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Papanicolas v. Project Execution & Control Consulting, LLC

United States District Court, District of Maryland, Southern Division

March 17, 2015



Charles B. Day United States Magistrate Judge

Before this Court is Plaintiff’s Motion to Quash (ECF No. 134) (the “Motion”) and the opposition thereto. The Court has reviewed the Motion, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES the Motion.

I. Factual Background

On May 28, 2012, Michelle Papanicolas (Sipe) (“Plaintiff”) filed a complaint against Project Execution and Control Consulting, L.L.C. (d/b/a PEAC Consulting, L.L.C.) (“PEAC”) and Barington Cromuel (“Defendant”) for sexual harassment. ECF No. 4. Plaintiff alleges that Defendant sexually harassed her and terminated her employment as retaliation for reporting harassing behavior. Defendant claims that Plaintiff was terminated for falsifying employment information. On November 15, 2014, Defendant filed Defendant’s Request to Subpoena Plaintiff’s Previous and Current Employment Applications Documents as Evidence for Defendant’s Defense and Proof of Defendant’s Arguments (ECF No. 116) (the “Request to Subpoena”). On November 6, 2014, this Court granted in part and denied in part the Request to Subpoena, noting specifically that Defendant could subpoena Plaintiff’s current and former employers for Plaintiff’s resumes employment applications, and documents identifying Plaintiff’s previous employment but could not request other documents or materials such as background checks or human resources documents.

Plaintiff alleges in the Motion that on January 22, 2015, she was informed by a third party that Defendant had issued a subpoena requesting “any and all documents” “identifying the previous employment” of Plaintiff. She argues that the subpoena requested irrelevant information and that Defendant did not provide her with a copy of the subpoena before issuing the subpoena. Defendant argues that the subpoena requests information that this Court has deemed discoverable. He also alleges that he provided prior notice of the subpoenas to Plaintiff in a January 12, 2015, email. ECF No. 137-1.

II. Discussion

Under the Federal Rules of Civil Procedure, where a party seeks to subpoena “documents, electronically stored information, or tangible things” from third parties, then “before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.” Fed.R.Civ.P. 45(a)(4). In addition, as relevant here, a district court must quash a subpoena if it “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). This Court has previously explained that “[t]he burden of proving that a subpoena is oppressive is on the party moving to quash.” Maxtena, Inc. v. Marks, 289 F.R.D. 427, 439 (D. Md. 2012) (citations omitted).

a. Plaintiff has standing to challenge the subpoenas.

As a threshold matter, this Court must determine whether Plaintiff has demonstrated she has standing to challenge Defendant’s subpoenas to third parties. The Fourth Circuit has held that while “[o]rdinarily, a party does not have standing to challenge a subpoena issued to a nonparty” it may do so if it “claims some personal right or privilege in the information sought by the subpoena.” United States v. Idema, 118 Fed.Appx. 740, 744 (4th Cir. 2005). The Fourth Circuit has also held that a party seeking to quash subpoenas requesting their employment records “has standing to challenge the subpoenas duces tecum addressed to his former employers and seeking his previous employment records.” Singletary v. Sterling Transport Co., Inc., 289 F.R.D. 237, 240 (4th Cir. 2012). As in Singletary, Plaintiff here seeks to quash subpoenas requesting, inter alia, former employment records, and thus has standing to bring the Motion.

b. The subpoenas request discoverable information.

Plantiff argues that the subpoena should be quashed because the subpoena requests information that is not discoverable. The Fourth Circuit has explained that “the scope of discovery allowed under a subpoena is the same as the scope of discovery allowed under . . . the relevancy standards set forth in Rule 26(b)” which “limits the scope of discovery to those materials that are ‘relevant to any party's claim or defense’ meaning they are ‘reasonably calculated to lead to the discovery of admissible evidence.’” Singletary, 289 F.R.D. at 241 (citing Fed.R.Civ.P. 26(b)(1)). Here, Plaintiff claims that she was fired as retaliation for reporting sexual harassment. Defendant argues that he fired Plaintiff for falsifying employment information. The information Plaintiff provided to other employers could support the notion that she was less than truthful in providing her employment information. For that reason, this Court holds now, as it previously held at the motions hearing on November 6, 2014, that the information sought via Defendant’s subpoenas is discoverable.

c. Plaintiff’s argument that the subpoenas will lead to the admission of character evidence is misplaced.

Under Federal Rules of Civil Procedure, a party may discover anything that is “relevant to any party's claim or defense, ” and evidence is relevant if it is “reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Information may be reasonably calculated to lead to admissible evidence without necessarily being admissible. Thus, while Plaintiff is right that generally “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or ...

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