United States District Court, D. Nebraska
RODOLFO A. QUILES, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, INCORPORATED, RODNEY N. DOERR, EDWARD ADELMAN, TRACY SCOTT, and KATHLEEN HUGHES, individually; Defendants.
M. Bazis United States Magistrate Judge
matter is before the Court Plaintiff's Motion to Quash
Third-Party Subpoenas. (Filing No. 111.) Upon consideration,
the motion is denied.
filed this action on July 7, 2016, alleging that Defendant
Union Pacific Railroad Company, Inc. (“Union
Pacific”) terminated his employment in violation of the
Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4301, et seq.
(Filing No. 1.) Plaintiff seeks, among other things, the
recovery of back and front pay.
Pacific has issued notices of intent to serve subpoenas on
several of Plaintiff's former employers. The subpoenas
seek Plaintiff's “applications for employment and
resumes; payroll/wage records; W-2 forms, performance
evaluations; and records reflecting the reason(s) for
termination/separation from employment.” (Filing No.
100.) Plaintiff has moved to quash the subpoenas.
to Federal Rule of Civil Procedure 26(b)(1), as amended,
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). Rule 26 “is to be
construed broadly and encompasses any matter that bears on,
or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.”
Hodges v. Pfizer, Inc., Civ. No. 14-4855-ADM/TNL,
2016 WL 1222229, *2 (D. Minn. March 28, 2016) (internal
quotation omitted). Nevertheless, the scope of discovery is
not unlimited. Courts must limit the frequency or extent of
discovery if it determines that “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.” Fed.R.Civ.P. 26.
Rule of Civil Procedure 45 governs discovery from nonparties
through the issuance of subpoenas. Rule 45 provides that
nonparties may be commanded to “attend and testify;
produce designated documents, electronically stored
information, or tangible things in that person's
possession, custody, or control; or permit the inspection of
premises.” Fed.R.Civ.P. 45. However, “[t]he scope
of discovery under a subpoena is the same as the scope of
discovery under Rules 26(b) and 34 and is subject to the
rules that apply to other methods of discovery.”
Desert Orchid Partners, LLC v. Transaction System
Architects, Inc., 237 F.R.D. 215, 217 (D. Neb. 2006)
(quotation omitted). A subpoena “must seek relevant
information.” Phelps-Roper v. Heineman, No.
4:09CV3268, 2014 WL 562843, *1 (D. Neb. Fed. 11, 2014).
argues that Defendant's subpoenas are overly broad and
seek irrelevant information. Plaintiff maintains that any
performance deficiencies occurring during previous employment
have nothing to do with his USERRA claims. Plaintiff further
contends that prior employment records are not relevant to
the issue of damages because they did not form the basis of
any assumptions his expert used in creating his damages
report. Plaintiff argues that because his damages only arise
from his return to Union Pacific and after, his prior
employment records are not relevant to the amount of pay to
which Plaintiff is entitled if he prevails in this action.
Plaintiff also argues that he would be prejudiced by the
subpoenas because future employers or employment search firms
may be dissuaded from hiring him.
Pacific maintains, however, that it needs Plaintiff's
employment records to evaluate Plaintiff's claim for
front pay and to bolster its mitigation defense. Union
Pacific contends that should past employment records show,
for instance, that Plaintiff moved around to multiple
employers, this information could challenge Plaintiff's
expert, whose damage calculation rests on the assumption that
Plaintiff would have remained employed at Union Pacific for
Court agrees that Plaintiff's employment records are
relevant in this action. Union Pacific should have access to
these document to allow it to better evaluate Plaintiff's
claim for damages, especially given Plaintiff's
assumption that he would have remained employed at Union
Pacific for 40 years and received promotions. See
Lutzeier v. Citigroup Inc., No. 4:14CV183, 2015 WL
1853820, *3 (E.D. Mo. Apr. 22, 2015) (denying the
plaintiff's motion to quash subpoenas served on former
employers where the plaintiff claimed he would have remained
at his employer, and received increased compensation and two
promotions); Smith v. United Salt Corp.,
No.1:08CV00053, 2009 WL 2929343, *6 (W.D. Va. Sept. 9, 2009)
(denying motion to quash previous employment records finding
that the records were relevant to “demonstrate that the
plaintiffs do not remain at any job for long”).
records are also important for Union Pacific's mitigation
defense. These employment records could be used to assess the
quality of any post-termination position Plaintiff has
sought, both in terms of his transferable skills and past
compensation. Smith, 2009 WL 2929343 at *6 (denying
motion to quash subpoenas requesting past employment history
reasoning that “the subpoenas could generate evidence
that the plaintiffs have acquired strong, transferrable
vocational skills in their prior jobs”).
in this action, Union Pacific maintains that Plaintiff was
terminated for poor performance and insubordination. It is
reasonable to conclude that records from Plaintiff's
previous employers could lead to other matters that bear on
Plaintiff's assertion that he was terminated in violation
of USERRA. Thus, in light of Plaintiff's claims and Union
Pacific's defenses, the documents requested in the
subpoenas are relevant.
Court further concludes that the subpoenas are not overly
broad. Union Pacific did not request Plaintiff's complete
employment record. Rather, the subpoenas ...