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Burnett v. Ocean Properties, Ltd.

United States District Court, D. Maine

July 31, 2017

RYAN D. BURNETT, Plaintiff
OCEAN PROPERTIES, LTD., et al., Defendants


          John H. Rich III United States Magistrate Judge.

         In this employment discrimination action, plaintiff Ryan D. Burnett moves pursuant to Federal Rule of Civil Procedure 45(d)(3) to quash a subpoena commanding his current employer, FCi Federal, Inc. (“FCi”), to produce employment records to the defendant Ocean Properties, Ltd. (“OPL”), his former employer; he argues that the information sought is irrelevant to any claim or defense, and disproportional, and that OPL seeks to intimidate and harass him by making the existence of this suit known to his current employer. See Plaintiff's Motion To Quash Subpoena Duces Tecum (“Motion”) (ECF No. 42) at 1-3.[1] While I conclude that the specified contents of the plaintiff's personnel file are relevant to the claims and defenses in this action, I grant the plaintiff's motion because the defendants have improperly used the subpoena as a first, not a last, resort.

         I. Applicable Legal Standards

         Federal Rule of Civil Procedure 45 provides, in relevant part, “On timely motion, the court for the district where compliance is required must quash or modify a subpoena that . . . requires disclosure of privileged or other protected matter, if no exception or waiver applies[.]” Fed.R.Civ.P. 45(d)(3)(A)(iii).

         In support of his argument that his personnel file contents are protected, the plaintiff invokes 26 M.R.S.A. § 631, see Motion at 1, which directs that employers “take adequate steps to ensure the integrity and confidentiality” of records in an employee's “personnel file, ” 26 M.R.S.A. § 631. “[A] personnel file includes, but is not limited to, any formal or informal employee evaluations and reports relating to the employee's character, credit, work habits, compensation and benefits and nonprivileged medical records or nurses' station notes relating to the employee that the employer has in the employer's possession.” Id.

         “Where, as here, a party seeks discovery relevant to both federal and state civil claims, federal law governs the discovery of information protected by a state confidentiality statute.” Steinberg v. Mount Sinai Med. Ctr., Inc., No. 12 Civ. 51 (SLT)(VMS), 2014 WL 1311572, at *2 (E.D.N.Y. Mar. 31, 2014) (citations and footnotes omitted).

         “A Rule 45 subpoena must fall within the scope of proper discovery under Fed.R.Civ.P. 26(b)(1).” Green v. Cosby, 152 F.Supp.3d 31, 34 (D. Mass. 2015), modified on other grounds on recon., 160 F.Supp.3d 431 (D. Mass. 2016) (citation and internal quotation marks omitted). Pursuant to Rule 26(b)(1), unless otherwise limited by court order, the scope of discovery is as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         “If the information sought is confidential but not privileged, FRCP 26 does not limit disclosure of otherwise discoverable information.” Steinberg, 2014 WL 1311572, at *2 (citations omitted). “Nevertheless, federal courts must balance [a party's] interest in disclosure against the state's legitimate concern for protecting the confidentiality of the requested information.” Id. at *3 (citation and internal punctuation omitted) (material in brackets added). “In striking this balance, courts have considered the parties' need for the materials at issue and whether a protective order issued by the court can address the purposes underlying the confidentiality statute.” Id. (citations and footnote omitted). See also, e.g., Parker v. Delmar Gardens of Lenexa, Inc., Case No. 16-2169-JWL-GEB, 2017 WL 1650757, at *6 (D. Kan. May 2, 2017) (“Plaintiff contends her personnel files and employment records are confidential and should be protected from ‘wide dissemination.' This Court does not disagree with the sensitivity and confidentiality of the records. However, Plaintiff's argument is incomplete. It is well-established that confidentiality of information does not equate to a privilege against its production.”) (footnotes omitted); In re One Bancorp Sec. Litig., 134 F.R.D. 4, 9-10 (D. Me. 1991) (although defendant's financial records were confidential pursuant to Maine law, plaintiffs' motion to compel access to them was granted when parties had entered into a confidentiality stipulation and the records were highly relevant to the issues in the litigation).

         II. Discussion

         A. Whether Subpoena Should Be Quashed

         As the plaintiff observes, see Motion at 3, federal courts “have recognized that subpoenas directed at litigants' employers concerning disputes with past employers can have a direct negative effect on present employment and should be used only as a last resort[, ]” EEOC v. Texas Roadhouse, Inc., 303 F.R.D. 1, 3 (D. Mass. 2014) (citation and internal quotation marks omitted). See also, e.g., Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 256-57 (S.D. Ind. 2002) (quashing subpoena served on plaintiff's current employer; noting that plaintiff “has a legitimate concern that a subpoena sent to her current employer under the guise of a discovery request could be a tool for harassment and result in difficulties for her in her new job”).

         This is a sensible approach to a valid concern, and it aligns with Maine's recognition of the confidentiality and sensitivity ...

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