United States District Court, D. Nevada
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
WEDCO, INC., Defendant.
VALERIE P. COOKE, Magistrate Judge.
Before the court is a dispute between plaintiff U.S. Equal Opportunity Commission ("EEOC") and defendant Wedco, Inc. ("Wedco") concerning a subpoena Wedco issued to charging party Larry Mitchell ("Mr. Mitchell"). While the parties were able to reach compromise concerning many of the requests, three general categories still remain in dispute: (1) requests for Mr. Mitchell's diaries and calendars; (2) requests for Mr. Mitchell's medical and psychological records; and (3) a request for any charge Mr. Mitchell has ever filed with EEOC or a state FEPA (#59). At the January 21, 2014, case management conference, the court stayed consideration of this discovery dispute because the parties stipulated to a settlement conference (#60). The parties did not settle the case, this dispute remains unresolved, and this order follows.
I. Procedural Background
The EEOC filed suit under Title VII of the Civil Rights Act of 1964, as amended, on behalf of charging party Mr. Mitchell to address and remedy allegedly unlawful employment practices of Wedco. EEOC alleges that Wedco subjected Mr. Mitchell to racial harassment due to his race, Black; specifically, that he was subjected to a noose and racial epithets, including being called "n__ger" by his direct supervisor (#1). EEOC claims Wedco also subjected him to unequal terms and conditions of employment, including being forced to ask permission to use the toilet when others did not have to do so, having his work phone intentionally displaced to cause delay, and being given last minute instructions for deliveries that interfered with his lunch hour, all due to his race. Id.
On June 6, 2013, Wedco issued a subpoena to Mr. Mitchell, which included twenty-four requests (#37, Ex. G). Nearly all of these requests were repeated in written discovery subsequently issued to EEOC during this same time period. Id., Decl. of Elizabeth Naccarato, Ex. I. The EEOC is litigating this case on behalf of the public interest and charging party; therefore, the EEOC has standing to challenge the subpoena issued to Mr. Mitchell, both as the plaintiff and as the representative of the charging party. EEOC v. Serramonte, 237 F.R.D. 220, 223 (N.D.Cal. 2006) ("It is immaterial that [EEOC] has no standing to object as the non-recipient of the subpoenas, since it has standing as Plaintiff to file a motion to quash on all the same grounds"); e.g., Las Vegas Limited Partnership v. Simon Property Group, Inc., 2007 WL 119148, *3 (D.Nev. 2007) ("A party can, however, move for a protective order in regard to a subpoena issued to a non-party if it believes its own interest is jeopardized by discovery sought from a third party and has standing under Rule 26(c) to seek a protective order regarding subpoenas issued to non-parties which seek irrelevant information."). This court finds that EEOC also has standing to seek a protective order as to a subpoena issued to Mr. Mitchell.
II. Discussion and Analysis of Items Sought by Wedco's Subpoena
A. Requests 6, 7, & 15: Mr. Mitchell's writings, diaries, calendars from January 1, 2004, to the present
The specific requests at issue state as follows:
6. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, which support, refute or discuss the allegations in the Complaint and Jury Trial Demand ("Complaint") from the date when you were hired by Wedco until the date your employment with Wedco terminated.
7. Please produce each and every document, note, letter, computer file, e-mail, calendar or diary, which support, refute or discuss the allegations in the Complaint and Jury Trial Demand ("Complaint") from the date when your employment with Wedco terminated to the date of this request.
15. Please produce any and all diaries or calendars kept by you from January 1, 2004 to the present.
(#59, pp. 3 & 4).
The complaint alleges that as a result of racial harassment and disparate treatment while employed at Wedco, Mr. Mitchell suffered "emotional pain, suffering, humiliation, inconvenience, loss of enjoyment of life, and damages, all to be proven at trial" (#1, ¶ 16). The complaint does not allege any independent claims for emotional distress. During the parties' meet and confer, EEOC agreed to produce documents that addressed the allegations in the complaint, including diary entries or calendars, from the time Mr. Mitchell worked at Wedco to the present. Wedco, in turn, agreed to limit the time period of the documents in Category No. 15 from the date Mr. Mitchell began working at Wedco (December 2007), to one year after his employment with Wedco terminated (July 2008).
EEOC then agreed to produce documents responsive to Category Nos. 6, 7, and 15, with the exception of any diary or calendar entries that do not specifically refer to Mr. Mitchell's allegations of harassment and discrimination on the grounds that they are not relevant and would invade Mr. Mitchell's privacy and third parties' rights of privacy. Wedco's position is that any entries in diaries or calendars for the period in question are relevant to determine the extent to which Mr. Mitchell did not find the conduct sufficiently harassing to write about it. Such diary or calendar entries may also be ...