U.S. Equal Employment Opportunity Commission v. Wedco, Inc., No. 3:2012cv00523 - Document 80 (D. Nev. 2014)

Court Description: ORDER granting in part and denying in part EEOC's 37 motion to quash subpoena. Signed by Magistrate Judge Valerie P. Cooke on 4/22/2014. (Copies have been distributed pursuant to the NEF - KR)
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U.S. Equal Employment Opportunity Commission v. Wedco, Inc. Doc. 80 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 8 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ORDER Plaintiff, 9 v. 10 11 Case No. 3:12-CV-0523-RCJ (VPC) WEDCO, INC., Defendant. 12 13 14 Before the court is a dispute between plaintiff U.S. Equal Opportunity Commission 15 (“EEOC”) and defendant Wedco, Inc. (“Wedco”) concerning a subpoena Wedco issued to 16 charging party Larry Mitchell (“Mr. Mitchell”). 17 compromise concerning many of the requests, three general categories still remain in dispute: 18 (1) requests for Mr. Mitchell’s diaries and calendars; (2) requests for Mr. Mitchell’s medical and 19 psychological records; and (3) a request for any charge Mr. Mitchell has ever filed with EEOC or 20 a state FEPA (#59). At the January 21, 2014, case management conference, the court stayed 21 consideration of this discovery dispute because the parties stipulated to a settlement conference 22 (#60). The parties did not settle the case, this dispute remains unresolved, and this order follows. 23 I. While the parties were able to reach Procedural Background 24 The EEOC filed suit under Title VII of the Civil Rights Act of 1964, as amended, on 25 behalf of charging party Mr. Mitchell to address and remedy allegedly unlawful employment 26 practices of Wedco. EEOC alleges that Wedco subjected Mr. Mitchell to racial harassment due 27 to his race, Black; specifically, that he was subjected to a noose and racial epithets, including 28 being called “n__ger” by his direct supervisor (#1). EEOC claims Wedco also subjected him to Dockets.Justia.com 1 unequal terms and conditions of employment, including being forced to ask permission to use the 2 toilet when others did not have to do so, having his work phone intentionally displaced to cause 3 delay, and being given last minute instructions for deliveries that interfered with his lunch hour, 4 all due to his race. Id. On June 6, 2013, Wedco issued a subpoena to Mr. Mitchell, which included twenty-four 5 6 requests (#37, Ex. G). 7 subsequently issued to EEOC during this same time period. Id., Decl. of Elizabeth Naccarato, 8 Ex. I. The EEOC is litigating this case on behalf of the public interest and charging party; 9 therefore, the EEOC has standing to challenge the subpoena issued to Mr. Mitchell, both as the 10 plaintiff and as the representative of the charging party. EEOC v. Serramonte, 237 F.R.D. 220, 11 223 (N.D.Cal. 2006) (“It is immaterial that [EEOC] has no standing to object as the non-recipient 12 of the subpoenas, since it has standing as Plaintiff to file a motion to quash on all the same 13 grounds”); e.g., Las Vegas Limited Partnership v. Simon Property Group, Inc., 2007 WL 14 119148, *3 (D.Nev. 2007) (“A party can, however, move for a protective order in regard to a 15 subpoena issued to a non-party if it believes its own interest is jeopardized by discovery sought 16 from a third party and has standing under Rule 26(c) to seek a protective order regarding 17 subpoenas issued to non-parties which seek irrelevant information.”). This court finds that 18 EEOC also has standing to seek a protective order as to a subpoena issued to Mr. Mitchell. 19 II. 20 Nearly all of these requests were repeated in written discovery Discussion and Analysis of Items Sought by Wedco’s Subpoena 21 A. Requests 6, 7, & 15: Mr. Mitchell’s writings, diaries, calendars from January 1, 2004, to the present 22 The specific requests at issue state as follows: 23 6. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, which support, refute or discuss the allegations in the Complaint and Jury Trial Demand (“Complaint”) from the date when you were hired by Wedco until the date your employment with Wedco terminated. 7. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, which support, refute or discuss the allegations in the Complaint and Jury 24 25 26 27 28 -2- 1 Trial Demand (“Complaint”) from the date when your employment with Wedco terminated to the date of this request. 2 3 15. 4 5 Please produce any and all diaries or calendars kept by you from January 1, 2004 to the present. (#59, pp. 3 & 4). 6 The complaint alleges that as a result of racial harassment and disparate treatment while 7 employed at Wedco, Mr. Mitchell suffered “emotional pain, suffering, humiliation, 8 inconvenience, loss of enjoyment of life, and damages, all to be proven at trial” (#1, ¶ 16). The 9 complaint does not allege any independent claims for emotional distress. During the parties’ 10 meet and confer, EEOC agreed to produce documents that addressed the allegations in the 11 complaint, including diary entries or calendars, from the time Mr. Mitchell worked at Wedco to 12 the present. Wedco, in turn, agreed to limit the time period of the documents in Category No. 15 13 from the date Mr. Mitchell began working at Wedco (December 2007), to one year after his 14 employment with Wedco terminated (July 2008). 15 EEOC then agreed to produce documents responsive to Category Nos. 6, 7, and 15, with 16 the exception of any diary or calendar entries that do not specifically refer to Mr. Mitchell’s 17 allegations of harassment and discrimination on the grounds that they are not relevant and would 18 invade Mr. Mitchell’s privacy and third parties’ rights of privacy. Wedco’s position is that any 19 entries in diaries or calendars for the period in question are relevant to determine the extent to 20 which Mr. Mitchell did not find the conduct sufficiently harassing to write about it. Such diary 21 or calendar entries may also be relevant to Mr. Mitchell’s claim of emotional distress. See, e.g., 22 Herrera v. Sante Fe Public Schools, 2013 WL 4782160, at *20 (D.N.M. August 19, 2013). 23 The court must balance Mr. Mitchell’s privacy rights with Wedco’s interest in potentially 24 relevant information concerning his emotional and mental state of mind during the narrowed 25 period of time in question. Before ordering the release of such information, however, the court 26 directs EEOC to submit for the court’s in camera review any documents not already produced 27 that are responsive to the request. If the court decides some or all of these documents warrant 28 disclosure to Wedco, the parties’ protective order will assure they will not be disseminated. -3- 1 2 B. 3 EEOC’s complaint does not state a separate claim for emotional distress; rather, it alleges 4 that “Mr. Mitchell has suffered emotional pain, suffering, humiliation, inconvenience, loss of 5 enjoyment of life, and damages to be proven at trial” (#1, at ¶ 16). Wedco made the following 6 requests of Mr. Mitchell: 7 Requests 9, 10, 11 and 13: Mr. Mitchell’s physical and mental health records 9. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, regarding your physical and mental health for the period January 1, 2005 until the date when you commenced your employment with Wedco. 10. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, regarding your physical and mental health from the date when you commenced your employment with Wedco until the date your employment with Wedco terminated. 11. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, regarding your physical and mental health from the date when your employment with Wedco terminated through the date of this request. 13. Please produce any and all documents, specifically including medical records, which demonstrate any psychological, emotional or counseling care or treatment you have received since January 1, 1990. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (#59, p. 7). 22 EEOC issued formal objections to Wedco at the time the requests were made in June 23 2013, and cited three grounds: (1) the responses are privileged; (2) the information is private 24 because the EEOC seeks only garden-variety damages; and (3) the discovery exceeds the scope 25 of Rule 26 and will not lead to the discovery of admissible evidence (#59). Thereafter, EEOC 26 advised that it “does not plan to present expert testimony or rely on medical documents” in 27 support of his emotional distress claims” (#37 at p. 23). In the parties’ meet and confer, Wedco 28 agreed to limited the time period of Category No. 13 to documents from 2005 to 2010 (#59, p. -4- 1 18). However, the parties could not resolve the central issue, which is whether Mr. Mitchell 2 should be compelled to produce his physical and mental health records because EEOC alleges 3 Mr. Mitchell suffered emotional distress as a result of his treatment while employed at Wedco. 4 Rule 26(b)(1) provides for the proper scope of discovery and generally permits liberal 5 discovery “if the discovery appears reasonably calculated to lead to the discovery of admissible 6 evidence.” Fed.R.Civ.P. 26(b)(1). 7 nonprivileged matters. 8 psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1996). However, the Court 9 also recognized that the patient may waive the privilege. Id. at 15, n. 14. “Neither the United 10 State Supreme Court nor the Ninth Circuit has yet addressed whether and when a plaintiff waives 11 the privilege by claiming emotional distress damages.” EEOC v. Walmart, 276 F.R.D. 637, 640 12 (E.D.Wash. 2011). Id. However, Rule 26 only provides for discovery of The United State Supreme Court formally recognized the 13 In EEOC v. Walmart, the court surveyed cases in the Ninth Circuit in which a plaintiff 14 has alleged garden-variety emotional distress. A narrow approach takes the position that in such 15 cases, the plaintiff does not waive the physician-doctor privilege or the psychotherapist privilege. 16 Id. at 640, citing Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D.Cal.2003) (holding that garden 17 variety emotional damages does not waive the psychotherapist-patient privilege); Uzzell v. 18 Teletech Holdings, Inc., 2007 WL 4358315 at *2 (W.D. Wash. Dec. 7, 2007). Courts taking the 19 broader approach contend that such privileges are waived whenever the patient places his or her 20 mental condition at issue. 276 F.R.D. 637, 640, citing Sanchez v. U.S. Airways, Inc., 202 F.R.D. 21 131 (E.D.Pa. 2001); Doe v. City of Chula Vista, 196 F.R.D. 562, 567 (S.D.Cal. 1999). 22 A more recent case, EEOC v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D. 23 Cal. 2009) also reviewed both approaches. In that case, the court held the broader approach 24 appropriate because the plaintiff’s claims of emotional distress were at the heart of her claim and 25 could possibly have been caused by something other than the alleged sexual harassment, since 26 the plaintiff was also being treated for depression. Id. at 400. In analyzing these cases, the court 27 in EEOC v. Walmart considered these approaches in the context of the particular plaintiff. The 28 plaintiff in Walmart did not intend to introduce medical records or expert testimony to support -5- 1 the emotional distress claims. See Passantino v. Johnson & Johnson Consumer Prod., 212 F.3d 2 493, 513 (9th Cir. 2000) (emotional distress damages need not be supported by medical records 3 or expert testimony). In addition, the plaintiff did not present any multiple causation issues or 4 specific emotional damages outside of any incidental emotional distress. 258 F.R.D. 391, 641. 5 Based on the particular facts of this case, the court finds that Mr. Mitchell has not waived 6 the physician-patient privilege or the psychotherapist-patient privilege. Mr. Mitchell does not 7 intend to rely on medical or psychological records or expert testimony to support his emotional 8 distress claim; rather, he intends to do so through other evidence. Wedco’s counsel has already 9 deposed Mr. Mitchell and presumably, counsel explored Mr. Mitchell’s emotional distress claim. 10 Since that deposition, Wedco has offered no additional bases to seek these records. 11 Consequently, the court declines to compel Mr. Mitchell to produce any medical or mental health 12 records. 13 C. 14 15 Request Nos. 23 and 24: Prior complaints Mr. Mitchell may have made to EEOC or any FEPA Wedco made thse requests of Mr. Mitchell: 23. Please produce each and every document that reflects any contact or communication you had [with the] Equal Employment Opportunity Commission or Nevada Equal Rights Commission regarding Wedco, prior to the time Equal Employment Opportunity Commission purported to begin representing your interests in this matter, including all documents and forms that you provided to the Equal Employment Opportunity Commission or Nevada Equal Rights Commission to you [sic] or that were provided by the Equal Employment Opportunity Commission or Nevada Equal Rights Commission to you. 24. 16 Please produe all Charges of Discrimination you have filed with the Nevada Equal Rights Commission, the Equal Employment Opportunity Commission or other agency regarding any of your prior employers. 17 18 19 20 21 22 23 24 25 26 (#59, p. 13). 27 EEOC formally objected to these requests on the grounds that (1) the information sought 28 may be protected by the attorney-client privilege, (2) the information sought cannot be disclosed -6- 1 based on the conciliation privilege, and they generally exceed the scope of permissible discovery 2 and will not lead to the discovery of admissible evidence (#59, p. 13). The EEOC did not object 3 to producing non-privileged documents in Mr. Mitchell’s possession concerning his charges of 4 discrimination against Wedco, as well as document exchanged between NERC and Mr. Mitchell, 5 or EEOC and Mr. Mitchell, as long as not otherwise accounted for on EEOC’s privilege log. Id. 6 at p. 14. 7 conciliation. Id. The parties also agreed to limit this requests to any document not involving 8 Although Wedco subsequently agreed to limit Request No. 24 to charges involving only 9 racial discrimination, EEOC contends that whether Mr. Mitchell filed a discrimination charge in 10 any other states in the country has no bearing on this case, is irrelevant, and is only brought to 11 harass and prejudice Mr. Mitchell. However, to the extent such discovery is allowed, EEOC 12 requests that it be limited in time and geographical location. Id. 13 Wedco’s position is that Mr. Mitchell is obligated to provide any charges of 14 discrimination he has filed against former employers because prior claims could go to Mr. 15 Mitchell’s motive state of mind, and credibility, as well as his litigiousness. Graham v. Casey’s 16 General Stores, 206 F.R.D. 251, 257 (S.D. Ind. 2002); Walker v. Northwest Airlines Corp., 2002 17 WL 32539635, at *2 (D. Minn., Oct. 28, 2002). The court agrees; however, the court will limit 18 the request to the five years prior to the termination of Mr. Mitchell’s employment at Wedco. 19 The court believes that the five-year period provides a sufficient limitation and will not restrict 20 the response to a particular geographical location. 21 III. 22 23 24 Conclusion Based upon the foregoing, EEOC’s motion to quash subpoena (#37) is DENIED in part and GRANTED in part as follows: 1. Request Nos. 6, 7, and 15: EEOC shall submit for in camera review any 25 documents not already produced that are responsive to these requests no later than Tuesday, 26 April 28, 2014, and the court will decide the extent to which any documents will be produced; 27 28 2. Request Nos. 9, 10, 11 and 13: Mr. Mitchell shall not be required to produce documents responsive to these requests; and -7- 1 3. Request Nos. 23 and 24: Mr. Mitchell shall produce documents responsive to 2 these requests for the period five years prior to his termination at Wedco, and such documents 3 shall be produced no later than Tuesday, April 28, 2014, 5:00 p.m. Pacific Time. 4 IT IS SO ORDERED. 5 Dated: April 22, 2014. 6 7 8 ________________________________________ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-