Taylor v. C6 Disposal Systems, Inc.

Western District of Texas, txwd-5:2019-cv-00347

Opposed MOTION to Quash Defendant's Subpoena Duces Tecum, Opposed MOTION for Protective Order by Charles Taylor.

Interested in this case?

Current View

Full Text

0 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf § Civil Action No. 5:19-cv-00347-ESC of all others similarly situated § § Plaintiff § JURY TRIAL DEMANDED § v. § COLLECTIVE ACTION § PURSUANT TO 29 U.S.C. § 216(b) C6 DISPOSAL SYSTEMS, INC. § § CLASS ACTION PURSUANT TO Defendant § FED. R. CIV. P. 23 PLAINTIFF'S OPPOSED MOTION TO QUASH DEFENDANT'S SUBPOENA DUCES TECUM AND MOTION FOR PROTECTIVE ORDER Plaintiff Charles Taylor files this Opposed Motion to Quash Defendant C6 Disposal Systems, Inc.'s (hereinafter "C6" or "Defendant") Subpoena Duces Tecum ("Subpoena") to Plaintiff's current employer, ACT Disposal, LLC, and further Moves for the Entry of a Protective Order proscribing further retaliatory conduct by Defendant against Plaintiff, Opt-In Plaintiffs, and members of the Putative Class.1 Plaintiff will respectfully show that the Subpoena fails to comply with Federal Rule of Civil Procedure 26 and constitutes an illegal retaliatory action against Plaintiff for bringing a claim under Section 216(b) of the Fair Labor Standards Act against his former employer, C6 Disposal Systems, Inc. I. FACTUAL BACKGROUND On April 3, 2019, Plaintiff Taylor brought individual and collective/class action claims under the Fair Labor Standards Act ("FLSA") and Texas common law for unpaid overtime and unpaid 1 A true and correct copy of the Subpoena is attached hereto as Exhibit A. Plaintiff's Motion to Quash & Motion for Protective Order Page 1 0 wages. See ECF No. 1. Plaintiff Taylor alleged that Defendant required him to work through his thirty (30) minute meal break and did not pay him for this time, causing him to work overtime hours for which he did not receive the correct amount of overtime compensation. At the time Plaintiff filed this lawsuit, he was no longer employed by Defendant, and was instead working for ACT Disposal, LLC as a waste disposal driver. On June 13, 2019, Defendant served the subject Subpoena on Plaintiff's current employer, ACT Disposal, LLC. Defendant's Subpoena seeks the production of six categories of documents, as follows: 1) All documents that describe, refer to, support, reflect, memorialize, or substantiate your policies and procedures for lunch breaks or other breaks during the workday which pertain to your employee Charles Taylor. . . including without limitation any policies and procedures relating to automatic deductions for time spent on such breaks and/or he calculation of an employee's compensation relating to such breaks. 2) All documents that describe, refer to, support reflect, memorialize, or substantiate Charles Taylor's acknowledgement of and/or agreement to your policies and procedures for lunch breaks or other breaks during the workday while employed by you, including without limitation any policies and procedures relating to automatic deductions for time spent on such breaks and/or the calculation of an employee's compensation relating to such breaks. 3) All documents that describe, refer to, support, reflect, memorialize, or substantiate timesheets and/or records of time worked by Charles Taylor. 4) All documents that describe, refer to, support, reflect, memorialize, or substantiate representations made to you by Charles Taylor regarding lunch breaks or other breaks during the workday while employed by you. 5) All documents that describe, refer to, support, reflect, memorialize, or substantiate any claim made by Charles Taylor that he is or is not taking lunch breaks or other breaks during the workday while employed by you. 6) All documents that describe, refer to, support, reflect, memorialize, or substantiate any claim made by Charles Taylor that he is not being properly paid by you in connection with his taking or not taking lunch breaks or other breaks during the workday while employed by you. See Exhibit A, p. 3. Importantly, none of the above categories seeks documents relevant to this litigation—in fact, the only arguable purpose for serving the subject Subpoena is to inform Plaintiff's current employer about this lawsuit and Plaintiff's allegations herein. Because none of the requested Plaintiff's Motion to Quash & Motion for Protective Order Page 2 0 information is relevant to any issue before this Court, it constitutes blatant harassment, is an invasion of Plaintiff's privacy, and detrimentally impacts his relationship with his current employer. As such, Defendant's third-party discovery request is not only a violation of the Federal Rules of Civil Procedure and the anti-retaliation provision of the Fair Labor Standards Act, it also constitutes sanctionable discovery abuse.2 II. DEFENDANT'S SUBPOENA VIOLATES THE FEDERAL DISCOVERY RULES AND THE FLSA A. Standards Governing Subpoenas Duces Tecum Under the Federal Rules Subpoenas duecus tecum "are discovery devices which, although governed in the first instance by Rule 45, are also subject to the parameters established by Rule 26." Calix v. Ashton Marine LLC, No. 14-2430, 2015 WL 3504971, at *1 (E.D. La. June 3, 2015) (citing Garvin v. S. States Ins. Excg. Co., No. 1:04-cv-73, 2007 WL 2463282, at *5 n.3 (N.D.W.Va. Aug. 28, 2007). Accordingly, the court has authority to quash or modify a subpoena that exceeds the structures of either Rule 45 or Rule 26. See id.; FED. R. CIV. P. 26(c)(1)(A), 45(d)(3). Critically, Federal Rule of Civil Procedure 26 dictates that "the permissible scope of discovery extends only to [a] 'matter that is relevant to any party's claim or defense[.]'" See id. (citing FED. R. CIV. P. 26(b)(1)). When a subpoena duces tecum is served that is beyond the parameters provided by the Federal Rules, it is subject to quash.3 2 Plaintiff has not moved for sanctions herein but he reserves the right to seek sanctions for Defendant's discovery abuses at a later date. 3 Although the Subpoena was issued to third-party ACT Disposal, LLC, Plaintiff has standing to challenge the Subpoena seeking production of his employment records from his current employer. It is well settled that "[a] party has standing to oppose a subpoena issued to a non-party when they claim some personal right or privilege with regard to the documents sought." See Winter v. Bisso Marine Co., Inc., No. 13-5191, 2014 WL 3778833, at * 1 (E.D. La. July 29, 2014). This personal right or privilege standard has been recognized in numerous cases." See id.; Barrington v. Mortgage IT, Inc., No. 07-61304-CIV, 2007 WL 4370647 at * 2 (S.D. Fla. Dec. 10, 2007) (citations omitted) (collecting cases) (recognizing that "courts have repeatedly found that an individual possesses a personal right with Plaintiff's Motion to Quash & Motion for Protective Order Page 3 0 Moreover, the propriety of subpoenas issued to a plaintiff's current employer in employment litigation is an issue that has been repeatedly addressed by courts throughout the United States. Absent a strong showing of relevance, subpoenas issued to a plaintiff's current employer are typically deemed impermissible. See Richardson v. BBB Grp., Inc., No. 13-cv-1014, 2014 WL 1724761, at *1 and n. 1 (N.D. Tex. Apr. 30, 2014) (finding that "Plaintiff has a legitimate concern that the disclosure of her dispute with her past employer may have a direct negative effect on her current employment, and BBB is not entitled to subpoena Plaintiff's employment records from her employer where a less intrusive method of discovery is available."); Bahrami v. Maxie Price Chevrolet–Oldsmobile Inc., No. 1:11–CV–4483–SCJ– AJB, 2013 WL 3800336, at *4 (N.D. Ga. June 19, 2013) (collecting cases where courts have granted motions to quash subpoenas or for protective orders when parties have cited speculative reasons for seeking employment records); Richards v. Convergys Corp., No. 2:05-CV-00790DAK, 2007 WL 474012, at *3 (D. Utah Feb. 7, 2007) (agreeing with Plaintiff that a subpoena to a current employer may cause problems in the employment relationship as the subpoenas tend to focus the employer's attention on the litigation and compliance with the discovery requests places a burden on the employer which the employer may resent). Courts have recognized that an employee "has a legitimate concern that a subpoena sent to her current employer under the guise of a discovery request could be a tool for harassment and result in difficulties for her in her new job." As Judge Patterson stated, [b]y issuing a subpoena to plaintiff's current employer, defense counsel caused plaintiff to worry about her continued employment relationship, in a manner amounting to harassment. Because of the direct negative effect that disclosures of disputes with past employers can have on present employment, subpoenas in this context, if warranted at all, should be used only as a last resort. "[T]he spirit of 26(g) is violated when discovery is used as a tactical weapon rather than to explore a party's claims and the facts connected therewith." In re Weinberg, 163 B.R. respect to information contained in employment records, and, thus, has standing to challenge such a subpoena"). Plaintiff's Motion to Quash & Motion for Protective Order Page 4 0 681, 684 (Bankr. E.D.N.Y.1994) (internal citation omitted). The same is true with respect to third-party subpoenas issued in the early discovery phase of a discrimination litigation. Conrod v. Bank of New York, No. 97 CIV. 6347 (RPP), 1998 WL 430546, at *2 (S.D.N.Y. July 30, 1998), vacated pursuant to settlement (July 30, 1998)) (sanctioning employer defendant for serving a subpoena to the plaintiff's current employer). B. Defendant's Supboena Duces Tecum Is Impermissible Here, the Subpoena seeks documents unrelated to the claims or defenses at issue in this litigation and is therefore far beyond the permissible scope of discovery set forth in Federal Rule of Civil Procedure 26. See FED. R. CIV. P. 26. As evidenced by the documents requested to be produced, Defendant seeks document production related to third-party ACT Disposal, LLC's policies and procedures—policies and procedures immaterial to Plaintiff's past employment with Defendant. See Exhibit A at p. 3. It also seeks documents evidencing the hours worked by Plaintiff for ACT Disposal, LLC. Such information is wholly irrelevant to whether Defendant—C6 Disposal—paid Plaintiff correctly for all time worked. See Bahrami v. Maxie Price Chevrolet–Oldsmobile Inc., No. 1:11–CV–4483– SCJ–AJB, 2013 WL 3800336, at *4 (N.D. Ga. June 19, 2013) (collecting cases where courts have granted motions to quash subpoenas or for protective orders when parties have cited speculative reasons for seeking employment records); Reynolds v. York, No. 3:04–MC–045–P, 2004 WL 1490040, at *1 (N.D. Tex. July 2, 2004) (holding that third-party subpoena served on former employer seeking personnel file and other documents that might impeach plaintiff's credibility "amount[ed] to nothing more than a fishing expedition"). While the discovery sought in the Subpoena is clearly irrelevant to the matters in this case, relevance is not Plaintiff's only objection to the Subpoena. Plaintiff also objects to the Subpoena because it constitutes an unbridled invasion of privacy, is harassing, and abusive. Even in circumstances when an employer is seeking to obtain relevant materials, courts routinely quash such subpoenas, recognizing that they are often misused as an "tactical weapon" for purposes of Plaintiff's Motion to Quash & Motion for Protective Order Page 5 0 harassment. See Conrod, 1998 WL 430546, at *2; Richardson, 2014 WL 1724761, at *1. In Richardson, the plaintiff conceded that the third-party discovery requests to her employer were relevant, and instead opposed them on the grounds that such discovery constituted harassment. See Richardson, 2014 WL 1724761, at *1. Magistrate Judge Stickney agreed, and held that discovery to a plaintiff's current employer in the context of employment litigation should be authorized as a last result, only when the information could be discovered though no alternative methods. See id. (citing Herrera v. Easygates, LLC, No. 11-cv-2558, 2012 WL 5289663, at *2–3 (D. Kan. Oct. 23, 2012) (noting that subpoena issued by former employer to plaintiff's current employer is "by its nature subject to abuse"); Warnke v. CVS Corp., 265 F.R.D. 64, 69–70 (E.D.N.Y. 2010) (recognizing the potential harm to plaintiff if the defendant was allowed to disclose plaintiff's dispute with past employer to current employer)). The requested discovery here is not only irrelevant, but Defendant has made no effort to obtain the sought information through alternative methods. Because the Subpoena served upon ACT Disposal, LLC is irrelevant, harassing and retaliatory in violation of 29 U.S.C. § 215(a)(3), Plaintiff asks that this Court quash the Subpoena.4 III. COURT-ORDERED PROTECTION IS NECESSARY AND APPROPRIATE This Court has a substantial interest in protecting current and putative class members from retaliatory or coercive behavior. See Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171 (1989) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) ("Because of the potential for abuse, a district court has both 4 29 U.S.C. § 215(a)(3) provides that it is unlawful for any person: to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.] (emphasis added). Plaintiff's Motion to Quash & Motion for Protective Order Page 6 0 the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties."). In Gulf Oil, the Supreme Court described the power and duty of district courts to issue protective orders limiting communications between parties and potential class members, where necessary, to maintain the integrity and fairness of the legal process. 452 U.S. at 101. There, the Supreme Court found that [c]lass actions serve an important function in our system of civil justice. They present, however, opportunities for abuse as well as problems for courts and counsel in the management of cases. Because of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties. Gulf Oil Co., 452 U.S. at 100; see also Nogueda v. Granite Master, No. 2:09-cv-347, 2010 WL 1521296, at * (N.D. Ind. Apr. 14, 2014) (finding that the Rule 23 class action principles addressed in Gulf Oil Co., apply in the FLSA context). Here, Defendant's conduct is particularly offensive given its blatant and unrepentant nature, and proactive relief is appropriate in light of the FLSA's anti-retaliation provision designed to prevent this very sort of behavior. See 29 U.S.C. § 215(a)(3). Section 15(a)(3) makes it unlawful to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding. Id. at § 215(a)(3), (b); see also Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292–93; Bailey v. Gulf Coast Transportation, Inc., 280 F.3d 1333, 1336 (11th Cir. 2002) (describing importance of prompt judicial action to halt employer intimidation); Marxe v. Jackson, 833 F.2d 1121, 1126 (3d Cir. 1987) (same). Defendant's coercive and abusive behavior warrants immediate intervention by this Court. By issuing the Subpoena to Plaintiff 's current employer, for the sole purpose of harassing Plaintiff and souring his relationship with ACT Disposal, LLC, it is clear that judicial action is warranted to stop such harassing and retaliatory behavior. Plaintiff's Motion to Quash & Motion for Protective Order Page 7 0 Plaintiff therefore moves this Court to invoke its authority, and the anti-retaliation provisions of Section 215(a)(3), to protect the named plaintiff, all opt-in plaintiffs and putative class members from intimidation, coercion and retaliation by Defendant. Plaintiff further asks this Court to prohibit Defendant and its counsel from contacting or otherwise communicating with Plaintiff Taylor, Opt-In Plaintiffs, the Putative Class Members, and their current (or prospective) employers about this litigation. The facts and applicable law support the entry of an order granting the requested relief. The protective order sought is justified by evidence that Defendant has already explicitly retaliated against Plaintiff. See Ex. A. Absent prompt and decisive judicial intervention, it is a near- certainty that these retaliatory actions will continue and will severely compromise the integrity of these proceedings. Therefore, Plaintiff seeks the following order, that Defendant is: Prohibited from communicating directly or indirectly, with any Plaintiffs, Putative Class Members, or their third-party employers about any matters which touch or concern the outstanding wage claims, or other matters related to this suit, during the opt-in period. Defendant shall instruct all of its managers of the requirements of this Order. This Oder shall not restrict Defendant from discussion with any Putative Class Members matter that arise in the normal course of business. And, further Prohibits Defendant from directing, permitting, or undertaking, either directly or through any employee, agent, or other intermediary, activities that intimidate, threaten, restrain, harass, coerce, or in any manner discriminate against plaintiffs, putative class members, witnesses, potential witnesses, or their family members. This enforces the anti-retaliation provisions of the FLSA and is uncontroversial. As written, a protective order will prohibit the abusive and harassing environment fostered by Defendant, and would apply equally to non-employee plaintiffs, such as Plaintiff Taylor, whom Defendant is currently harassing at his new place of employment. Plaintiff's Motion to Quash & Motion for Protective Order Page 8 0 IV. CONCLUSION For these reasons, Plaintiff respectfully requests that this Court GRANT Plaintiff's Motion and quash the Subpoena served on Plaintiff Taylor's current employer, ACT Disposal, LLC and should GRANT Plaintiff's Motion for the Entry of a Protective Order. Date: June 18, 2019 Respectfully submitted, ANDERSON ALEXANDER, PLLC By: /s/ Clif Alexander Clif Alexander Texas Bar No. 24064805 clif@a2xlaw.com Lauren E. Braddy Texas Bar No. 24071993 lauren@a2xlaw.com Alan Clifton Gordon Texas Bar No. 00793838 cgordon@a2xlaw.com Carter T. Hastings Texas Bar No. 24101879 carter@a2xlaw.com 819 N. Upper Broadway Corpus Christi, Texas 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 Attorneys for Plaintiff and the Putative Class Members Plaintiff's Motion to Quash & Motion for Protective Order Page 9 0 CERTIFICATE OF CONFERENCE I certify that I conferred with counsel for Defendant and they are opposed to the relief requested in this Motion. /s/ Clif Alexander Clif Alexander CERTIFICATE OF SERVICE I hereby certify that on June 18, 2019, I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Western District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/ Clif Alexander Clif Alexander Plaintiff's Motion to Quash & Motion for Protective Order Page 10