United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
P. Gesner United States Magistrate Judge
pending before the court are Plaintiff's Motion to Compel
Subpoena Compliance Directed to Nonparty Charlotte Perkins
(“Plaintiff's Motion”) (ECF No. 186),
Defendant's Opposition to Plaintiff's Motion
(“Defendant's Opposition”) (ECF No. 187), and
Plaintiff's Reply in Support of Plaintiff's Motion
(“Plaintiff's Reply”) (ECF No. 188). No
hearing is necessary. Loc. R. 105.6. For the reasons
discussed below, Plaintiff's Motion is GRANTED in part
and DENIED in part.
the United States Equal Employment Opportunity Commission
(“plaintiff, ” or “EEOC”), filed this
employment action against defendants Performance Food Group,
Inc. and associated entities on June 13, 2013, alleging
unlawful sex-based discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, et seq. (ECF No. 1.) The case was referred to
the undersigned by Judge Garbis for all discovery and related
scheduling, pursuant to 28 U.S.C. § 636(c) and Local
Rule 301, on September 2, 2014. (ECF No. 57.) Since then, the
parties have engaged the court on many occasions to resolve a
range of discovery disputes, both narrow and
broad. Most recently, on April 4, 2017, plaintiff
filed a letter requesting guidance from the court as to how
to proceed to resolve a discovery dispute between plaintiff
and a nonparty. (ECF No. 184.) Although the court had
previously made available to counsel its expedited discovery
dispute resolution procedures, the undersigned advised
plaintiff that expedited procedures were not appropriate in
this instance, and noted that plaintiff should proceed in
accordance with Federal Rule of Civil Procedure
(ECF No. 185.) Plaintiff subsequently filed the instant
Motion on April 24, 2017 identifying Ms. Charlotte Perkins as
the nonparty. (ECF No. 186.) On May 8, 2017, defendant
Performance Food Group, Inc. (“defendant, ” or
“PFG”) timely filed an opposition (ECF No. 187)
and plaintiff replied on May 15, 2017 (ECF No. 188). Ms.
Perkins did not file an opposition and the time to do so has
expired. Plaintiff's Motion is now ripe for the
instant dispute centers around a subpoena that plaintiff
served on Ms. Perkins, defendant's former Chief Human
Resources Officer (“CHRO”), on August 1, 2016
commanding Ms. Perkins to attend a deposition and produce
documents. (ECF No. 186 at 3.) The subpoena was based on
plaintiff's understanding that “Ms. Perkins has
information and documents relevant to the present action by
virtue of her previous position with Defendant; and based on
experiences leading to her own charge of discrimination based
on sex that she filed with the EEOC following her termination
or resignation from Defendant in 2008.” (Id.)
According to plaintiff, Ms. Perkins later withdrew her EEOC
charge as part of a confidential settlement agreement entered
into with defendant in an unrelated case filed in Virginia
state court (the “Virginia
action”). (Id. at 3-4.) Ms. Perkins did not
file a motion to quash or otherwise object to the subpoena
until she appeared for her deposition on August 9, 2016, at
which time she refused to answer any questions pertaining to
the Virginia action or her EEOC charge, among other
topics. (Id. at 4- 5.) She claimed, in
part, that she was prohibited from testifying on these
matters due to a private settlement agreement. (Id.
at 5.) Regarding the subpoena's command to produce
documents, Ms. Perkins initially claimed that they were in
the possession of her former attorneys, but after her
deposition, she served written objections through her
then-current attorney claiming that the documents were
“protected from disclosure pursuant to a protective
order or a settlement agreement absent a court
order.” (Id. at 7.) Although Ms. Perkins
has not particularized the basis for her objections,
plaintiff assumes that the prior settlement agreement in the
Virginia action contains some form of prohibitory clause
(id. at 8), and that Ms. Perkins fears retaliation
from defendant. (ECF No. 188 at 1.)
plaintiff seeks an order from this court compelling Ms.
Perkins to comply with the subpoena issued on August 1, 2016.
Specifically, plaintiff requests that the court: (1) order
Ms. Perkins to answer the questions she refused to answer
during her August 9, 2016 deposition; (2) order her to
produce the documents commanded by the subpoena; and (3)
order the continuance of her deposition at the EEOC's
Baltimore field office within sixty days, and for a period of
not less than four hours. (ECF No. 186 at 3.) In support of
its Motion, plaintiff argues that private parties cannot
contract to prohibit a person from complying with compulsory
process, and that the sealing of any such agreement in
Virginia state court has no effect on the enforceability of
the subpoena in federal court. (Id. at 9-10.)
Defendant opposes only the scope and continuance of the
deposition, arguing that plaintiff unduly delayed and that
Ms. Perkins already answered all relevant
questions. (ECF No. 187 at 2-8.) As noted, Ms.
Perkins did not file an opposition.
nonparty objects to a Rule 45 subpoena, it may “file a
motion to quash or modify the subpoena pursuant to [Fed. R.
Civ. P. 45(d)(3)(A)], seek a protective order pursuant to
Fed.R.Civ.P. 26(c), or . . . object to production of
documents by opposing a motion to compel under [Fed. R. Civ.
P. 45(d)(2)(B)].” United States v. Star Scientific,
Inc., 205 F.Supp.2d 482, 484 (D. Md. 2002). A party
generally has standing to challenge a nonparty subpoena where
the party “claims some personal right or privilege in
the information sought.” United States v.
Idema, 118 F. App'x 740, 744 (4th Cir. 2005). A
subpoena must be quashed or modified when it: (1) does not
allow a reasonable time to respond; (2) requires a nonparty
to travel more than 100 miles from where the nonparty
resides, is employed, or regularly transacts business in
person; (3) requires disclosure of privileged matters; or (4)
subjects a person to undue burden. Fed.R.Civ.P. 45(d)(3)(A),
45(c). A subpoena may be quashed or modified in certain other
limited circumstances, including where the subpoena requires
the disclosure of confidential commercial information or the
opinions of unretained experts. Fed.R.Civ.P. 45(d)(3)(B).
scope of discovery allowed under a subpoena is the same as
the scope of discovery allowed under Rule 26.”
Phillips v. Ottey, No. DKC 14-0980, 2016 WL 6582647,
at *2 (D. Md. Nov. 7, 2016) (quoting Singletary v.
Sterling Transp. Co., 289 F.R.D. 237, 240-41 (E.D. Va.
2012)) (internal quotation marks omitted). Rule 26(b)(1)
allows a party to “obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case,
considering 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).
Scope and Continuance of the Deposition
contends that a continuance of Ms. Perkins' deposition is
unnecessary because “[Ms.] Perkins' refusal to
answer certain questions . . . related to a confidentiality
agreement that she executed relating to her personal lawsuit
against PFG, and not to the issues in this lawsuit.”
(ECF No. 187 at 2.) Defendant further contends that
“[Ms.] Perkins' breach of contract and tort based
claims against PFG [in the Virginia action] have nothing to
do with the allegations that PFG discriminated against female
applicants, ” and that “[o]ther questions that
[Ms.] Perkins refused to answer . . . bear little
relationship to the substance of this case.”
(Id. at 7.)
defendant takes a far too restrictive view of the Rule 26
relevancy standard. Even if the Virginia action and resulting
settlement made no mention of any allegations of sex
discrimination-a highly unlikely contention-at the very
least, documents and testimony in that matter would have
concerned Ms. Perkins' role as CHRO, where she was
uniquely positioned to acquire information relevant to the
allegations of “systemic” sex discrimination in
this case. (See ECF No. 188 at 3-4.) Indeed, several
of plaintiff's deposition questions are specifically
directed to the nature of Ms. Perkins' employment with
defendant and the circumstances of her termination, as well
as her statements to EEOC investigators concerning her own
allegations of sex discrimination. See note 4 above.
There can be no doubt that the scope of this questioning is
relevant and permissible under the Federal Rules, and that
Ms. Perkins' responses are inadequate.
further objects to the continuance of Ms. Perkins'
deposition on the basis of undue delay, arguing that
plaintiff waited nearly nine months to file its Motion on the
eve of the fact discovery deadline. (ECF No. 187 at 2.)
Plaintiff argues that any delay is due to a lack of
cooperation by Ms. Perkins and her counsel, which defendant
could have easily facilitated. (ECF No. 188 at 2-3.) Although
the deadline for fact discovery has indeed passed, there is
ample time left in the current schedule for the parties to
prepare for and conduct a continuance of Ms. Perkins'
deposition,  especially considering that defendant has
been well on notice of plaintiff's intent to continue the
deposition on the subjects Ms. Perkins refused to address.
Accordingly, in the absence of any apparent prejudice to
defendant, the court will order the continuance of Ms.
Perkins' deposition. Further, given Ms. Perkins'
blatant noncooperation, the court will require her to attend
the deposition at the EEOC's Baltimore office, which is
within 100 miles of her residence. See Fed.R.Civ.P.
45(d)(3)(A)(ii), 45(c). In consideration of the current
schedule and the anticipated burden to Ms. Perkins, however,
the court will limit the length of the deposition to a
maximum of two hours, and require that it be scheduled within
thirty (30) days of the date of this Order. Plaintiff shall
limit the scope of its inquiry to those subjects that Ms.
Perkins refused to address in her original deposition, and
that plaintiff has identified in paragraphs 8 and 9 of its
Motion. (See ECF No. 186 at 5-6.)
now to Ms. Perkins' confidentiality objections,
is well established that the Fourth Circuit does not
recognize a settlement privilege, and that confidential
settlement materials are not automatically shielded from
discovery. See Nat'l Union Fire Ins. Co. v. Porter
Hayden Co., No. CCB-03-3408, 2012 WL 628493, at *3 (D.
Md. Feb. 24, 2012); Phillips, 2016 WL 6582647, at
*3-4 (denying motion to quash nonparty disclosure of
confidential settlement agreement). Rather, the standard
practice in this district is to require the parties to
address confidentiality and privacy concerns through the
court's stipulated confidentiality order. See Fangman
v. Genuine Title, LLC, No. RDB-14-0081, 2016 WL 560483,
at *4-5 (D. Md. 2016) (concluding that stipulated
confidentiality order adequately protects privacy of
nonparties). Neither defendant nor Ms. Perkins has responded
to plaintiff's position on this issue, and the court does
not perceive on its own any circumstances warranting a
modification of plaintiff's subpoena. Accordingly, Ms.
Perkins' objections are overruled to ...