Opinion
CIVIL ACTION No. 99-2489-CM.
March 7, 2001.
MEMORANDUM AND ORDER
Before the Court is a Motion for Protective Order and to Quash filed by nonparty, State of Kansas. (doc. 69). Pursuant to Fed.R.Civ.P. 45(c)(3)(A), the State of Kansas seeks an order to quash the subpoena duces tecum served on it by defendant City of Topeka on October 31, 2000. It also seeks a Rule 26(c) protective order against further efforts to discover the subpoenaed records. The subpoena duces tecum in dispute sought production of personnel files and records relating to Plaintiff's employment with the State of Kansas. The subpoena duces tecum expressly sought production of:
All personnel files, all disciplinary records including any grievance documents, transcripts, audio tapes, video tapes; all disciplinary appeal records including documents, transcripts, audio tapes, videotapes; all KHRC, EEOC, or U.S. Department of Justice discrimination charge files, documents, notes, memoranda; all notes, audio tapes, videotapes, of any meetings held with or regarding Joseph R. Ledbetter, and all correspondence to or from Joseph R. Ledbetter whether mailed or hand-delivered. . . . This Subpoena does not include privileged materials.
The State of Kansas argues that the subpoena duces tecum should be quashed by this Court because Rule 45(c)(3)(A) exempts the disclosure of privileged or other protected matter unless an exception or waiver applies. The State of Kansas asserts that the subpoenaed records are confidential and privileged under state law, specifically the Kansas Open Records Act, K.S.A. 45-221, and Kansas Administrative Regulations, K.A.R. 1-13-1a. The Kansas Open Records Act provides, in pertinent part:
Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
(4) Personnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment, exception that this exemption shall not apply to the names, positions, salaries and lengths of service of officers and employees of public agencies once they are employed as such.
K.S.A. 45-221(a)(4). Kansas Administrative Regulations also provide in pertinent part that "[e]xcept as otherwise provided in this regulation and the Kansas open records act, . . . information contained in each state employee's official personal record shall not be open to public inspection." K.A.R.1-13-1a(d).
Defendants oppose this motion on the basis that the State of Kansas has not asserted the existence of an evidentiary privilege to any of the categories of documents and things which were identified in the subpoena duces tecum. Defendants further argue that the basis on which the State of Kansas seeks to avoid producing subpoenaed materials is the asserted privacy enjoyed by plaintiff in personnel files by virtue of state statutes and state administrative regulations, which this Court has already held affords only confidentiality and not privilege and is insufficient to avoid production of the documents and things subpoenaed. Plaintiff has not responded to this motion or Defendants' response in opposition to the motion. Plaintiff, however, has filed a separate motion to Strike and Quash (doc. 72) all seven subpoenas served by defendant.
Federal Rule of Civil Procedure 45(c)(3)(A) provides that a court "shall quash or modify [a] subpoena if it . . . requires disclosure of privileged or other protected matter and no exception or waiver applies, or [if it] subjects a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iii) and (iv). The party seeking a protective order or moving to quash a subpoena has the burden to demonstrate good cause and/or the privilege to be protected . Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996).
In federal question cases with pendant state law claims, such as this case, the federal court must look to the federal common law regarding the existence of privileges. Fed.R.Evid. 501; Ali v. Douglas Cable Communications, Ltd. Partnership, 890 F. Supp. 993, 994 (D.Kan. 1995). In this district, the courts have specifically held that state statutes creating privileges as to certain records or documents are not controlling in federal question cases. Ali, 890 F. Supp. at 994. Furthermore, in Mason v. Stock, 869 F. Supp. 828, 831 (D.Kan. 1994), this Court held that the Kansas Open Records Act, K.S.A. 45-221(4) did not establish the existence of privilege in personnel records under Rule 45(c)(3)(A).
In this case, neither of the specific state statutes asserted, K.S.A. 45-221(a)(4) nor K.A.R. 1-13-1a(d), creates a recognizable privilege under Rule 45(c)(3)(A) as to Plaintiff's personnel records. The Court holds that the State of Kansas is not entitled to have the subpoena duces tecum quashed pursuant to Rule 45(c)(3)(A).
The State of Kansas also seeks a Rule 26(c) protective order against further efforts to discovered the subpoenaed records. Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense." Due to the inherent confidential nature of the produced documents, the Court will order Plaintiff's employment records be produced pursuant to a protective order limiting the parties' use of the documents to purposes directly related to this litigation and prohibiting their disclosure to anyone outside this litigation.
For the foregoing reasons, the State of Kansas' Motion for Protective Order and to Quash (doc. 69) is granted in part and denied in part. Within 15 days of this Order, the State of Kansas shall produce and permit inspection and copying of the information identified in Defendant's October 31, 2000 subpoena duces tecum by defendant City of Topeka. All production ordered herein shall be produced pursuant to the following protective order: The parties shall use the documents only for purposes of this litigation and shall not disclose them to anyone outside this litigation.
IT IS SO ORDERED.