Opinion
No. 01-2493-KHV
July 26, 2002
ORDER
Pending before the Court is Defendant's Motion to Quash Subpoena (doc. 16). The subpoena at issue demands the Equal Employment Opportunity Commission ("EEOC") produce the investigative file relating to the underlying EEOC charge made by Plaintiff against Defendant in this case.
Defendant moves to quash the subpoena on grounds that (1) the subpoena is not valid because it is not signed by a court officer; and (2) confidential faculty personnel files are among those documents to be produced and these documents are confidential in nature. For the reasons stated below, Defendant's Motion will be denied.
A. Does Defendant Have Standing to Move to Quash the Subpoena?
Before the Court analyzes the merits of Defendant's objections to the subpoena and its arguments in support of the Motion to Quash, the Court must first determine whether Defendant has standing to move to quash the subpoena. The subpoena were not served on Defendant but rather on a nonparty. Generally speaking, a party to the lawsuit does not have standing to quash a subpoena served on a nonparty. A motion to quash a subpoena "may only be made by the party to whom the subpoena is directed except where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena."
Johnson v. Gmeinder, 191 F.R.D. 638, 640 n. 2 (D.Kan. 2000); Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 635 (D.Kan. 1999).
Id. (quoting Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D.Kan. 1995)).
Thus, for Defendant to bring this motion, it must have a personal right or privilege with respect to the subject matter of the documents requested in the subpoena. The subpoena is directed to the EEOC and seeks the investigative file relating to the underlying EEOC charge made by Plaintiff against Defendant in this case. Defendant asserts the EEOC investigative file contains confidential personnel files of faculty employed by Defendant, and that Defendant "has a Memorandum of Agreement with its faculty that provides all personnel records of the faculty are confidential and cannot be released without valid subpoena." Defendant further argues that "[a]ny disclosure of these confidential personnel files would be a detriment to the Defendant's employees."
Defendant's Motion to Quash at pp. 2-3 (doc. 16).
Id.
Based on Defendant's assertions, the Court finds Defendant has a personal right with respect to the information contained in EEOC investigative file. Thus, the Court holds Defendant has standing to move to quash the subpoena served on the EEOC and to assert objections to the document requests contained therein.
Defendant's Procedural Objection to the Subpoena
Defendant objects to the subpoena on procedural grounds, arguing that the subpoena is invalid because it is signed by Plaintiff — who represents himself in this action pro se — and not by an officer of the Court as required by Rule 45. Plaintiff denies he signed the subpoena.
Although the signature of the "issuing officer" at the bottom of the subpoena is not legible, the signature does not appear to be Plaintiff's. This conclusion is based on pleadings previously filed with this Court and signed by Plaintiff: the two signatures are readily distinguishable. Notwithstanding this information, the issuing officer is identified in typeface below the signature line as "Wei-Kang Zhou."
Although the Court is unable to identify who signed the subpoena, the Court is persuaded that the signature is not Plaintiff's. Accordingly, the signature very well could be that of the district court clerk, as permitted by federal rule. As the party who moves to quash the subpoena, Defendant has the burden to demonstrate that the subpoena is procedurally invalid. Based on the facts presented, Defendant has failed to bear its burden.
See Fed.R.Civ.P. 45(a)(3) ("The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena.").
Confidentiality
Defendant also objects to the subpoena on the grounds it seeks private and confidential information of its employees. Defendant, however, fails to recognize that a party may not rely on the confidential nature of documents as a basis for objection, inasmuch as "[c]onfidentiality does not equate to privilege." Thus, the Court will overrule Defendant's confidentiality objection to the subpoena.
Hill v. Dillard's, Inc., 2001 WL 1718367, *4 (D.Kan.) (quoting Folsom v. Heartland Bank, No. 98-2308-GTV, 1999 WL 322691, *2 (May 14, 1999)). See also Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979)) ("there is no absolute privilege for . . . confidential information").
Although the documents at issue are not shielded from discovery on the basis of confidentiality, it is true that a party may request the court enter a protective order pursuant to Fed.R.Civ.P. 26(c) as a means to protect the confidential information from disclosure to individuals or entities not connected with the litigation. The decision whether to enter a protective order is within the court's discretion. Rule 26(c) nevertheless requires that the party seeking the protective order establish "good cause" for the protective order. In determining whether good cause exists to issue a protective order that prohibits partial or complete dissemination of documents or other materials obtained in discovery to non-parties, "the initial inquiry is whether the moving party has shown that disclosure of the information will result in a `clearly defined and very serious injury.'"
Hill, 2001 WL 1718367, at *4.
See Thomas v. Int'l Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995).
Johnson v. Gmeinder, 191 F.R.D. 638, 642 (D.Kan. 2000).
Zapata v. IBP, Inc., 160 F.R.D. 625, 627 (D.Kan. 1995) (quoting Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 480 (S.D.N.Y. 1982)) (internal quotations omitted).
In its briefing, Defendant is not specific regarding the type of prospective injury that may result if the requested documents are produced. Without such information, the Court is not in a position to determine whether the requisite good cause exists to issue a protective order prohibiting dissemination of the EEOC investigative file. The Court does, however, recognize that at least the potential for injury exists if the alleged confidential documents are disclosed to non-parties. Accordingly, and in the interest of justice, the Court will direct the parties to submit an agreed protective order protecting against disclosure of the alleged confidential documents/information to non-parties.
See Hill, 2001 WL 1718367, at *5 (directing parties to attempt to jointly draft a protective order to prevent disclosure of requested documents to non-parties).
Within ten (10) days of the date of filing of this Order, counsel for the parties shall confer and attempt to agree upon such a protective order. If the parties are unable to reach an agreement, the Court will allow Defendant five (5) days thereafter to move for a protective order protecting the confidentiality of the documents/information from disclosure to non-parties. Plaintiff shall have five (5) days after service of the motion for protective order to respond.
Defendant's Motion to Quash is denied.
IT IS SO ORDERED.