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In re Subpoena of Employment Background Investigations, Inc.

United States District Court, D. Maryland

August 29, 2017

THE MIDDLESEX CORP. Defendant. MARSHALL MYRICK, on behalf of himself and on behalf of all others similarly situated, Plaintiff,

         Related Case: 8:17-cv-261-JDW-MAP in the U.S. District Court for the Middle District of Florida


          Ellen Lipton Hollander, United States District Judge.

         This Memorandum resolves the Motion to Quash (ECF 1) filed by Employment Background Investigations, Inc. (“EBI”) pursuant to Fed.R.Civ.P. 45. It concerns two subpoenas served on EBI by the plaintiff in the class action lawsuit captioned Myrick v. The Middlesex Corporation, Case No. 8:17-cv-261-JDW-MAP, pending in the Middle District of Florida (“Florida Case” or “Fla. Case”).[1] The motion is supported by a memorandum of law (ECF 1-1) (collectively, “Motion”), and several exhibits. See ECF 1-2 through ECF 1-5.

         EBI is not a party to the Florida case. The Motion was filed in the District of Maryland because compliance with the subpoenas is required in this District. See Fed. R. Civ. P. 45(d)(3)(A).

         Although the Motion reflects service on counsel for the parties in the Florida Case (ECF 1 at 3), no party has responded to the Motion. See docket. A hearing is not necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

         I. Factual and Procedural Background

         Marshall Myrick initiated the Florida Case on February 1, 2017, alleging that The Middlesex Corporation (“Middlesex”) violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq. See ECF 1-4 (Complaint in Fla. Case). In particular, Myrick alleges that, through an outside consumer reporting firm, Middlesex conducts background checks on “the majority of its prospective employees” and on “current employees from time to time.” Id. ¶¶ 16-17. But, he complains that Middlesex “does not provide prospective or current employees with a copy of their consumer reports before taking adverse action against them based on the information in such reports.” Id. ¶ 25.

         Plaintiff asserts, id. at 27:

By failing to provide Plaintiff and other Putative Class members with copies of their consumer reports prior to taking adverse employment action against them based on the information contained in such reports, Defendant willfully disregarded . . . unambiguous regulatory guidance as well as the plain language of the statute, in violation of 15 U.S.C. § 1681 b(b)(2)(A).

         According to plaintiff, he applied for a job as a construction worker with Middlesex in September 2016. Id. ¶ 28. He received an offer of employment, subject to a background check. Id. ¶ 30. Middlesex then procured a consumer report on plaintiff, conducted by EBI. Id. ¶ 31; see ECF 1-1 at 3. Thereafter, on November 28, 2016, plaintiff was terminated. Id. ¶ 32. Plaintiff maintains that he was terminated as a result of the content of his consumer report. Id. ¶ 33. However, he alleges that he was given “no pre-adverse notice whatsoever of the information contained in the consumer report . . . .” Id.

         Middlesex answered the Complaint on March 17, 2017. Fla. Case, ECF 7. Judge James Whittemore, to whom the case is assigned, issued a Scheduling Order on May 2, 2017. Fla. Case, ECF 14. Among other things, the Scheduling Order sets March 15, 2018, as the deadline for the completion of discovery and provides that trial will begin on August 6, 2018. Id.

         On June 19, 2017, plaintiff issued a subpoena to EBI, commanding a corporate representative to appear at a deposition in Baltimore on July 14, 2017, pursuant to Fed.R.Civ.P. 45 and Fed.R.Civ.P. 30(b)(6). ECF 1-2 (“Deposition Subpoena”). The Deposition Subpoena provided that the corporate representative must have knowledge sufficient to testify as to 39 topics, including, id.:

7. Since February 1, 2015, EBI's policies, practices, and procedures - including the governing contracts, agreements, or statements of work - for furnishing employment purposed consumer reports to Lowe's [sic] and any of its subsidiaries.
8. The general substance, detail, and archive data available to you regarding the content, substance, dates, and nature of consumer reports you furnished for employment purposes since February 1, 2015.
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11. EBI's policies, practices, and procedures regarding compliance with the FCRA, including but not limited to 15 U.S.C. § 1681b(b)-"Conditions for furnishing and using consumer reports for employment purposes, " that EBI shared with or provided to the Defendant in this lawsuit. By definition this includes both online forms, and forms given to applicants in person.
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14. All agreements and contracts between EBI and Defendant.
15. Any investigations into EBI in any state or federal agency for violations of the FCRA.
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18. Since April 8, 2011, the materials- including training manuals, PowerPoint presentations, live training, and webinars - you made available to your employees pertaining to compliance with ...

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