Abu v. Piramco Sea-Tac Inc, No. 2:2008cv01167 - Document 32 (W.D. Wash. 2009)
Court Description: ORDER granting in part and denying in part 23 Motion to Quash and for Protective Order, by Judge Robert S. Lasnik.(VP)
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Abu v. Piramco Sea-Tac Inc Doc. 32 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 FAIZA ABU, 9 Plaintiff, Case No. C08-1167RSL 10 11 12 v. PIRAMCO SEA-TAC INC., d/b/a BEST WESTERN AIRPORT EXECUTEL, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR A PROTECTIVE ORDER Defendant, 13 14 15 This matter comes before the Court on plaintiff’s motion for a protective order. 16 Plaintiff seeks an order preventing defendant from contacting her current and former 17 employers, prohibiting defendant from issuing subpoenas to them, and quashing the 18 subpoenas already issued. 19 A. 20 21 Background Facts. Plaintiff worked for defendant as a hotel front desk agent from July 27, 2006 until November 3, 2006. Plaintiff was required to wear a uniform at work. 22 A tenet of plaintiff’s Muslim faith is to wear a head scarf when she is in the 23 presence of males who are not her husband or blood relatives. Plaintiff wore a head scarf 24 to work during Ramadan in 2006 and the weeks prior to it. Plaintiff contends that 25 26 ORDER REGARDING MOTION FOR A PROTECTIVE ORDER - 1 Dockets.Justia.com 1 defendant discharged her when she refused to remove her head scarf. Plaintiff contends 2 that defendant failed to accommodate her religious preference in violation of Title VII of 3 the Civil Rights Act of 1964 (“Title VII”). 4 In January 2009, defendant issued subpoenas duces tecum to two employers for 5 whom plaintiff worked prior to defendant.1 Defendant expressed an intent to issue three 6 more subpoenas to plaintiff’s subsequent employers, including her current employer. The 7 subpoenas to the former employers are identical and request ten categories of documents 8 regarding plaintiff: (1) each personnel file, (2) each departmental file, (3) each formal or 9 informal supervisor’s file, (4) all records relating to any reference check completed, (5) 10 all payroll records, (6) all records identifying employee benefits, (7) each record relating 11 to the reason for termination, (8) all records relating to complaints about plaintiff’s work 12 performance and investigation into such complaints, (9) records reflecting complaints of 13 discrimination made by plaintiff to any agency, and (10) a job description. 14 B. Analysis. 15 Plaintiff has filed a certification establishing that counsel met and conferred prior 16 to filing this motion.2 Although plaintiff initially contended that defendant failed to give 17 proper notice of the subpoenas, she did not pursue that issue in her reply memorandum. 18 Moreover, plaintiff has had a sufficient opportunity, albeit after two of the subpoenas 19 20 21 22 23 24 25 26 1 In December 2008, defendant sent subpoenas duces tecum to the University of Washington and Highline Community College seeking copies of plaintiff’s educationrelated files, including her financial aid records. Plaintiff has not moved to quash those subpoenas and instead focuses on the employment-related subpoenas. 2 On January 15, 2009, plaintiff’s counsel sent a letter to this Court setting forth the issue and requesting “direction.” Even though a copy of the letter was sent to opposing counsel, the communication was inappropriate. Any request for relief should be contained in a motion, which allows the opposing party an opportunity to respond. ORDER REGARDING MOTION FOR A PROTECTIVE ORDER - 2 1 were served, to object. Therefore, the motion is ready for the Court’s review. 2 As a threshold matter, a plaintiff has standing to seek to quash a subpoena issued 3 to a third party where the plaintiff asserts a legitimate privacy interest in the material 4 sought. See, e.g., Maxwell v. Health Ctr. of Lake City, 2006 WL 1627020 (M.D. Fla. 5 2006). In this case, plaintiff has shown that she has a legitimate privacy interest in the 6 contents of her employment-related files. Therefore, she has standing to bring this 7 motion. 8 As for the merits of plaintiff’s motion, the Court has discretion to issue a 9 protective order forbidding or limiting discovery. Fed. R. Civ. P. 26(c)(1). A party is 10 entitled to discovery into matters “reasonably calculated to lead to the discovery of 11 admissible evidence.” Fed. R. Civ. P. 26(b)(1). A party’s right to obtain material 12 pursuant to a Rule 45 subpoena to a third party is as broad as otherwise permitted under 13 the discovery rules. See, e.g., Wright, Miller & Cooper, Federal Practice & Procedure § 14 2459 at pp. 44-45 (2d. ed. 1994). A court may limit discovery to protect a party from 15 annoyance, embarrassment, oppression, or undue burden. Fed. R. Civ. P. 26(c)(1). 16 Plaintiff, as the party resisting discovery, bears the burden of showing why discovery 17 should be denied. See, e.g., Blankenship v. Hearst Corp., 519 F.2d 418, 419 (9th Cir. 18 1975). 19 Plaintiff contends that the information defendant seeks is information it already 20 has (information about her compensation) or information that is inadmissible in this case 21 (information regarding plaintiff’s performance history). The requests are not overly 22 broad on their face because they request specific categories of documents. However, 23 defendant has not explained why information regarding plaintiff’s employee benefits is 24 relevant. Although plaintiff seeks back pay, she does not seek lost benefits. Therefore, 25 26 ORDER REGARDING MOTION FOR A PROTECTIVE ORDER - 3 1 the other employers will not be required to provide information about plaintiff’s benefits. 2 Similarly, the other employers will not be required to provide plaintiff’s payroll records 3 because compensation information can be obtained through less intrusive means, like tax 4 records.3 Nor is this information relevant to mitigation or to support defendant’s after 5 acquired evidence defense. Any after acquired evidence that might be obtained would not 6 affect plaintiff’s damages because she has already obtained other employment and 7 mitigated her damages. 8 Defendant has shown that the other information sought from plaintiff’s employers 9 is relevant in two ways. First, it is relevant to her claims of emotional distress. Plaintiff 10 contends that as a result of defendant’s discriminatory treatment, she suffered emotional 11 distress, including a reduced ability to concentrate. Consequently, plaintiff’s subsequent 12 attendance and ability to concentrate (as reflected in her job performance) is relevant. 13 Furthermore, the information is also relevant to support or disprove causation of the 14 emotional distress. Second, information from plaintiff’s other employers is relevant to 15 her credibility. It does not appear that defendant is conducting a fishing expedition on the 16 issue. Rather, plaintiff has been untruthful once about an important issue. She failed to 17 list a recent prior employer on her employment application with defendant because she 18 feared receiving a bad reference. The omission was made even though plaintiff signed 19 the application certifying that the answers provided were accurate to the best of her 20 knowledge and belief and acknowledging that intentional omissions could lead to her 21 22 23 24 25 26 3 Defendant argues that plaintiff has indicated in her supplemental initial disclosures that she will rely on documents from other employers. Defendant did not attach the supplemental initial disclosures or otherwise indicate the extent of plaintiff’s anticipated reliance. If plaintiff indicates an intent to rely on payroll and benefits-related documents from her other employers, defendant may seek to obtain those documents. ORDER REGARDING MOTION FOR A PROTECTIVE ORDER - 4 1 termination. Because plaintiff was intentionally untruthful at least once regarding an 2 important issue, defendant is entitled to further probe her credibility.4 Moreover, the 3 nature of plaintiff’s claims and the issue of the sincerity of her beliefs place her credibility 4 directly at issue in this case. Furthermore, defendant is entitled to discover whether 5 plaintiff has previously filed frivolous discrimination claims, which could weigh against 6 her credibility. See, e.g., Maxwell, 2006 WL 1627020 at *4 (citing Graham v. Casey’s 7 General Stores, 206 F.R.D. 251, 256 (S.D. Ind. 2002)).5 Therefore, with the exception of 8 documents regarding payroll and benefits, the information sought is relevant. Plaintiff 9 has not shown how the evidence can be obtained through less intrusive means. 10 Having found that some of the requested evidence is relevant, the Court balances 11 defendant’s interest in obtaining the information against plaintiff’s privacy interest and 12 the burden to the third parties. Plaintiff claims that she does not want her current 13 employer to learn that she has filed an employment discrimination lawsuit against her 14 prior employer. However, plaintiff is statutorily protected from retaliation for filing the 15 lawsuit. As for her claimed privacy interest, plaintiff gave a press interview about this 16 matter which resulted in a story about it in the Seattle Weekly in September 2008. 17 Coverage of the issue is readily available through a simple internet search using 18 19 20 21 22 23 4 Compare Graham, 206 F.R.D. at 255 (explaining that plaintiff’s untruthful statements to her prior employer could be relevant to her credibility) with Chamberlain v. Farmington Sav. Bank, 2007 WL 2786421 (D. Conn. 2007) (granting motion to quash where defendant had not shown that plaintiff had misrepresented information in the litigation); see also Woods v. Fresenius Med. Care Group, 2008 WL 151836 (S.D. Ind. 2008) (declining to find relevance based on credibility where defendant did not identify facts to show that plaintiff had been untruthful to it or to her other employers). 24 25 26 5 See also Shirazi v. Childtime Learning Ctr., 2008 WL 4792694 (W.D. Okla. 2008). ORDER REGARDING MOTION FOR A PROTECTIVE ORDER - 5 1 plaintiff’s name. Moreover, plaintiff may have waived some of her privacy interests by 2 bringing this Title VII suit and seeking damages for emotional distress. See, e.g., 3 Maxwell, 2006 WL 1627020 at *2; Mirkin v. Winston Resources, LLC, 2008 WL 4 4861840 (S.D.N.Y. 2008). Plaintiff could have reasonably expected that matters 5 regarding her other employment and performance would be disclosed in this litigation. 6 She has not shown that any information in her employment records is particularly 7 embarrassing or revealing. There is no evidence that defendant intends to use the 8 discovery process or the contents of the files to harass plaintiff or her other employers. In 9 addition, plaintiff has worked for each employer for a relatively short period of time, so 10 producing the documents should not be unduly burdensome. 11 Accordingly, plaintiff’s motion for a protective order (Dkt. #23) is GRANTED IN 12 PART AND DENIED IN PART. The Court quashes the already issued subpoenas to the 13 extent that they seek plaintiff’s payroll records and information regarding employee 14 benefits. Nor may defendant seek that information from plaintiff’s subsequent employers. 15 Otherwise, plaintiff’s motion is denied. 16 17 DATED this 5th day of February, 2009. 18 19 A Robert S. Lasnik 20 United States District Judge 21 22 23 24 25 26 ORDER REGARDING MOTION FOR A PROTECTIVE ORDER - 6
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