United States District Court, E.D. Washington
ORDER DENYING IN PART AND GRANTING IN PART
PLAINTIFFS' MOTION FOR A PROTECTIVE ORDER
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court, without oral argument, are Plaintiffs Shanna Rugo
and Belinda Dunn's Motion for a Protective Order Quashing
Subpoenas and Prohibiting Defendant Contact with
Plaintiffs' Employers, ECF No. 28, and related motion to
expedite, ECF No. 33. Through these motions Plaintiffs seek a
protective order quashing Defendants' Rob Hardwick DDS,
Robert W. Hardwick, Jr., DDS, Robert W. Hardwick, Jr., and
Michelle Hardwick's (collectively
“Defendants”) proposed third-party subpoenas to
Plaintiffs' current and other former employers seeking
Plaintiffs' employment records. Plaintiffs also seek to
prohibit Defendants from contacting the third-parties at
issue here. Defendants oppose the motions. Having reviewed
the pleadings and the file in this matter, the Court is fully
informed and denies in part and grants in part the present
motion. As explained in detail below, Defendants are entitled
to the discovery they seek and Plaintiffs have not
demonstrated that the requested relief is appropriate under
these circumstances. However, because Plaintiffs have raised
reasonable privacy concerns that constitute good cause, a
limited protective order restricting who can view and have
access to Plaintiffs' employment records is appropriate.
Lastly, because the motion to expedite is now moot since the
Plaintiffs' depositions have been postposed, it is
December 22, 2016, Plaintiffs Rugo and Dunn filed the instant
lawsuit alleging that Defendants-collectively constituting
Plaintiffs' former employer- retaliated against them for
opposing sexual harassment in the workplace in violation of
state and federal law. ECF No. 1. Plaintiffs bring claims
under Title VII of the Civil Rights Act of 1964, codified at
42 U.S.C. § 2000e, et seq, and RCW 49.60.210.
Id. at 7-9. They seek, among other things,
injunctive and monetary relief, including damages for past
and future lost income and benefits and emotional distress
and harm. Id. at 9-10.
instant motion concerns a discovery dispute between the
parties. In short, after Defendants informed Plaintiffs on
May 11, 2017, that they intended to seek employment records
directly from Plaintiffs' employers, Plaintiffs asserted
their opposition to such requests; the parties attempted and
failed resolve their disagreement. ECF No. 31 at 2-3.
Defendants first sought to obtain a release from Plaintiffs
that would allow Plaintiffs' current and other former
employers to release their employee files to Defendants.
Id. at 2. After Plaintiffs refused, Defendants
informed Plaintiffs that they would seek to obtain this
information through third-party subpoenas. Id. at
2-3. The parties have exchanged several letters on the matter
and discussed the issue via phone but have not come to a
resolution. Though there appears to have been some confusion
as to whether Defendants had already served the third-party
subpoenas, they have yet to do so. Id. at 3.
However, Plaintiffs' employers have received letters of
intent to serve subpoenas from Defendants. Id.
filed the instant motion and related motion to expedite on
May 26, 2017. ECF Nos. 28 and 33.
maintain that Defendants intend to issue third-party
subpoenas seeking the following information:
Any and all employment and payroll records, including, but
not limited to, each personnel file, each departmental file,
each formal or informal supervisor's file, all records
relating to any reference check completed, all payroll
records, all records identifying employee benefits, each
records relating to the reason for termination, all records
relating to complaints about work performance and
investigation into such complaints, records reflecting
complaints of discrimination to any agency, and a job
description regarding [Shanna Rugo and Belinda Dunn].
See, e.g., ECF No. 31-1 at 74 and 91. Defendants
assert that this indeed is the information they seek from
Plaintiffs' other employers. However, they state that
“unbeknownst” to them the phrase “[a]ny and
all employment and payroll records, including, but not
limited to” was somehow erroneously added to the notice
letters and draft subpoenas that Plaintiffs cite. ECF No. 35
at 2-3. Defendants clarify that should the Court deny the
instant motion and the third-party subpoenas are issued, the
phrase “[a]ny and all employment and payroll records,
including, but not limited to” will be stricken.
Plaintiffs possess the requisite standing to seek relief.
party lacks standing to challenge a subpoena issued to a
third party unless the party making the challenge claims a
personal right or privilege with respect to the discovery
sought in the subpoena.” Emara v. Multicare Health
Sys., No. 3:11-CV-6055-RBL, 2012 WL 5205950 at *2 (W.D.
Wash. Oct. 22, 2012) (citations omitted); see also
Crispin v. Christina Audigier, Inc., 717 F.Supp.2d 965,
973 (C.D. Cal. May 26, 2010) (citations omitted). In general,
the Federal Rules of Civil Procedure permit relatively broad
yet tailored and proportional discovery of relevant material.
See generally Rule 26(b). Indeed, the Rules
expressly allow the discovery of matter that may ultimately
be inadmissible as evidence. Id. Subpoenas are but
one method for procuring relevant information that parties
can employ. See generally Rule 45. However, language
within Rule 45 explicitly provides a mechanism for quashing
or modifying overly burdensome and unnecessary discovery
requests made through subpoenas. See Rule 45(d).
Additionally, parties can seek protective orders under Rule
26(c) to guard against discovery abuses. See
generally Rule 26(c).
Defendants have yet to issue third-party subpoenas. They
have, however, made it clear that they will serve them unless
Plaintiffs agree to the release of the information Defendants
seek from Plaintiffs' employers. Since Defendants are
pursuing Plaintiffs employee and payroll
information-Plaintiffs' employment records-from several
current and past employers, there is no question that
Plaintiffs have a “personal right or privilege”
in the requested discovery. Accordingly, Plaintiffs have
standing to ...