-LRL Cannata et al v. Wyndham Worldwide Corporation et al, No. 2:2010cv00068 - Document 205 (D. Nev. 2011)
Court Description: ORDER Granting 184 Second Emergency for an Interim Sequestration Order and to Quash Third Party Subpoenas. FURTHER ORDERED that Defendants' counsel shall forthwith inform the subpoenaed parties that the court has quashed the subpoenas at issu e, that they are not to respond to the subpoenas. Defendants' counsel shall forthwith destroy any documents and copies of documents counsel has received, and inform plaintiffs' counsel which past and present employers produced information p ursuant to these subpoenas; and defendants' counsel shall file a certification with the court of their compliance with this Order. FURTHER ORDERED that plaintiffs' request for an award of attorney fees is GRANTED. Defendant shall pay the re asonable expenses, including attorney's fees and costs, incurred by plaintiffs in making this motion. Plaintiffs will have ten days from the date of this order to file a detailed affidavit of fees and costs. Defendant will have ten days thereafter to file a response to plaintiffs' affidavit of fees and costs. Signed by Magistrate Judge Lawrence R. Leavitt on 8/25/11. (Copies have been distributed pursuant to the NEF - MMM)
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-LRL Cannata et al v. Wyndham Worldwide Corporation et al Doc. 205 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 GENINE CANNATA, et al., 8 9 10 11 12 ) ) Plaintiffs, ) ) vs. ) ) WYNDHAM WORLDWIDE ) CORPORATION, et al., ) ) Defendants. ) _______________________________________) Case No.: 2:10-cv-00068-PMP-LRL ORDER 13 14 Before the court is plaintiffs’ Second Emergency Motion for an Interim Sequestration Order 15 and to Quash Third Party Subpoenas (#184). The court has reviewed the motion (#184) and exhibits, 16 defendants’ Opposition (#191), and plaintiffs’ Reply (#199). Background 17 18 This case arises from plaintiffs’ allegations that they were subjected to widespread sexual 19 harassment and discrimination in the workplace while they were employed by defendant Wyndham 20 Worldwide Corporation (“Wyndham”). The parties and the court are familiar with the factual and 21 procedural background of this case. The court, therefore, will only discuss the background that is 22 relevant to the instant motion. 23 On February 3, 2011, plaintiffs filed a Motion for Protective Order and to Quash Third Party 24 Subpoenas (#89). Plaintiffs requested a court order to quash sixty-six third-party subpoenas to 25 plaintiffs’ pre and post-Wyndham employers on grounds that the subpoenas were overbroad in scope 26 of information sought, requested information that is irrelevant to the case, asked for information that AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 defendants already possessed, were designed to harass and embarrass, and sought information that is 2 protected as private. In general, defendants’ argued that their first set of subpoenas properly sought 3 information relevant to five issues: (1) pre-Wyndham job performance because plaintiffs allegedly put 4 such employment at issue; (2) post-Wyndham job performance for mitigation of damages; (3) after- 5 acquired evidence of wrongdoing that would have led to a legitimate discharge; (4) credibility; (5) past 6 job performance to refute their failure to promote claims and show their true motivations for ending 7 their employment with Wyndham. On March 31, 2011, the court issued an Order (#152) granting 8 plaintiffs’ motion. The court found that defendants’ contentions lacked support and quashed all sixty- 9 six subpoenas, which called for the following: 10 11 Please produce any and all records in your possession, custody and/or control that refer, relate, or pertain to [plaintiff], including, but not limited to, the entire personnel file, application, resume, payroll records, performance evaluations, correspondence, notes, and reasons for termination, which you have in your possess, control or custody. 12 Order (#152) at 1. Defendants subsequently filed a Motion for Clarification of the Court’s Order 13 (#160) asking for guidance on reissuing subpoenas consistent with the court’s previous findings. The 14 court denied this motion as an improper request for an advisory opinion. Min. Order (#175). 15 Defendants reissued subpoenas to plaintiffs’ pre and post-Wyndham employers that they 16 attempted to narrowly tailor: 17 18 19 20 Pre-Wyndham employers: Please produce documents of [Plaintiff], Social Security Number: _____ , DOB: _____ , relating to job performance, disciplinary actions and terminations, which you have in your possession, control or custody. This request is limited to [Plaintiff’s] employment during the years _____ - _____. 22 Post-Wyndham employers: Please produce documents of [Plaintiff], Social Security Number: _____, DOB: _____, relating to compensation, job performance, disciplinary actions and terminations, which you have in your possession, control or custody. This request is limited to [Plaintiff’s] employment during the years _____ _____. 23 Defs.’ Opp’n (#191) at 4 (emphasis added). Plaintiffs’ instant motion argues that the reissued 24 subpoenas suffer from the same deficiencies as the original subpoenas. During the time period set for 25 the parties to brief the motion, the court issued a Minute Order (#186) that stayed compliance with the 26 reissued subpoenas pending further order of the court. In addition, the court ordered defendants to 21 AO 72 (Rev. 8/82) 2 1 sequester and make no use of any documents produced in response to the disputed subpoenas and to 2 notify plaintiffs’ counsel of all such documents productions which they received. For the following 3 reasons, plaintiffs’ motion will be granted. 4 Discussion 5 Pursuant to Rule 45(c)(3) of the Federal Rules of Civil Procedure, the court must quash or 6 modify a subpoena if it “requires disclosure of privileged or other protected matter,” and may quash 7 or modify a subpoena if it requires “disclosing trade secret or other information, development, or 8 commercial information.” A plaintiff has standing to seek to quash a subpoena issued to a third party 9 where the plaintiff asserts a legitimate privacy interest in the documents sought. See Abu v. Piramco 10 SEA-TAC Inc., 2009 WL 279036 at *1 (W.D. Wash. Feb. 5, 2009) (citation omitted). Generally, 11 employment records from separate employers are not discoverable due to their highly private nature 12 absent a specific showing by a defendant as to their relevance. See, e.g., Paananen v. Cellco P’ship, 13 2009 WL 2057048 at *3 (W.D. Wash. July 14, 2009)). Accordingly, while certain pre- and post- 14 employment records may be highly relevant to issues such as mitigation and computation of damages, 15 Walker v. Nw. Airlines Corp., 2002 WL 32539635 at *2 (D. Minn. Oct. 28, 2002), courts have 16 quashed subpoenas to obtain a plaintiff’s entire personnel file without limitation to certain categories 17 of information as facially overbroad and/or not reasonably calculated to lead to the discovery of 18 admissible evidence. See Lewin v. Nackard, 2010 WL 4607402 at *1 (D. Ariz. Nov. 4, 2010). 19 1. 20 Plaintiffs argue that the reissued subpoenas are defective for the same reasons as the previous 21 subpoenas; namely, overbreadth and relevancy. Defendants argue that the reissued subpoenas are 22 proper because they limited the temporal scope and categories of documents requested. Rather than 23 requesting records dating back as far as the mid-1980s, this time defendants chose to limit their 24 inquiries to employers from 2003 to the present. Similarly, defendants changed their “shotgun 25 approach” by only requesting documents relating to compensation, job performance, disciplinary 26 actions and terminations. Finally, defendants state that they limited the pre-Wyndham employers to AO 72 (Rev. 8/82) Temporal Scope, Categories of Documents Requested, Category of Employers 3 1 those in the sales industry with respect to plaintiffs who held either sales or administrative positions 2 at Wyndham. 3 Although the court’s Order (#152) did explain that seeking “any and all records” from 4 plaintiffs’ employers was facially overbroad, the court also explained several additional reasons why 5 quashing defendants’ subpoenas and issuing a protective order was appropriate. For instance, the 6 court found that much of what defendants seek was already in their possession or could be obtained 7 by less intrusive means. Id. at 5:14–19. Thus, defendants have not cured the previous overbreadth 8 and relevancy issues simply by limiting the temporal scope, categories of documents requested, and 9 categories of employers. 10 2. 11 Under Title VII, defendant employers have the burden to prove that a plaintiff failed to 12 mitigate his damages. Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). To satisfy 13 this burden, an employer must prove that “during the time in question there were substantially 14 equivalent jobs available, which [the plaintiff] could have obtained, and that [the plaintiff] failed to 15 use reasonable diligence in seeking one.” Id. (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 16 (9th Cir. 1994) (emphasis in original)). Back pay will not be awarded when “the evidence shows a 17 willful loss of earnings.” Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980) (citing 18 Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941)). The Ninth Circuit has set forth a list of acts 19 that would constitute a willful loss of earnings, thus, precluding back pay in some instances: “(1) 20 failure to remain in the labor market; (2) refusal to accept substantially equivalent employment; (3) 21 failure to search diligently for alternative work; (4) voluntarily quitting alternative work without a 22 good reason.” Thorne v. City of El Segundo, 802 F.2d 1131, 1135 n.3 (9th Cir. 1986) (citing Sangster, 23 633 F.2d at 868). Plaintiffs’ Mitigation Efforts With Post-Wyndham Employers 24 Defendants argue that their requests for plaintiffs’ post-Wyndham employers to provide them 25 with information relating to compensation, job performance, disciplinary actions and terminations is 26 now proper because it is far more specific than the previous request for any and all records pertaining AO 72 (Rev. 8/82) 4 1 to plaintiffs’ employment. However, the court finds that the requests are still overbroad for multiple 2 reasons. 3 First, defendants fail to show that their interest in the narrowed requests for post-Wyndham 4 information outweigh plaintiffs’ privacy concerns and the potential prejudice. In their Opposition 5 (#191), defendants list seven plaintiffs1 for whom they subpoenaed post-Wyndham employment 6 information that has potential relevance to backpay and mitigation efforts. Defendants inform the 7 court that deposition testimony for these seven plaintiffs revealed that six were terminated from a post- 8 Wyndham employer and one voluntarily resigned. Defendants rely on two cases out of the Fourth and 9 Fifth Circuits, Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996)) and Brady v. 10 Thurston Motor Lines, Inc., 753 F.2d 1269 (4th Cir. 1985), to support their argument that plaintiffs’ 11 job performance at their post-Wyndham employers is relevant to proving that defendants’ potential 12 backpay liability may be tolled as a result of a termination for cause. However, defendants’ reliance 13 on non-binding precedence is misplaced. As plaintiffs point out, the Fourth and Fifth Circuit cases 14 do not involve discovery motions resolving issues of relevance and balancing privacy interests; rather 15 the decisions reflect post-liability considerations that were either “special circumstances,” Patterson, 16 90 F.3d at 937, or “a particular application of the statutory duty to exercise reasonable diligence in 17 mitigating damages.” 18 unpersuasive, and fail to change the court’s previous determination that a protective order on this issue 19 was necessary to “prevent harm or prejudice that will result from the discovery.” Rivera v. NIBCO, 20 Inc., 364 F.3d 1057, 1063–64 (9th Cir. 2004). Brady, 753 F.2d at 1278. Therefore, the cases are distinguishable, 21 Second, defendants do not inform the court of any other means they have employed to gather 22 this information. Defendants have narrowed the scope of their request, but seem to have side-stepped 23 the court’s holding that “[i]tems such as missing earnings statements and 2010 tax information for 24 individual plaintiffs . . . can be obtained by less intrusive means than a request to an employer . . . .” 25 1 26 AO 72 (Rev. 8/82) Plaintiffs Genine Cannata, Patricia Calvin, Connie Post, Lori W ilk, Joan Lewis, Sheila Rhodes, and Carolyn Davis. Defs.’ Opp’n (#191) at 4–5. 5 1 Order (#152) at 5:17–19. Defendants justify the post-Wyndham requests by stating that plaintiffs have 2 not supplemented their employment records related to their mitigation efforts and they have no other 3 verifiable way of obtaining this information. However, plaintiffs’ motion points out that defendants 4 have had the opportunity to depose plaintiffs about their mitigation efforts and ample time remains 5 for both sides to timely supplement their discovery responses. Plaintiffs have acknowleged their 6 obligation to supplement this information, and the court expects them to do so. Moreover, given the 7 contentious nature of these proceedings thus far, the court assumes that defendants would not be 8 reluctant to file yet another motion to compel if they truly had no other way of obtaining this 9 information. Therefore, in the court’s view, plaintiffs’ privacy concerns outweigh defendants’ efforts 10 to narrow the scope of the reissued subpoenas. 11 3. 12 Plaintiffs’ Pre-Wyndham Job Performance, Disciplinary Actions, and Termination 13 Interestingly enough, in defendants’ summary of the previous Order (#152) quashing their 14 initial subpoenas they note the court’s findings that “plaintiffs had not put their pre-Wyndham job 15 performance at issue.” Defs.’ Opp’n (#191) at 2. Yet 14 of the 22 reissued subpoenas are directed 16 towards plaintiffs’ pre-Wyndham employers. Defendants claim they reissued the narrowed subpoenas 17 because plaintiffs were unwilling to stipulate that they would refrain from relying on their past 18 performance when discussing their claims against defendants. 19 erroneously assume that plaintiffs may be allowed to testify regarding past employment successes to 20 bolster their present claims. The court previously noted, however, that a plaintiff’s previous job 21 performance “does not tend to reveal how a plaintiff performed in her job at Wyndham.” Order 22 (#152) at 6:21–22. This is true for both bad and good previous performance. For some reason defendants 23 In addition, the court notes that defendants did not truly narrow the scope of the reissued 24 subpoenas by asking for limited information such as plaintiff’s length of employment, job titles, job 25 descriptions, and whether a plaintiff was eligible for rehire. The court concludes that defendants’ 26 AO 72 (Rev. 8/82) 6 1 reissued subpoenas are yet another attempt to obtain inadmissible and prejudicial information and 2 must therefore be quashed. 3 4. 4 Plaintiffs ask the court to award them monetary sanctions to compensate for the resources 5 plaintiffs unnecessarily expended to bring this motion and enforce the previously issued protective 6 order on these subjects. Pursuant to Rule 37, the court must require the party whose conduct 7 necessitated the motion “to pay the movant’s reasonable expenses incurred in making the motion, 8 including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). Nevertheless, an award of expenses or fees 9 is not appropriate if: (1) the moving party filed the motion before making a good faith effort to obtain 10 the discovery without court action; (2) the opposing party was substantially justified in its conduct; 11 or (3) an award of expenses would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(i–iii). Sanctions for Failure to Comply with Protective Order 12 Here, the record supports an award of attorneys fees because the court finds that defendants’ 13 attempt to narrow the scope of the reissued subpoenas was a change in form, but not the substance, 14 of the first set of subpoenas. Defendants argue that they were extremely cautious in reissuing the 15 subpoenas, and that the denial of their Motion for Clarification “did not prohibit Wyndham 16 Defendants from reissuing newly tailored subpoenas.” Defs.’ Opp’n (#191) at 17. This is literally 17 true. However, the court’s denial of the Motion for Clarification on the ground that it sought an 18 advisory opinion was not an invitation to disregard the court’s reasons for quashing the first set of 19 subpoenas. Because defendants’ conduct necessitated the instant motion, the court will award 20 plaintiffs their reasonable expenses, including attorney’s fees. 21 Accordingly, and for good cause shown, 22 IT IS ORDERED that plaintiffs’ Second Emergency Motion for an Interim Sequestration Order 23 and to Quash Third Party Subpoenas (#184) is GRANTED. 24 IT IS FURTHER ORDERED that: 25 (1) Defendants’ counsel shall forthwith inform the subpoenaed parties that the court has 26 AO 72 (Rev. 8/82) quashed the subpoenas at issue, and that they are not to respond to the subpoenas. 7 1 (2) Defendants’ counsel shall forthwith destroy any documents and copies of documents 2 counsel has received, and inform plaintiffs’ counsel which past and present employers produced 3 information pursuant to these subpoenas; and 4 5 (3) defendants’ counsel shall file a certification with the court of their compliance with this Order. 6 IT IS FURTHER ORDERED that plaintiffs’ request for an award of attorney fees is 7 GRANTED. Defendant shall pay the reasonable expenses, including attorney’s fees and costs, 8 incurred by plaintiffs in making this motion. Plaintiffs will have ten (10) days from the date of this 9 order to file a detailed affidavit of fees and costs. Defendant will have ten (10) days thereafter to file 10 a response to plaintiffs’ affidavit of fees and costs. 11 DATED this 25th day of August, 2011. 12 13 14 LAWRENCE R. LEAVITT UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 8
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