United States District Court, D. Maryland
Nicholas Edward Johansson Office of the Attorney General
Counsel and Mr. Chen
18, 2015, Plaintiff Ying-Jun Chen filed a complaint against
his former employers, the Maryland Department of Health and
Mental Hygiene (“MDHMH”) and the Maryland Health
Care Commission (“MHCC”), and several agency
personnel, alleging harassment and discrimination based on
national origin, in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e
et seq. (“Title VII”), the Fourteenth
Amendment to the United States Constitution, and Article 26
of the Maryland Declaration of Rights. [ECF No. 1]. The case
has been referred to me by Judge Hollander to resolve
Defendants' Motion to Compel Discovery Responses, [ECF
No. 43]. [ECF No. 44]. No hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
set forth herein, Defendants' Motion is GRANTED IN PART
AND DENIED IN PART.
early 2017, Defendants served Plaintiff with a discovery
request seeking Plaintiff's income records, tax returns,
and other financial information for the period from 2005 to
the present. [ECF No. 43]; see [ECF No. 40]. On
February 10, 2017, Plaintiff objected to Defendants'
request on the grounds that his financial records contained
“privileged and private” information. [ECF No.
43, Ex. 1]; see [ECF No. 45]. However, Plaintiff
also produced a selection of his pay stubs from the period
requested. Id. On March 15, 2017, Defendants
responded to Plaintiff's objection, arguing that the
requested records “directly pertain[ed] to
[Plaintiff's] lost wages claim” and were not
privileged. [ECF No. 43, Ex. 1]. On March 17, 2017, Plaintiff
stated that he would only “provide [Defendants] with
[the requested records] in the context of negotiating for a
settlement agreement, ” and would “present them
to [Defendants] if/when [the] settlement conference
resumes.” [EXF No. 43, Ex. 2]. However, Plaintiff
refused to otherwise submit the requested records.
Subsequently, on April 17, 2017, Defendants filed the instant
motion to compel. [ECF No. 43].
Rule of Civil Procedure 26(b)(1) permits discovery of
“any non privileged 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). In determining
proportionality, the Court must consider “the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.” Fed.R.Civ.P. 26(b)(1). Federal Rule 34, which
governs requests for document production, permits parties to
request the production of any documents or electronically
stored information within another party's possession,
custody, or control. Fed.R.Civ.P. 34(a).
ask this Court to compel Plaintiff's financial records in
order to verify Plaintiff's claim that he “has lost
wages and has been unable to secure employment since January
2012.” [ECF No. 43]. Specifically, Defendants request
that Plaintiff produce:
Pay stubs, payroll records, earnings records, and all other
documents (including ESI) relating to any and all sources of
income or earnings for the period from 2005 to the present,
including, but not limited to, your state, federal, and local
income tax returns, W-2 and 1099 forms, and all other forms,
schedules and attachments, any pay stubs, payroll records,
documents pertaining to retirement benefits and plans, health
insurance, wages, salary and any other compensation from any
[ECF No. 43, Ex. 1]. In opposition, Plaintiff contends that
Defendants' proposed discovery is unwarranted because it
seeks “privileged and private”
Federal Rule of Civil Procedure 26(b)(1), Defendants are
entitled to discover Plaintiff's “pay stubs,
payroll records, earnings records, ” “W-2 and
1099 forms, ” and “all other documents (including
ESI) relating to any and all sources of income or earnings,
” including any “documents pertaining to
retirement benefits and plans, health insurance, wages,
salary and any other compensation[.]” [ECF No. 43].
Defendants' requested records directly pertain to
Plaintiff's lost wages claim and are relevant to the
determination of Plaintiff's damages. See Neel v.
Mid-Atl. of Fairfield, LLC, No. SAG-10-CV-405,
2012 WL 3264965 (D. Md. Aug. 9, 2012) (permitting discovery
of payroll, income, health insurance, and other records in
lost wages claim to determine damages); see also Peters
v. Baltimore City Bd. of Sch. Comm'rs, No.
CIV. WMN-13-3114, 2014 WL 4187307, at *7, n.1 (D. Md. Aug.
21, 2014) (noting that “W-2s and payroll
records…are ordinarily discoverable in the employment
law context[.]”). Although Plaintiff objects to
Defendants' request on the grounds of privilege,
Plaintiff failed to provide a privilege log or
“describe the nature of the withheld documents or
communications, as required by the Local Rules and Federal
Rule of Civil Procedure 26(b)(5)(A).” Hake v.
Carroll Cty., Md., No. CIV. WDQ-13-1312, 2014 WL
3974173, at *9 (D. Md. Aug. 14, 2014) (citing Local Rule
App'x A, Guideline 10 (D. Md. 2014) and Fed.R.Civ.P.
26(b)(5)(A)); see Anderson v. Caldwell Cnty.
Sheriff's Office, 1:09cv423, 2011 WL
2414140, at *2 (W.D. N.C. June 10, 2011) (internal quotation
marks and citation omitted) (holding that “[a] party
simply cannot claim privilege and refuse to provide a
privilege log; indeed, some courts have found that doing so
results in waiver of the privilege.”). Moreover,
Plaintiff appears to have waived any applicable privilege or
protection by intentionally producing several pay stubs from
the period requested. See Fed. R. Evid. 502(b).
Therefore, “[t]o the extent that Plaintiff asserts a
continued objection to [Defendants'] request to payroll
documents on the basis of privilege after disclosing those
documents voluntarily to the Defendant[s], the Court finds
such objections without merit.” Peters, 2014
WL 4187307, at *4.
Defendants' request must be modified because the burden
associated with the requested discovery is significantly
disproportional to what is in dispute in this litigation.
Most significantly, Defendants seek financial records that
predate Plaintiff's termination. [ECF No. 43].
Specifically, although Plaintiff was terminated on January
18, 2012, Defendants seek records regarding Plaintiff's
finances from 2005 to the present. Id. Discovery of
Plaintiff's records prior to his termination bears
minimal relevance to his lost wages claim and “has the
potential to uncover intrusive information that is not
relevant to the present action.” Peters, 2014
WL 4187307, at *5; see Singletary v. Sterling Transport
Co., 289 F.R.D. 237, 241-42 (E.D. Va. 2012) (finding
that subpoenas seeking the plaintiff's entire employment
file from former employers, which was “not limited to
seeking only those documents relevant” to his claims
were “overly broad on their face”). Considering
the relatively low utility of Plaintiff's financial
records prior to his termination, and the considerable burden
in producing those records from the last twelve years,
Defendants' request will be limited to the period from
January 18, 2012, the date of Plaintiff's termination, to
the present. Additionally, because Plaintiff's financial
records contain sensitive information, they should be
produced under a confidential designation for attorney's
eyes only. Randolph v. ADT Sec. Servs., Inc., No.
DKC 09-1790, 2012 WL 2234362, at *11 (D. Md. June 14, 2012).
I am unpersuaded that Defendants are entitled to discover
Plaintiff's tax returns. Although the Fourth Circuit has
not developed a clear rule as to the discoverability of tax
returns, in general, disclosure of tax returns is disfavored.
Susko v. City of Weirton, No. 5:09-CV-1, 2010 WL
3584425, at *3 (N.D. W.Va. Sept. 10, 2010) (“Judicial
consensus exists that, as a matter of policy, great caution
should be exercised in ordering the disclosure of tax
returns”); Eastern Auto Distribs., Inc. v.
Peugeot Motors of Am., Inc., 96 F.R.D. 147,
148-49 (E.D. Va. 1982) (“A ‘qualified'
privilege emerges from the case law that disfavors the
disclosure of income tax returns as a matter of general
federal policy”). “The majority rule that has
emerged from federal case law is that a two-prong test should
be applied to determine if the qualified privilege protecting
tax returns is overcome.” Hastings v.
OneWest Bank, FSB, No. GLR-10-3375, 2013 WL 1502008, at
*2 (D. Md. Apr. 11, 2013) (internal citations omitted).
“Under this test, tax returns are discoverable if (1)
they are relevant to a matter in dispute; ...