Perez v. Sauson et al, No. 1:2015cv03197 - Document 82 (E.D. Wash. 2016)
Court Description: ORDER Denying 38 Defendants' Motion for Protective Order. Signed by Judge Rosanna Malouf Peterson. (CV, Case Administrator)
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Perez v. Sauson et al Doc. 82 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff, 9 NO: 1:15-CV-3197-RMP ORDER DENYING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER v. 10 11 RAJIV SAUSON, and individual and SUNSHINE MOTEL INN, LLC, a Washington limited liability company, 12 Defendants. 13 14 BEFORE THE COURT is Defendants’ Motion for Protective Order, ECF 15 No. 38, filed by Defendants Sunshine Motel Inn, LLC, and Rajiv Sauson 16 (hereinafter collectively “Defendants”). Defendants request a protective order 17 quashing the deposition subpoena of Ashwini Sauson, wife of Defendant Rajiv 18 Sauson. Id. A telephonic hearing was held on September 15, 2016. The Court has 19 reviewed the relevant pleadings and is fully informed. 20 / / / 21 / / / ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 1 Dockets.Justia.com 1 2 BACKGROUND Plaintiff Thomas E. Perez, Secretary of Labor, United States Department of 3 Labor (hereinafter “Secretary”) filed his original Complaint on November 18, 4 2015, ECF No. 1, which brought claims under the Fair Labor Standards Act 5 (“FLSA”), 29 U.S.C. § 201-219. The Complaint sought a permanent injunction 6 restraining Defendants from violations of multiple Sections of the FLSA; an order 7 of unpaid wages and overtime compensation, as well as liquidated damages, for 8 affected workers; an award of the Secretary’s costs; and an order granting other 9 relief as necessary. ECF No. 1. On January 29, 2016, the Secretary amended his 10 Complaint as a matter of right and added a claim of Interference with the 11 Secretary’s Investigation. ECF No. 8. Both Complaints included an Exhibit A that 12 listed four employees identified by the Secretary as allegedly owed back wages 13 and liquidated damages. See ECF Nos. 1 and 8. 14 The Court entered its Bench Trial Scheduling Order on March 24, 2016, 15 which required that all discovery be completed on or before September 23, 2016. 16 ECF No. 14 at 4. On March 29, 2016, the Secretary served Defendants with 17 interrogatories and requests for production of documents. ECF No. 26, ¶ 3. The 18 Secretary received Defendants’ written discovery responses on May 5, 2016, and 19 Defendants’ initial production of documents on May 13, 2016. ECF No. 26, ¶ 5. 20 Following a dispute over the thoroughness of the response, the Secretary received 21 Defendants’ supplementary production of documents on June 20, 2016. ECF No. ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 2 1 26, ¶ 8. Among these responses, Ms. Sauson was listed as someone who “does 2 some bookkeeping.” ECF No. 56-2. The Secretary received a third amendment of 3 the initial disclosures from Defendants sometime after June 20, 2016,1 and listed 4 Ms. Sauson as an individual who may have relevant knowledge regarding 5 employment, hours worked, and compensation of the employees listed in Exhibit A 6 to the Secretary’s Complaint. ECF No. 56-3 at 3. 7 Mr. Sauson was deposed on July 13, 2016, in relation to a separate matter. 8 ECF No. 56-1. In this deposition, Mr. Sauson listed Ms. Sauson as the party 9 responsible for maintaining payroll records, maintaining tax records, holding the 10 responsibility for reporting workers to the Employment Security Department, and 11 handling all bookkeeping and tax filing for the relevant period. ECF No. 56-1 at 5. 12 In response to the discovery disclosures and Mr. Sauson’s deposition, on 13 August 15, 2016, the Secretary notified Defendants that he would be serving a 14 subpoena commanding testimony and production of records from Ms. Sauson. 15 ECF No. 38 at 2. 16 17 18 19 1 20 Amended Initial Disclosures, located in Exhibit 3 to Declaration of Hailey R. 21 McAllister. ECF No. 56. The Secretary only lists partial records and does not include the date for the Third ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 3 1 2 DISCUSSION Defendants assert in their initial motion that the subpoena for Ms. Sauson 3 should be quashed because the adverse spousal testimonial privilege bars Ms. 4 Sauson from providing potentially adverse testimony against her spouse, 5 Defendant Rajiv Sauson. ECF No. 38. In their reply, however, Defendants also 6 assert that the marital communications privilege bars disclosure of marital 7 communications between the Sausons. ECF No. 76. 8 Neither of the marital privileges applies. 9 FED. R. EVID. 501 provides that “the privilege of a witness [or] person . . . 10 shall be governed by the principles of the common law as they may be interpreted 11 by the courts of the United States in light of reason and experience.” The federal 12 common law recognizes two marital privileges: adverse spousal testimonial 13 privilege and marital communications privilege. See Trammel v. United States, 445 14 U.S. 40, 53, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980); United States v. Montgomery, 15 384 F.3d 1050, 1056 (9th Cir. 2004). These are separate privileges. The adverse 16 spousal testimonial privilege allows a spouse to refuse to testify adversely against 17 his or her spouse. United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir. 2006) 18 (citing Trammel, 445 U.S. at 53). The marital communications privilege: “(1) 19 extends to words and acts intended to be a communication; (2) requires a valid 20 marriage; and (3) applies only to confidential communications.” Montgomery, 384 21 F.3d at 1054 (citing United States v. Marashi, 913 F.2d 724, 729-30 (9th Cir. ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 4 1 1990)). The privilege is recognized to “obstruct[] the truth-seeking process” and is 2 construed narrowly. Id. 3 The adverse spousal testimonial privilege is limited generally to criminal 4 proceedings with a few distinct exceptions in which life or liberty are at risk. See 5 Hawkins v. United States, 358 U.S. 74, 77, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) 6 (“Adverse testimony given in criminal proceedings would, we think, be likely to 7 destroy almost any marriage.”); Trammel, 445 U.S. at 51 (“The Hawkins privilege 8 is invoked . . . to exclude evidence of criminal acts and of communications made in 9 the presence of third persons.”); cf. Gilles v. Del Guercio, 150 F. Supp. 864 (S.D. 10 Cal. 1957) (privilege extended to an immigration proceeding, which is distinctive 11 due to the nature of the risks to the potential deportee). The adverse spousal 12 testimonial privilege is unique in that “[n]o other testimonial privilege sweeps so 13 broadly.” Trammel, 445 U.S. at 51. The Trammel court opined that the stakes were 14 so high in criminal proceedings that only a marriage in “disrepair” would result in 15 testimony. Id. The current proceedings do not have these dire risks found in a 16 criminal proceeding that would support application of the adverse spousal 17 testimonial privilege. 18 The marital communications privilege is also inapplicable here because the 19 information sought was not intended to remain confidential. Montgomery, 384 F.3d 20 at 1056. Marital communications are privileged only when “because of its nature 21 or the circumstances under which it was made, [the communication] was obviously ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 5 1 not intended to be confidential.” Id. (quoting Wolfle v. United States, 291 U.S. 7, 2 14 (1934)). 3 The Secretary seeks to depose Ms. Sauson about her work in bookkeeping, 4 taxation, and record keeping of a business. These records are not the equivalent of 5 an intimate letter between a husband and a wife. See Montgomery, 384 F.3d at 6 1054 (personal letter between defendant and wife was the type of document 7 expected to be confidential). Numerous parties could be expected to have access 8 to the documents about which the Secretary seeks information, including but not 9 limited to other employees, corporate owners of the Sunshine Motel Inn, LLC, and 10 state or federal agencies that oversee business operation or taxation. Because the 11 information sought by the Secretary is not of the nature intended to be confidential 12 within a marriage, the marital communication privilege does not apply. 13 Defendants failed to demonstrate undue burden on Ms. Sauson. 14 Defendants further argue that even if the marital privileges do not apply, the 15 subpoena for Ms. Sauson should be quashed because it would be unduly 16 burdensome. ECF No. 38 at 5. Defendants assert Ms. Sauson has no managerial 17 role that would enable her access to the information requested. 2 Id. The discovery 18 19 20 21 2 Defendants further attempt to demonstrate undue burden by re-arguing the policy behind the marital privileges. ECF No. 76 at 7. As the Court has already addressed ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 6 1 materials and Mr. Sauson’s deposition testimony demonstrate otherwise. See ECF 2 No. 56, Ex. 1-3. Defendants identified Ms. Sauson as responsible for “some” 3 bookkeeping, and Mr. Sauson’s testimony supports an expansion of her knowledge 4 to include tax records, payroll records, and reporting to various governmental 5 agencies. ECF No. 56-1. This is significantly more bookkeeping than alluded to 6 in the discovery response. The Court finds the subpoena request reasonable in 7 light of the information presented. 8 9 10 11 12 According, IT IS HEREBY ORDERED that Defendants’ Motion for Protective Order, ECF No. 38, is DENIED. The District Court Clerk is directed to enter this Order and provide copies to counsel. DATED this 15th day of September, 2016. s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 13 14 15 16 17 18 19 20 the inapplicability of the marital privileges to Ms. Sauson’s subpoena, this will not 21 be further revisited. ORDER DENYING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER~ 7
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