Opinion
No. IP 98-C-0936-H/G.
01-21-1999
Tracy L. PERRY, Plaintiff, v. BEST LOCK CORPORATION, Defendant.
ORDER ON PLAINTIFF'S MOTION TO QUASH SUBPOENAS *1 Plaintiff Tracy L. Perry has moved to quash 19 non-party subpoenas that defendant Best Lock Corporation has served on plaintiff's present, past, and prospective employers. As explained below, plaintiff's motion to quash is granted. Plaintiff Perry worked for Best Lock for a little less than two years. She has sued Best Lock for racial discrimination and retaliation in employment under Title VII of the Civil Rights Act of 1964, and for violating the Family and Medical Leave Act of 1993. Best Lock has served subpoenas under Rule 45 of the Federal Rules of Civil Procedure on about 19 businesses, including plaintiff's current employer, her former employers, and businesses where she applied for work after her employment at Best Lock ended. The subpoenas demand production of any documents relating to plaintiff Perry. The subpoenas refer specifically to security and loss prevention files; reference checks; employee handbooks and policy and procedure manuals given to Perry in any interviews; any complaints, charges or claims for benefits made by or concerning Perry; any documents relating to her employment, including terms of employment, benefits, compensation, job descriptions, performance evaluations, criticisms of performance, complaints about performance; and, for good measure, any other documents that refer to Tracy Perry. Perry contends the broad sweep for documents held by so many former and prospective employers is not reasonably calculated to lead to the discovery of admissible evidence. Best Lock argues first that Perry has no standing to object to its discovery requests to others persons or entities. Perry does not assert that the documents sought contain legally privileged information about her. She has a right to argue, however, that the court should exercise its power to control the scope and cost of discovery in this case. See Fed.R.Civ.P. 26(b)(2) (court may limit frequency or extent of discovery if the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues). Also, discovery may impinge upon legitimate privacy interests without threatening the narrow areas of information and communication protected by legal privileges. If opposing parties did not have standing to object to subpoenas directed at non-parties, protection of such legitimate privacy interests would be left solely to the non-parties' willingness to spend money to fight the requests. Best Lock's standing argument is not persuasive. Best Lock also argues that Perry failed to comply with Local Rule 37.1 before filing her motion. Under Local Rule 37.1, with certain exceptions not relevant here, the court "may deny any discovery motion" unless counsel for the moving party files a separate statement showing that counsel has made a reasonable effort to reach agreement with opposing counsel on the disputed issues. The rule is an important measure for avoiding premature discovery disputes. It often tends to promote reasonable compromises between counsel without court intervention. The rule is not rigid, however. Perry has explained why she did not comply in this case: the volume of the requests, the immediate need to put the non-party targets of the subpoenas on notice that the subpoenas were being challenged, and the likely futility of a conference. The court appreciates the need to alert the targets of the subpoenas to the objections, and it is now reasonably apparent that a conference would not have produced agreement on these subpoenas. At this point there would be no point in requiring a conference and a renewed round of briefing on the subpoenas. The court therefore is exercising its discretion to excuse plaintiff's failure to comply with Local Rule 37.1. *2 Best Lock argues that it needs the subpoenaed records: (a) "to formulate any possible after-acquired evidence defense"; (b) "to investigate any previous disciplinary and performance problems of Plaintiff"; and/or (c) to "confirm if Plaintiff has a penchant for bringing frivolous claims against her employers." Such fishing expeditions probably fall within the broad scope of permissible discovery pursuant to Fed.R.Civ.P. 26(b)(1). A defense of after-acquired evidence may be relevant to limit remedies in an employment discrimination. It is also at least imaginable that Best Lock could turn up evidence of previous disciplinary or performance problems or prior frivolous claims that might be so compelling as to warrant use at trial under the standards of Fed.R.Evid. 403, 404(b), and 608(b) (addressing use of extrinsic evidence to impeach on collateral matters). The fact that one can imagine these subpoenas leading to the discovery of admissible evidence is not alone sufficient to justify their enforcement. Under Rule 26(b)(2) of the Federal Rules of Civil Procedure, the court has the power and duty to look more closely at the discovery requests. Rule 26(b)(2) was amended in 1993 to enable courts to "keep tighter rein on the extent of discovery." Advisory Committee Notes, 1993 Amendments to Rule 26. The committee explained:
The information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression. * * * The revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery....Id. If filing what is, by all appearances to the court, a fairly routine case alleging individual employment discrimination opens up the prospect of discovery directed at all previous, current, and prospective employers, there is a serious risk that such discovery can become "an instrument for delay or oppression." The broad scope of the "after-acquired evidence" defense was not intended to be an invitation to pursue discovery for the sole purpose of finding some basis for establishing such a defense. In the case recognizing the after-acquired evidence defense, McKennon v. Nashville Banner Co., the Supreme Court recognized the danger at issue here: "The concern that employers might as a routine matter undertake extensive discovery into an employee's background or performance on the job to resist claims under the Act is not an insubstantial one, but we think the authority of the courts to award attorney's fees, mandated under the statute, 29 U.S.C. §§ 216(b), 626(b), and in appropriate cases to invoke the provisions of Rule 11 of the Federal Rules of Civil Procedure will deter most abuses." 513 U.S. 352, 363 (1995) (age discrimination case). The district court's power under Rule 26(b)(2) provides another mechanism for avoiding such abuses. *3 The after-acquired evidence defense was developed to address situations in which the employer learns important information that would justify firing the employee and/or refusing to rehire the employee. The Court apparently assumed in McKennon that the information simply emerged in the otherwise ordinary course of the lawsuit and relevant discovery. The Court's comment about potential abuse clearly implies that discovery is not warranted for the sole purpose of developing a possible after-acquired evidence defense. Best Lock's other suggested needs for the subpoenas are also highly attenuated. Best Lock suggests that it wants to investigate any previous disciplinary and performance problems or other frivolous claims that plaintiff may have brought against other employers. These requests are at the very outer boundaries of possible admissible evidence, especially in view of Fed.R.Evid. 404(b), 403, and 608(b). This court would not readily permit a trial of Perry's claims against Best Lock to spin into a trial of other disputes with other employers. Under Rule 26(b)(2), this court must weigh the likely the burden or expense of the proposed discovery and its likely benefit. The court must take into account "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." The last factor is critical here. Best Lock has not identified any specific concerns or targets or reasons for its sweeping and intrusive discovery requests. It has not provided any information suggesting it has a specific basis for believing that an after-acquired evidence defense might be developed here. Thus, there is no specific reason before the court suggesting that the discovery Best Lock seeks from plaintiff's past, current, and prospective employers would have any material importance for resolving the issues presented in this case. On this record, therefore, the subpoenas look like nothing more than a fishing expedition, or, more accurately, an exercise in swamp-dredging and muck-raking. The resources of the parties are also relevant here. The subpoenas probably would not impose costs directly on Perry as great as would, for example, depositions of all 19 businesses. Nevertheless, the apparent disparity in resources and the defendant's ability to inflict additional costs on Perry as she pursues this case are relevant in determining whether to permit discovery that appears to have no more than marginal and attenuated relevance. The potential burdens of the proposed discovery are also substantial in terms of broadcasting to a large group of businesses that Best Lock views Perry as an untrustworthy troublemaker. Best Lock is entitled to its view. It is also entitled to obtain information through informal and voluntary channels. It is not entitled in this case to use the compulsory process of the United States courts to pursue the information it hopes exists. *4 Accordingly, the 19 non-party subpoenas issued by defendant are hereby QUASHED. Each party shall bear its own costs and fees associated with the motion to quash. So ordered.
In McKennon, the plaintiff testified in her deposition that she had removed confidential financial documents from her employer and had kept copies at home. 513 U.S. at 355. The Supreme Court's opinion and the lower court opinions are not specific about the line of questioning, but it is easy to imagine that routine and independently justifiable questions about relevant documents in plaintiff's possession could have turned up that information.