Opinion
3:18-cv-00850-HZ
05-14-2023
DR. RUPA BALA, an individual, Plaintiff, v. OREGON HEALTH AND SCIENCE UNIVERSITY, an Oregon public corporation; DR. CHARLES HENRIKSON, an individual; DR. JOAQUIN CIGARROA, an individual, Defendants.
OPINION & ORDER
MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Defendants move to reopen discovery in this case to subpoena documents related to Plaintiff's subsequent employment following her termination from Defendant Oregon Health and Science University (“OHSU”). For the following reasons, the Court denies the motion.
BACKGROUND
Plaintiff sued Defendants on May 15, 2018, alleging discrimination and retaliation during her employment with Defendant OHSU, which ended on or about June 19, 2017. Compl. ¶ 38. On March 31, 2021, Magistrate Judge You ruled that discovery in this case was complete other than a short reopening of a single deposition. Order, ECF 101. The parties then briefed cross-motions for summary judgment. ECF 118, 130. Judge You entered a Findings and Recommendation (“F&R”) on those motions in August 2022. ECF 149. In December 2022, this Court adopted the F&R in part and declined to adopt it in part. Order, ECF 159. The case is set for trial in April 2024. ECF 170.
During discovery, Defendants served Plaintiff with requests for production seeking documents related to Plaintiff's employment after her termination from OHS U.Shaddy-Farnsworth Decl. ¶ 4, ECF 168. Since the close of discovery, Plaintiff has continued to supplement her production. In January 2022, she produced an employment agreement between Plaintiff and United Health Services (“UHS”) dated August 6, 2021. Id. ¶ 7, Ex. B. In August 2022, after Judge You entered the F&R, counsel for Defendants notified Plaintiff's counsel that they intended to subpoena documents related to Plaintiff's employment with UHS, and sent a copy of the subpoena. Id. ¶ 8. Plaintiff replied that she intended to move to quash the subpoena. Id. ¶ 9. The parties conferred, and Plaintiff agreed to produce some portion of the documents Defendants requested. Id. ¶ 10; Pl. Resp. 3-4, ECF 169. UHS refused to produce the documents without a subpoena. Shaddy-Farnsworth Decl. ¶ 11; Pl. Resp. 3-4.
In January 2023, Plaintiff produced additional documents related to her employment with UHS, as well as her W-2 forms for 2019, 2020, and 2021. Shaddy-Farnsworth Decl. ¶ 12. In February 2023, Plaintiff produced an offer letter and employment agreement between Plaintiff and Citrus Cardiology Consultants signed October 26, 2022. Id. ¶ 13. Defendants seek to reopen discovery to subpoena documents from UHS only. Def. Mot., ECF 167.
Defendants state that they “do not intend to subpoena records from Citrus Cardiology at this time, but request that the Court permit Defendants to seek discovery from Citrus Cardiology (or another subsequent employer) at a later date in the future.” Def. Mot. 9 n.3. That request is denied for the same reasons Defendants' request with respect to UHS is denied.
STANDARDS
“District courts have broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16.” Hunt v. Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (internal quotations omitted). Once the district court issues a scheduling order under Rule 16, the case “schedule may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). District courts consider the following six factors when ruling on a motion to amend a Rule 16 scheduling order to reopen discovery:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the nonmoving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017).
DISCUSSION
Defendants argue that most of the six factors weigh in favor of reopening discovery. Plaintiff counters that the discovery Defendants seek is prejudicial and disproportionate to the needs of the case. The Court concludes that Defendants have not shown good cause to reopen discovery.
Four of the six factors are easily resolved. The parties agree that trial is not imminent. Def. Mot. 7; Pl. Resp. 2. Defendant's request is opposed. Plaintiff does not suggest that Defendants were not diligent while discovery was open. Defendants seek information about Plaintiff's post-discovery employment. Similarly, the discovery sought was not foreseeable because Plaintiff's post-discovery employment could not be predicted. Thus, factors one, four, and five weigh in favor of reopening discovery, and factor two weighs against reopening discovery.
The third and sixth factors are less straightforward, and both weigh against reopening discovery under the terms Defendants propose. With respect to the third factor, prejudice, Defendants argue that Plaintiff would not be prejudiced because discovery would be reopened for a limited purpose, and they point out that Plaintiff previously agreed to obtain her employment records from UHS. Def. Mot. 8. Plaintiff asserts that she will be prejudiced because Defendants' subpoena to UHS is overbroad and will likely lead Defendants to seek to depose Plaintiff about her employment at UHS. Pl. Resp. 3. Defendants do not ask to reopen Plaintiff's deposition, but they reserve the right to do so. Def. Mot. 2 n.1. Defendants also request permission to seek discovery from Plaintiff's other subsequent employers in the future. Def. Mot. 9 n.3. Defendants' request to reopen discovery is not as limited as they suggest. The prejudice to Plaintiff is somewhat speculative, but ultimately Defendants have not justified the discovery they seek even if discovery were still open.
Defendants have not made an adequate showing on the sixth factor, relevance. Plaintiff attaches a copy of Defendants' proposed subpoena to UHS. Pl. Resp. Ex. 1. The subpoena seeks “[a]ny and all records and documents that concern, refer or relate to Dr. Rupa Bala . . . from 2012 to the present[.]” Id. at 4. Other district courts have concluded that a defendant employer's request for a former employee's entire personnel file from other employers is overbroad. E.g., Lewin v. Nackard Bottling Co., No. CV 10-8041-PCT-FJM, 2010 WL 4607402, at *1 (D. Ariz. Nov. 4, 2010). The request here is even broader. The Court agrees with Plaintiff that the subpoena is overbroad.
Courts have granted defendant employers' requests to seek discovery of the plaintiff's records with other employers where the requests are tailored to the claims and defenses in the case. E.g., Abu v. Piramco Sea-Tac Inc., No. C08-1167RSL, 2009 WL 279036, at *2 (W.D. Wash. Feb. 5, 2009) (records relevant to plaintiff's credibility and claim for emotional distress damages); Tran v. Wells Fargo Bank, N.A., No. 3:15-CV-00979-BR, 2017 WL 1234131, at *3 (D. Or. Jan. 20, 2017) (records relevant to plaintiff's allegations of damage to his career); Ramirez v. Wynn Las Vegas, LLC, No. 219CV01174APGDJA, 2020 WL 10731761, at *3 (D. Nev. Jan. 31, 2020) (records relevant to mitigation defense).
Defendants assert that Plaintiff's UHS records are relevant to damages and Defendants' stated legitimate, non-discriminatory reasons for their actions with respect to Plaintiff. Def. Mot. 10. But Defendants do not explain how the UHS records are relevant to damages. See id. The Court agrees with Plaintiff that Defendants do not need to subpoena any records from UHS for reasons related to lost wages, as Plaintiff has provided her tax records showing her earnings. Pl. Resp. 5. See also Paananen v. Cellco P'ship, No. C08-1042 RSM, 2009 WL 2057048, at *3 (W.D. Wash. July 15, 2009) (denying defendant employer's motion to compel production of records from plaintiff's subsequent employers where plaintiff already provided tax records). To the extent that the documents sought may be relevant to damages in some other way, Defendants have not explained what types of documents are relevant or how they are relevant to damages.
Defendants' second reason is also insufficient. Defendants have not adequately explained how Plaintiff's performance at a different employer approximately four years after her termination from OHSU is relevant to her performance at OHSU. To the extent that Defendants seek to use Plaintiff's performance at UHS to justify the adverse actions alleged to have taken place in this case, such evidence would most likely constitute inadmissible character evidence under Federal Rule of Evidence 404(b). See Lewin, 2010 WL 4607402, at *2. It is true that evidence need not be admissible to be discoverable. Fed.R.Civ.P. 26(b)(1). But given the breadth of the subpoena and the insufficient explanation of the relevance of the records sought, the burden or expense of the discovery sought outweighs its likely benefit. See id. See also Oregon Int'l Air Freight Co. v. Bassano, No. 3:21-CV-01480-SB, 2022 WL 3357699, at *1 (D. Or. July 5, 2022) (noting that the scope of discovery of nonparties by subpoena is the same as the scope of discovery of parties under Rule 26(b)). The Court would not approve the subpoena in its current form if discovery were still open. Defendants have not established good cause to reopen discovery.
CONCLUSION
The Court DENIES Defendants' Motion to Reopen Discovery [167].
IT IS SO ORDERED.