United States District Court, D. Nebraska
MEMORANDUM AND PROTECTIVE ORDER
LYLE E. STROM, Senior District Judge.
This matter is before the Court on the motion of Aegis USA ("Aegis), a non-party, to quash the subpoena issued by plaintiff Rex Brown ("Brown") and for the issuance of a protective order (Filing No. 206). The Court notes that by stipulation of the parties, the motion was transferred to this Court from the Northern District of the United States District Court of Texas (Filing No. 208).
I. Procedural History
On December 27, 2013, defendant West Corporation ("West") filed a notice with this Court regarding its intention to depose Aegis, plaintiff's subsequent employer (Filing No. 162). Plaintiff filed a motion for a protective order in the limited capacity available to an adverse party that wishes to limit a subpoena served on a third-party (Filing No. 166). See, Streck, Inc. v. Research & Diagnostic Sys., Inc., No. 8:06CV458, 2009 WL 1562851, at *3 (D. Neb. June 1, 2009) ("[A] party has standing to object to a third-party subpoena on grounds of relevance or to protect a personal right or privilege in the information requested."). Plaintiff's brief explicitly warned that allowing West's requested discovery would necessitate additional discovery by Brown regarding "the propriety of Brown's/Aegis' actions during his employment at Aegis and the reason for his termination." Plaintiff's Brief in Support of Plaintiff's Motion for Protective Order, Filing No. 167, at 13.
The Court granted the motion for a protective order on certain issues which the Court found irrelevant to the defendant's mitigation of damages defense but otherwise denied the motion. Brown v. West, 8:11CV284, Filing No. 183. Most significantly, the Court found that "West's mitigation of damages defense is inextricably linked to Brown's performance at Aegis and the reason for his termination." Id. at 2. As a result, defendants were left unhindered in their pursuit of deposition testimony and documents from Aegis regarding Brown's wages and compensation at Aegis, circumstances surrounding Brown's termination from Aegis, opportunities provided to Brown to correct performance deficiencies, and communications between Aegis and Brown's counsel. In addition, the Court did not disturb West's request for documents from Aegis which included charges of discrimination filed by Brown against Aegis, sworn statements by Brown, a demand letter from Brown to Aegis regarding his Title VII and section 1981 claims, and written communications from counsel for Brown regarding the claims against Aegis.
Despite the explicit request to Aegis for discovery on Brown's charges against Aegis and plaintiff's warnings that he too would pursue discovery on those issues if West was allowed to initiate such discovery, Aegis did not file any motions for a protective order or motions to quash on its own behalf. Seeking to rebut the expected testimony from Aegis that Brown was fired due to poor performance, Brown also served a subpoena on Aegis regarding the reasons for his termination. However, Brown's alternative theory that his termination was the result of discrimination by Aegis expanded the scope of the inquiry to include all the evidence that Brown might use to prove his case in a discrimination suit against Aegis. In fact, Brown has filed a complaint with the Nebraska Equal Opportunity Commission against Aegis charging discrimination in connection to his termination.
II. Legal Standards
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The Court is directed to limit discovery where
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C). In addition, the Court must "quash or modify a subpoena that... subjects a person to undue burden." Fed.R.Civ.P. 45(d)(3)(A)(iv). Factors considered in determining whether a subpoena presents an undue burden include:
(1) the relevance of the requested information; (2) the need of the party for the information; (3) the breadth of the request; (4) the time period covered by the request; (5) the particularity with which the party describes the requested information; and (6) the burden imposed.
Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812, 818 (5th Cir. 2004). "Further, if the person to whom the document request is made is a non-party, the court may also consider the expense and inconvenience to the non-party." E3 Biofuels, LLC v. Biothane ...