United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION TO QUASH AND FOR
STEPHAN M. VIDMAR United States Magistrate Judge.
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].
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.
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
denies Plaintiff's claims and asserts that it had
legitimate, non-discriminatory grounds for terminating
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.
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.
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 ...