United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO QUASH
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
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).
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.
Meet and Confer
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.
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
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)).
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. In the absence of such evidence, Red Robin
has failed to meet its burden on the majority of its
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