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Ortega v. Management and Training Corp.

United States District Court, D. New Mexico

September 25, 2017

ALEJANDRO ORTEGA, Plaintiff,
v.
MANAGEMENT AND TRAINING CORPORATION, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO QUASH AND FOR PROTECTIVE ORDER

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before the Court on Plaintiff's Motion to Quash and for Protective Order [Doc. 47], filed August 15, 2017. Defendant responded on August 29, 2017. [Doc. 50].

         Plaintiff replied on September 11, 2017. [Doc. 52]. The Court has considered the briefing, the relevant portions of the record, and the relevant law. Being otherwise fully advised in the premises, the Court finds that the Motion is not well-taken and will be DENIED.

         I. BACKGROUND

         In this action Plaintiff sues his former employer, Management and Training Corporation (“MTC”), for race discrimination and retaliation. Defendant operates the Otero County Processing Center. Plaintiff worked for Defendant as a Gang Intelligence Sergeant from October 2009 until his termination in February 2014. He claims he was wrongfully terminated on the basis of his race or retaliation for filing a Fair Labor Standards Act complaint against Defendant. He seeks economic damages for back pay, emotional distress, and punitive damages.

         Defendant denies Plaintiff's claims and asserts that it had legitimate, non-discriminatory grounds for terminating Plaintiff.

         Defendant has raised the affirmative defense of failure to mitigate damages and has sought discovery on Plaintiff's post-MTC employment and wages. Plaintiff has had three other employers since his termination from Defendant. Defendant asked Plaintiff to sign an employment records release so that Defendant could obtain his employment records from those subsequent employers. Plaintiff refused to provide the release. Defendant subsequently served subpoenas on the three employers. The subpoenas seek:

A copy of Plaintiff Alejandro Ortega's complete personnel file including, but not limited to job applications, contracts of agreement or employment, performance evaluation reports, payroll records, W-2 forms, and all other information and/or records, reports, or memoranda on file of every kind and character, and opinions, written or oral, etc., regarding Mr. Ortega's employment.

[Doc. 47] at 3.

         Plaintiff filed this motion for a protective order quashing the subpoenas on the grounds that production of his personnel records would cause “annoyance, embarrassment, and oppression.” Id. at 6. Additionally, Plaintiff claims that his personnel records from subsequent employers are irrelevant and “have [no] bearing on the claims and defenses asserted in this matter.” Id. Defendant argues that the requested documents are relevant to Plaintiff's claim for lost wages and whether he properly mitigated his damages. [Doc. 50] at 2-3.

         II.ANALYSIS

         A. Legal Standards

         1. Fed.R.Civ.P. 45

         Rule 45 provides for the issuance of subpoenas to third parties. A court may quash or modify a subpoena that requests privileged or protected information or subjects a person to undue burden. Fed.R.Civ.P. 45(d)(3)(A). Overbreadth and irrelevance are not contained within Rule 45's list of enumerated reasons for quashing a subpoena. It is generally accepted, however, that the scope of discovery under a subpoena is the same as the scope of discovery under Rules 26(b) and 34. See, e.g., Frick v. Henry Indus., Inc., 2016 WL 6966971, at *2 (D. Kan. Nov. 29, 2016) (unreported); Fed.R.Civ.P. 45(d)(1) advisory committee's note to 1970 amendment (the 1970 amendments “make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules”); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (2d ed.) (scope of discovery through a subpoena is “exceedingly broad” and incorporates the provisions of Rules 26(b) and 34). Thus, the court must examine whether a request contained in a subpoena is overbroad or seeks ...


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