. Based on the motion and the applicable law, the Court finds that the motion should be GRANTED, in part, and DENIED, in part.
I. BACKGROUND
On July 11, 2003, the District Court referred Plaintiff's Motion to Compel Production of Documents from Defendant City of Terrell to the undersigned United States Magistrate Judge for hearing, if necessary, and determination. Pursuant to the July 15, 2003 Order of the Court, the City of Terrell ("City") and Jessica Frierson ("Plaintiff") filed their Joint Submission on Discovery Dispute, wherein they set forth their arguments regarding whether City should produce the requested documents. The City explained that Defendant Alejandro Suarez ("Officer") had two personnel files: (1) the official personnel file, and (2) a departmental personnel file. The City argued that Officer's official personnel file "may not be disclosed absent written authorization from an employee or a court order" pursuant to TEX. LOCAL GOV'T CODE ANN. § 143.089(f). The City also argued that the request for Officer's official personnel file sought "documents which have no relevance to the pending action. The request is not reasonably calculated to lead to the discovery of admissible evidence."
The Court held a hearing on the Joint Submission on July 28, 2003. Although the discovery dispute was between Plaintiff and the City, Officer attended the hearing and argued that he should be allowed to inspect his official personnel file before it is produced to Plaintiff to determine if it contains any documents that would implicate his Fifth Amendment privilege. The Court agreed and ordered Officer to review the file to determine if it contained any incriminating information. The Court further ordered the City to produce the file to Plaintiff after Officer's review and pursuant to an agreed protective order no later than 5:00 p.m. on August 21, 2003. The Court issued a written Order to that effect on August 11, 2003.
Officer's counsel first reviewed the file on the afternoon of August 18, 2003 — three days before the deadline for production. (Mot. at 2.) Counsel admits that the file does not contain documents that would implicate Officer's Fifth Amendment privilege. Id. However, counsel alleges that during its review, it discovered that the file contains "personal and private financial, health, marital, and other identifying information on both" Officer and his wife. Id. Late in the afternoon on August 21, 2003 — approximately three hours before the City's production was due — Officer's counsel hand-delivered the instant motion for an emergency protective order. However, also on August 21, 2003, after Officer's motion was delivered, the City hand-delivered a letter stating that it would produce Officer's official personnel file to Plaintiff by 5:00 p.m. as ordered. Given the Officer's arguments, the Court may decide the instant motion without a response.
II. ANALYSIS
A. Standard for Protective Order"Federal Rule of Civil Procedure 26(c) authorizes a federal court `[u]pon motion by a party . . . from whom discovery is sought, . . . and for good cause shown' to enter a protective order prohibiting or limiting discovery." Hussey v. State Farm Lloyds Ins. Co., ___ F. Supp.2d ___, 2003 WL 21919357, at *4 (E.D. Tex. Aug. 11, 2003). "`Good cause' exists when justice requires the protection of `a party or person from any annoyance, embarrassment, oppression, or undue burden or expense.'" Id. (quoting FED. R. CIV. P. 26(c))). The Court is required to balance the competing interests of allowing discovery and protecting the parties from undue burdens. See id.
B. Officer's Objections
Officer argues that the Court should issue a protective order to protect sensitive documents in his official personnel file from being disclosed to Plaintiff. (Mot. at 1-5.) Officer contends that he has shown "good cause" because the objectionable items are private and neither "germane" nor "relevant to any of the claims in this case, and constitutes an unwarranted intrusion" into his and his wife's privacy. Id. at 4-5.
As an initial matter, Officer specifically requested that he have a chance to review his file to determine if it contained information that would implicate his Fifth Amendment privilege. Officer did not assert that his file contained other information requiring Court protection. Consequently, Officer waived his current arguments by not raising them previously. Cf. In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) ("We readily agree with the district court that as a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived."), cited in Leboeuf v. JAG Const. Services, Inc., 2001 WL 1298693, at* 1 (E.D. La. Oct. 24, 2001). Notwithstanding Officer's failure to raise these arguments previously, the Court will address his arguments that his and his wife's personal information is not "germane or relevant to any of the claims in this case, and constitutes an unwarranted intrusion into the personal affairs" of him and his wife. (Mot. at 5.)
1. Relevance
Plaintiff asserts a Title VII claim against the City. (Compl. at 10.) "The imposition of unnecessary limitations on discovery is especially frowned upon in Title VII cases." Wilson v. Martin County Hosp. Dist., 149 F.R.D. 553, 555 (5th Cir. 1993) (citing Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983)). "The controlling case on the discoverability of personnel file contents is Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991)." Id. Coughlin explains that relevance is construed broadly in federal civil discovery:
Federal Rule of Civil Procedure 26(b) permits `discovery regarding any matter not privileged, which is relevant to the subject matter in the pending action.' Discoverable information is not limited to admissible evidence, but includes anything `reasonably calculated to lead to the discovery of admissible evidence.' Courts have traditionally construed `relevance' broadly: information is relevant if it `encompass[es] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'Coughlin, 946 F.2d at 1159 (footnotes omitted).
In Coughlin, two police officers brought suit in federal district court "under 42 U.S.C. § 1983, alleging that they had been impermissibly discharged in retaliation for their political activities and affiliations in violation of the First and Fourteenth Amendments." Id. at 1156. During pretrial proceedings, the officers "requested production of the entire personnel files — including complaints, internal affairs and disciplinary files, but excluding all identification of complainants or confidential witnesses — for various past and/or present employees" of the police department. Id. at 1158. The police department objected, and the district court limited discovery "to files evidencing removal or disclosure of confidential material — misconduct similar to the allegations against the plaintiffs — over approximately a two-year period. Id. After a directed verdict in the defendant's favor, the police officers appealed.
On appeal, the police officers argued that the district court erred in limiting the scope of discovery and thereby prevented them from proving that the reason for their dismissals was pretextual. See id. The police officers also argued that such personnel files were public records under state law, except for any information regarding confidential sources. Id. The defendant argued that the personnel file contained confidential police files regarding an investigation that are discoverable only after weighing their relevancy against the government's interest in maintaining confidentiality. Id.
The Fifth Circuit reasoned that "[a]ll or some parts of these personnel files could be central to the plaintiffs' effort to prove pretext. The information contained therein may be in the exclusive control of the opposing party." Id. at 1159. The Fifth Circuit compared the case to Title VII litigation, in which a plaintiff must also prove pretext and explained that in Title VII cases, "courts have customarily allowed a wide discovery of personnel files" to prove pretext. Id. (citing Trevino v. Celanese Corp., 701 F.2d 397, 405-06 (5th Cir. 1983); Marshall v. Westinghouse Electric Corp., 576 F.2d 588, 592 (5th Cir. 1978) (ADEA claim); and Burns v. Thiokol Chemical Corp., 483 F.2d 300, 303-07 (5th Cir. 1973)). Pretext could be proved through circumstantial evidence such as that which would be discovered in fellow officers' personnel files. Id. "The district court appears to have limited discovery because it considered these files irrelevant to the plaintiffs' freedom of speech case." Id. at 1160. The Fifth Circuit reversed the district court's determination that the personnel files were not discoverable because they were irrelevant. Id.
Here, Officer makes conclusory objections that diverse categories of documents in his official personnel file, including his marital, financial, and health information, are not "germane" or "relevant" to this case. (Mot. at 5.) Because Plaintiff asserts claims under Title VII and 42 U.S.C. § 1983, the scope of discovery is broad: "The imposition of unnecessary limitations on discovery is especially frowned upon in Title VII cases." Wilson, 149 F.R.D. at 555. Indeed, courts have customarily allowed wide discovery of personnel files to prove pretext in Title VII cases, and the Fifth Circuit reversed a district court's decision to limit the discovery of police officers' personnel files based on relevance. See Coughlin, 946 F.2d at 1159-60. "Moreover, courts within this circuit have noted an apparent trend in this country to permit disclosure of law enforcement departments' internal affairs investigative reports and files." Walters v. Breaux, 200 F.R.D. 271, 273 (W.D.La. Apr. 18, 2001) (citing Tyner v. City of Jackson, Mississippi, 105 F.R.D. 564, 566 (S.D. Miss. 1985); Dinh v. Fenner, 1987 WL 9817 (E.D.La. 1987)). Thus, Officer's official personnel file is relevant to this case and may lead to the discovery of admissible evidence on such an issue as pretext. Officer has not shown good cause to depart from the broad interpretation of relevance in a Title VII case.
2. Privacy
Officer also argues that producing his social security number, his health information, his financial information, and other personal would be an "unwarranted intrusion" into his and his wife's privacy. (Mot. at 5.) Although Plaintiff asserts claims under both federal and state law, "all of the circuits that have directly addressed this issue have held that the federal law of privilege governs on issues of discoverability and/or admissibility," even when the evidence sought is relevant to a pendent state claim. See Walters, 200 F.R.D. at 274.
Under federal law, "personnel and medical files are protected from disclosure if disclosure would constitute a clearly unwarranted invasion of the individual's personal privacy." Id. (citing 5 U.S.C. § 552(b)(6)). "In order for information to be within subsection (b)(6), the information must be personnel, medical, or similar files and a balancing of individual privacy interests against public interest in disclosure must reveal that disclosure of the information would constitute a clearly unwarranted invasion of personal privacy." Id. (citing Miami Herald Pub. Co. v. U.S. Small Business Administration, 670 F.2d 610 (5th Cir. 1982)). "Moreover, in applying the exemption, the court must balance the privacy interest or personal nature of information sought against the public interest that would be served by disclosure." Id. (citing Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir. 1979)). "Finally, under 42 U.S.C. § 405(c)(2)(c) (viii) (I) social security account numbers and related records that are obtained or maintained by `authorized persons' shall be confidential, and no `authorized person' shall disclose any such social security account number or related record. The term `authorized person' means an officer or employee of any political subdivision of a State, or agency of a political subdivision of a State, and any other person (or officer or employee thereof), who has or had access to social security account numbers or related records." Id. (citing 42 U.S.C. § 405(c)(2)(c) (viii) (III)).
In Walters, the defendants were police officers who argued that their privacy interests would be violated by producing their confidential information such as salaries, benefits, social security numbers, home addresses, home telephone numbers, and similar information that is protected from disclosure under various federal and state statutes absent waiver. Id. at 273. The Walters court reasoned that, although the officers had raised some legitimate privacy and confidentiality concerns, those concerns were insufficient to prevent discovery when they could be protected by an appropriate protective order. See id. at 274. Accordingly, the Walters court ordered that all documents be produced, but objectionable information be redacted "to exclude any medical information, social security numbers, home addresses and home telephone numbers contained in the records before they are provided to counsel." Id. (citing Avondale v. N.L.R.B., 90 F.3d 955, 959 (5th Cir. 1996) (explaining that redaction as a means of protecting a private individual's interests is permissible, provided that the details sought to be deleted are reasonably segregable. . . .); Chauvin v. Lee, 2000 WL 567006, at *3 (E.D.La. May 8, 2000) (redacting social security numbers, home addresses and home telephone numbers contained in law enforcement personnel and internal affairs files prior to production); D'Antoni v. Roach, 1997 WL 627601, at *4 (E.D.La. Oct. 10, 1997) (redacting social security numbers, home addresses, home telephone numbers and medical information contained in law enforcement personnel and internal affairs files prior to production)).
Officer alleges that his official personnel file also contains his and his wife's social security numbers, his medical/surgical information, home addresses, home telephone numbers, and other personal information. (Mot. at 4-5.) The City has already produced Officer's official personnel file to Plaintiff. The Court ordered that the information be produced pursuant to the August 22, 2003 Stipulated Protective Order. This protective order prevents Plaintiff's unauthorized use of Officer's information, but it does not restrict Plaintiff's access to Officer's and his wife's private information. According to Walters and the authorities cited therein, Officer has a privacy interest in his social security number, medical/surgical information, home address, and telephone number. Officer's wife likewise has a privacy interest in her social security number and medical information.
Because Officer filed this motion only hours before the City was ordered to produce the official personnel file to Plaintiff, Officer's official personnel file has already been produced. Thus, it must be returned to the City in order for the objectionable portions to be redacted. Upon return, the City shall redact Officer's and his wife's medical/surgical information, social security numbers, home addresses, and home telephone numbers only. After redaction, the entire file, including redacted documents, shall be returned to Plaintiff.
III. CONCLUSION
For the foregoing reasons, Defendant Alejandro Suarez's Emergency Motion for Protective Order Regarding Redaction of Portions of Official Personnel/Civil Service File is hereby GRANTED, in part, and DENIED, in part. It is hereby
ORDERED that Plaintiff shall return Officer's official personnel file to the City no later than five calendar days from the date of this Order. It is further
ORDERED that the City shall redact only those documents in the file that contain Officer's or his wife's medical/surgical information, social security numbers, home addresses, and home telephone numbers. It is further
ORDERED that the City shall return the entire file, including the redacted documents, to Plaintiff no later than five calendar days from the date that Plaintiff returns the official personnel file to the City.