United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiffs' motion to
quash subpoenas (Dkt. No. 164), Plaintiffs' motion for
protective order (Dkt. No. 166), and the joinder in those
motions by Plaintiffs Pearson and Watkins (Dkt. Nos. 168 and
169). Having thoroughly considered the parties' briefing
and the relevant record, the Court finds oral argument
unnecessary and hereby GRANTS the motion to quash and GRANTS
IN PART and DENIES IN PART the motion for protective order
for the reasons explained herein.
matter arises out of an employment racial discrimination
case. (See Dkt. No. 6.) Plaintiffs are 20 African
Americans hired by Defendants to work on the University of
Washington Light Rail transit project (U220 Project).
(Id. at 2.) Plaintiffs fall into three groups: some
allege that they faced harassment until they quit; others
assert that they were terminated “for ‘Inability
to Perform the Tasks Assigned to the Level of Competence
Required by Management. No Misconduct Involved'”;
the third group claims that they were “turned
around” by Defendants shortly after being hired. (Dkt.
No. 164 at 3.) All allege a racial basis for Defendants'
acts. (Dkt. No. 6 at 1; see also Dkt. No. 134
(granting joinder of Plaintiffs)).
served subpoenas on 16 businesses who had each employed at
least one of Plaintiffs, either prior to or subsequent to
Plaintiffs' employment with Defendants. (Dkt. No. 164 at
1, 5; see, e.g., Dkt. No. 165-1 at 2-8.) Each
subpoena asks for “all records associated with each of
the 20 Plaintiffs, with no date restrictions.” (Dkt.
No. 164 at 1.) Plaintiffs now move to quash the subpoenas,
because (1) Defendants did not provide advance notice,
(Id. at 4-5), and (2) the subpoenas are overbroad
and lack time, subject matter, or privacy limitations.
(Id. at 2.) Plaintiffs also seek a protective order
for their healthcare records, on the grounds of both
privilege and relevance. (Dkt. No. 166 at 4-9.)
serving a subpoena requesting “production of documents,
” the requesting party must give a copy with notice to
other parties. Fed.R.Civ.P. 45(A)(4). The scope of a subpoena
request is coequal with the scope of discovery. See
Fed. R. Civ. P. 45(d)(1) advisory committee's note to
1970 amendment. “Parties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's
claim or defense . . .” Fed.R.Civ.P. 26(b)(1).
Information is relevant if it is “reasonably calculated
to lead to the discovery of admissible evidence.”
Surfvivor Media, Inc. v. Survivors Prods., 406 F.3d
625, 635 (9th Cir. 2005) (internal citation omitted).
District courts are afforded broad discretion in determining
what is relevant and discoverable. Surfvivor, 406
F.3d at 635.
are required to modify or quash subpoenas that present an
undue burden or require the disclosure of privileged or
protected matter. Fed.R.Civ.P. 45(d)(3)(A). Whether a
subpoena imposes an undue burden depends on the relevance of
the information requested, and the burden imposed. 9 James
Wm. Moore, et al., Moore's Federal Practice
§ 45.32 (3rd ed. 2006). The Ninth Circuit has suggested
that discovery against a nonparty is more limited than the
liberal discovery against parties. Garner Constr., Inc.
v. Int'l Union of Operating Eng'rs, 2007 WL
4287292, at *2 (W.D. Wash. Dec. 4, 2007) (citing Dart
Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th
Cir. 1980)); see United States v. Columbia Broad. Sys.,
Inc., 666 F.2d 364, 371 (9th Cir. 1982). But the Ninth
Circuit has also made it clear that courts should not read
“undue burden” differently merely because a
nonparty has been subpoenaed. Mount Hope Church v. Bash
Back!, 705 F.3d 418, 429 (9th Cir. 2012). A party moving
to quash a subpoena bears the burden of persuasion. See,
e.g., Jones v. Hirschfeld, 219 F.R.D. 71, 74-75
good cause, the Court may issue a protective order to prevent
“annoyance, embarrassment, oppression, or undue burden
or expense” in connection with documents sought in
discovery. Fed.R.Civ.P. 26(c). A proper basis for a
protective order includes “forbidding inquiry into
certain matters, or limiting the scope of disclosure or
discovery to certain matters.” Fed.R.Civ.P.
26(c)(1)(D). District courts are vested with broad discretion
in determining whether a protective order is appropriate and,
if so, what degree of protection is warranted. Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984);
Phillips ex rel. Estate of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1211-12 (9th Cir. 2002). The party
seeking to limit discovery has the burden of proving
“good cause, ” which requires a showing
“that specific prejudice or harm will result” if
the protective order is not granted. In re Roman Catholic
Archbishop of Portland in Or., 661 F.3d 417, 424 (9th
Cir. 2011); Beckman Indus., Inc. v. Int'l Ins.
Co., 966 F.2d 470, 476 (9th Cir. 1992) (“Broad
allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c)
test.”) (internal citation omitted).
Motion to Quash
reasons below, Plaintiffs' motion to quash (Dkt. Nos.
164) is hereby GRANTED.
have given appropriate advance notice to Plaintiffs as
required by the Federal Rules of Civil Procedure. “If
[a] subpoena commands the production of documents . . . then
before it is served on the person to whom it is directed, a
notice and a copy of the subpoena must be served on each
party.” Fed.R.Civ.P. 45(a)(4). “[N]otice must be
given well in advance of the production date, ” to
enable reasonable opportunity for objection. Butler v.
Biocore Medical Technologies, Inc., 348 F.3d 1163, 1173
(10th Cir. 2003).
are divided on what constitutes prior notice “in
advance of the production date.” Some courts have held
that notice given “simultaneous with the service of
the subpoena” still provides reasonable opportunity for
objection. See, e.g., Fla. Media, Inc. v. World
Publ'ns, LLC, 236 F.R.D. 693, 694-95 (M.D. Fla.
2006). Other courts reject notice concurrent with service.
See, e.g., Morris v. Sequa Corp., 275
F.R.D. 562, 566 (N.D. Ala. 2011) (holding that an email
notice sent on the same day as service did “not amount
to prior notice of service”); see also Kemper v.
Equity Ins. Co, 2016 WL 7428215, at *6 (N.D.Ga. Apr. 29,
2016) (finding that notice given one day before subpoenas
were served was sufficient). This Court agrees with the
latter approach; the rule plainly states that notice must be
given “before” service, but does not articulate a
minimum period of time. Fed.R.Civ.P. 45(a)(4).
issued first notice of the subpoenas to Plaintiffs at 3:20
P.M. on March 17, 2017. (Dkt. No. 165-1 at 2-3, 7-8.) The
subpoenas were served on their recipients on March 21, 2017,
(Dkt. No. 172 at 11), with a requested production date of
March 31, 2017. (See e.g., Dkt. No. 165-1 at 22.)
Defendants provided notice before serving the documents, and
Plaintiffs had the opportunity to object “in ...