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Greenburg v. Red Robin International, Inc.

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

May 23, 2018




         This matter comes before the Court on Plaintiff Gary Greenburg's (“Greenburg”) motion for protective order to quash subpoenas duces tecum (Dkt. 10). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part the motion for the reasons stated herein.


         On December 18, 2018, Greenburg filed a complaint against Defendants Red Robin International, Inc. (“Red Robin”) and Krista Coleman for retaliation, wrongful discharge, and failure to pay for wage and rest breaks. Dkt. 1.

         On March 29, 2018, Red Robin informed Greenburg of its intent to serve subpoenas duces tecum on Greenburg's former employers requesting any and all documents relating to Greenburg's employment. Dkt. 14 at 34-35. Specifically, Red Robin intends to seek documents regarding payroll/income and compensation records, employment applications, employment history, job description(s), employee evaluations and performance appraisals, attendance records, and disciplinary records, including any documentation relating to counseling or discipline. See, e.g., Dkt. 14 at 60. Red Robin asserts that Greenburg objected only to Red Robin seeking payroll/income and compensation records. Dkt. 14 at 64-65 (email written by Greenburg's counsel summarizing meet and confer).

         On April 11, 2018, Greenburg filed the instant motion requesting that the Court quash the subpoenas in total. Dkt. 10. On April 18, 2018, Red Robin responded. Dkt. 13. On April 15, 2018, Greenburg replied. Dkt. 15.


         A. Meet and Confer

         Every discovery motion must contain a certification that the parties met and conferred regarding the dispute. LCR 37(a)(1). Relying on Greenburg's counsel's email, Red Robin argues that Greenburg failed to meet and confer on all issues except the request for payroll and income records. Dkt. 13 at 7. Greenburg counters that, while the email did not specifically address all of the parties' disagreements, Greenburg objected to and the parties discussed each category of documents requested by Red Robin. Dkt. 15 at 2-3. Greenburg's counsel has submitted a declaration to support this position. Dkt. 16.

         The Court declines to engage in fact finding inquiry on this issue and will accept counsel's declaration as sufficient evidence that the parties met and conferred on all issues presented.

         B. Merits

         The parties essentially dispute the relevance of information from Greenburg's past and subsequent employers. “Generally, employment records from separate employers are not discoverable due to their highly private nature absent a specific showing by a defendant as to their relevance.” Paananen v. Cellco P'ship, C08-1042 RSM, 2009 WL 2057048, at *3 (W.D. Wash. July 15, 2009) (citing Woods v. Fresenius Med. Care Group of N.A., 2008 WL 151836, *1 (S.D.Ind. Jan.16, 2008); Chamberlain v. Farmington Sav. Bank, 2007 WL 2786421, *1 (D.Conn. 2007)).

         In this case, Red Robin fails to make a specific showing of relevance as to the majority of information requested. For example, Red Robin asserts that these records “may . . . reveal that [Greenburg] has a pattern of asserting frivolous claims of discrimination.” Dkt. 13 at 9. Red Robin, however, has failed to make any specific showing that Greenburg has filed any other discrimination complaint against any other employer. The Court declines to allow Red Robin's fishing expedition into Greenburg's private records based on a hypothetical that can be determined with a simple request for admission. If Greenburg admits that he has filed prior complaints, either formal or informal, then Red Robin has evidence to make the required showing.[1] In the absence of such evidence, Red Robin has failed to meet its burden on the majority of its requests.

         On the other hand, Greenburg has opened the door on emotional distress issues. In Abu v. Piramco Sea-Tac Inc., C08-1167RSL, 2009 WL 279036 (W.D. Wash. Feb. 5, 2009), “Plaintiff contend[ed] that as a result of defendant's discriminatory treatment, she suffered emotional distress, including a reduced ability to concentrate.” Id. at *2. The Court concluded that “plaintiff's subsequent attendance and ability to concentrate (as reflected in her job performance) is relevant.” Id. Applied to this case, Greenburg contends that Greenburg subsequently worked at Taco Time and BJ's restaurant, but shortly ended both jobs because of mental health issues resulting from Red Robin's treatment and termination of Greenburg. Dkt. 10 at 2-3. Similar to Abu, the Court concludes that attendance records as well as disciplinary records from these two employers are ...

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