Court Quashes Subpoenas Seeking Documents Held By Discrimination Plaintiff’s Prior Employers

In Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) – a race and sexual orientation discrimination case – the court quashed subpoenas seeking documents from plaintiff’s prior employers.

Specifically, the court quashed the subpoenas because they (1) failed to provide adequate notice, (2) would cause prejudice to plaintiff, (3) were overbroad, and (4) sought irrelevant information.

This Order provides a good overview of the procedural requirements of Fed. R. Civ. 45, as well as how courts will apply the newly-amended Fed. R. Civ. P. 26 (including, e.g., that rule’s new “proportionality” requirement) in employment discrimination cases.

As to prejudice, the court explained:

[Plaintiff] has been prejudiced by the issuance of these subpoenas to the three former employers. As Henry’s counsel points out in her reply memorandum, one of the subpoena recipients, North End Grill, is owned by Union Square Hospitality Group, which owns at least 12 other restaurants in New York City, and another, Café Luxembourg, is under the same ownership as two other well-known restaurants in the City. Plaintiff’s Reply Memorandum (“Rep. Mem.”) (Dkt. No. 29), at 3. Thus, if Henry were to seek employment at any of these 16 restaurants in the future, his application to any of them (or any other restaurants to which the managers of these establishments might relocate) might well be adversely affected by the fact that his records had been subpoenaed in this lawsuit. While Defendant makes light of this argument, it is a legitimate concern. Indeed, the Court would hardly be surprised that, if Defendant (or any other establishment) knew that an applicant for employment had brought a lawsuit against another restaurant for discrimination, it might take that into account in the hiring process.

Judge Cott also held that the subpoenas could be quashed on the independent ground that they were overbroad:

The scope of the subpoenas themselves is problematic, to say the least. In each of the three subpoenas at issue, Defendant commands Henry’s former employers to produce “[a]ll documents and communications, whether paper, electronic or other media, referring or relating to Phillip Henry including but not limited to personnel files, disciplinary files, and any other employment documents or records.” Blanket requests of this kind are plainly overbroad and impermissible. … By failing to limit its subpoena to certain categories of documents, Defendant is merely trying to engage in a fishing expedition.

Finally, the court explained why, under the newly-amended Rule 26, the subpoenas seek information that was irrelevant to plaintiff’s case:

The Court should consider both the nature of information sought and whether its production is “proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). Here, Defendant contends that the records from Henry’s three prior employers for whom he worked in the oneyear period immediately prior to his employment with Defendant are relevant because “Plaintiff held himself out as being an exceptional waiter, and relied upon his employment at these prior employers as evidence of his employable qualities. If Plaintiffs representations were false, which Defendant strongly suspects, the records from these prior employers are extremely relevant both in connection with Plaintiff’s credibility and the doctrine of after-acquired evidence.” Def. Mem. at 5–6. The Court finds this explanation to be an insufficient basis to warrant the subpoenas served on the prior employers. Defendant predicates these subpoenas on wholesale speculation that Henry was untruthful about some of the events of his prior employment. Even if Henry was not an “exceptional” waiter at his prior jobs (whatever that may mean), it is not remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant’s actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry’s prior employment has little if any bearing on that issue. In addition, as Henry notes, Defendant has not offered sufficient (indeed any) evidence that he made misrepresentations to Defendant regarding his prior employment to justify production of any of the records that Defendant seeks, or satisfied the Court that its production is proportional to the needs of the case. (Emphasis added.)

It concluded by noting that “the evidence to be adduced from the non-party employers would likely be inadmissible propensity evidence under [Federal] Rule [of Evidence] 404(a).”

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