United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion for
protective order regarding Defendants' proposed
third-party discovery (Dkt. No. 32). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
the motion for the reasons explained herein.
Erica Scott brings the underlying employment action against
Defendants Multicare Health System and Chad Krilich, alleging
that they unlawfully terminated her employment based on her
gender and race and in retaliation for having voiced concerns
about patient safety. (See generally Dkt. No. 13.)
Defendants assert that Plaintiff's employment was
terminated for legitimate, non-discriminatory reasons, among
other defenses. (Dkt. No. 14 at 5- 6.)
currently works as a surgeon for Piedmont Healthcare in
Atlanta, Georgia. (Dkt. No. 32 at 3.) During discovery in
this case, Plaintiff has provided Defendants with: her
employment contract with Piedmont; Form W-2s from 2015, 2016,
and 2017; her Piedmont paystubs from September 30, 2018 to
October 27, 2018; and Piedmont's annual on-call surgical
schedules for 2018 and 2019. (Dkt. No. 33 at 1.) During her
deposition, Plaintiff stated that she was unaware of any
written evaluations of her performance at Piedmont. (Dkt. No.
33-1 at 5.)
Plaintiff's deposition, Defendants told Plaintiff that
they were seeking documents in Plaintiff's Piedmont
personnel records “related to write-ups or disciplinary
matters.” (Dkt. No. 33-2 at 6.) After the parties
disagreed as to whether the documents were relevant and
discoverable, (see id. at 2-5), Defendants notified
Plaintiff of their intent to subpoena Piedmont for documents,
including Plaintiff's performance records. (Dkt. No. 33-4
at 3-4.) In a later email, Defendants stated that documents
related to Plaintiff's performance at Piedmont “are
directly relevant given that Dr. Scott's theory includes
the allegation that she was written up unfairly at AMC, and
therefore we need to determine if her current employer is
writing her up for similar issues, as it would support the
fairness of being written up similarly at AMC.” (Dkt.
No. 33-5 at 2.)
moves for a protective order prohibiting discovery of
documents related to her performance and disciplinary record
with Piedmont, including any subpoena seeking such documents.
(Dkt. No. 32.)
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). This 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). To establish good cause
under Rule 26(c), the movant must show “‘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) (quoting Foltz v. State Farm Mut. Ins.
Co., 331 F.3d 1122, 1130 (9th Cir. 2003)). “Rule
26(c) confers broad discretion on the trial court to decide
when a protective order is appropriate and what degree of
protection is required.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984).
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. Courts are required
to modify or quash subpoenas that present an undue burden or
require the disclosure of privileged or protected matter.
Current Employer's Personnel Records
threshold matter, “[g]enerally, 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, No. C08-1042-RSM, Dkt. No. 25 at 4 (W.D.
Wash. 2009) (citing Woods v. Fresenius Med. Care Grp. of
N.A., 2008 WL 151836, slip op. at 1 (S.D. Ind. 2008);
Chamberlain v. Farmington Sav. Bank, 2007 WL
2786421, slip op. at 1 (D. Conn. 2007)). Defendants seek
Plaintiff's performance- and disciplinary-related
personnel records from Piedmont, her current employer,
asserting that such records would evidence Defendants'
reasonableness if they show that Piedmont responds similarly
to Plaintiff's behavior. (See Dkt. No. 33-5 at
2, 6, 12.) But Plaintiff's claims of
discrimination and retaliation concern how Defendants treated
her while she was employed at Defendant Multicare Health
System's Auburn Medical Center in Washington. (See
generally Dkt. No. 12.) Plaintiff's allegations
against Defendants have put her employment at Auburn Medical
Center at issue, and do not implicate her performance at
Piedmont, whether she has raised similar concerns at
Piedmont, or whether Piedmont has disciplined her on the same
grounds as Defendants. Moreover, Defendants have not shown
that Piedmont's similar treatment of Plaintiff would
necessarily demonstrate Defendants' reasonableness in
this case; conversely, such evidence could simply show that
Plaintiff may have similar claims against her current
employer. Finally, Defendants have not argued that
Plaintiff's personnel records from her current employer
would support Defendants' claims that Plaintiff was
terminated from Auburn Medical Center for legitimate,
non-discriminatory reasons or overriding reasons.
(See Dkt. No. 14 at 5 - 6; see generally
Dkt. No. 36.) Therefore, Defendants have not made a specific
showing of relevance sufficient to demonstrate that
Plaintiff's personnel records at her current employer are
discoverable in this case. See Paananen, No.
C08-1042-RSM, Dkt. No. 25 at 4.
Plaintiff has established good cause warranting a protective
order restricting Defendants from seeking Plaintiff's
personnel records from her current employer. As discussed
above, Plaintiff has a privacy interest in her employment
records at her current employer, and Defendants have not made
a specific showing of relevance outweighing Plaintiff's
interest. (Dkt. No. 32 at 6-9); see Paananen, No.
C08-1042-RSM, Dkt. No. 25 at 4. Plaintiff has also cited the
negative impact that Defendants' proposed subpoena could
have on her current employment at Piedmont. (Dkt. No. 32 at
9) (citing Warnke v. CVS Corp., 265 F.R.D. 64, 69
(E.D.N.Y. 2010); Graham v. Casey's Gen. Stores,
206 F.R.D. 251, 256 (S.D. Ind. 2002)). Plaintiff's
privacy interest in her employment records and the negative
impact of a third-party subpoena on her ...