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Rollins v. Traylor Bros. Inc.

United States District Court, W.D. Washington, Seattle

May 5, 2017

LEONARD ROLLINS, et al., Plaintiffs,
v.
TRAYLOR BROS., INC., and TRAYLOR/FRONTIER-KEMPER JV, Defendants.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         This 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)).

         Defendants 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.)

         II. DISCUSSION

         A. Legal Standards

         Before 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.

         Courts 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 (2003).

         For 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).

         B. Motion to Quash

         For the reasons below, Plaintiffs' motion to quash (Dkt. Nos. 164) is hereby GRANTED.

         1. Advance Notice

         Defendants 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).

         Courts 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).

         Defendants 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 ...


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