The Employer Subpoenas (each with requests for production of identical documents) are directed to two sets of employers: those that employed Plaintiff before his employment with Defendant (hereinafter the prior employers)[2] and those after his employment with Defendant (hereinafter the subsequent employers).[3]

Defendant filed a consolidated Response to Plaintiff's Motions Regarding Employer Subpoenas (ECF No. 90) (hereinafter “Defendant's Response Regarding Employer Subpoenas”); Plaintiff did not file a reply. Defendant also filed a consolidated Response to Plaintiff's Motions Regarding Attorney Subpoenas (ECF No. 71) (hereinafter “Defendant's Response Regarding Attorney Subpoenas”), and Plaintiff followed by filing a Reply (ECF No. 87) (hereinafter “Plaintiff's Reply Regarding Attorney Subpoenas”). Plaintiff filed no response to Defendant's Motion to Quash Deposition Notice.

For the reasons that follow, the Court GRANTS Plaintiff's Motions Regarding Employer Subpoenas directed to the prior employers; GRANTS IN PART AND DENIES IN PART Plaintiff's Motions Regarding Employer Subpoenas directed to Plaintiff's subsequent employers; GRANTS IN PART AND DENIES IN PART Plaintiff's Motions Regarding Attorney Subpoenas; and GRANTS Defendant's Motion to Quash Deposition Notice.

*2 Under Federal Rule of Civil Procedure 26(b),

Fed. R. Civ. P. 26(b)(1).

Although the scope of discovery is broad, “its processes must be kept within workable bounds on a proper and logical basis for the determination of the relevancy of that which is sought to be discovered.” Jones v. Metzger Dairies, Inc., 334 F.2d 919, 925 (5th Cir. 1964). “When the discovery appears relevant the burden is on the party objecting to show that the discovery is not relevant. When relevancy is not apparent, however, it is the burden of the party seeking discovery to show the relevancy of the discovery request.” Cuthbertson v. Excel Indus., Inc., 179 F.R.D. 599, 603 (D. Kan. 1998) (brackets, internal quotation marks, and citations omitted).

The scope of discovery is within the sound discretion of the trial judge, see Freeman v. United States, 556 F. 3d 326, 341 (5th Cir. 2009), who may “tailor discovery narrowly and ... dictate the sequence of discovery,” Crawford–El v. Britton, 523 U.S. 574, 598 (1998). However, the Court must limit discovery, if it determines, on motion or on its own, that “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” or “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Rule 26(b), although broad, may not be used “as a license to engage in an unwieldy, burdensome, and speculative fishing expedition.” Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (5th Cir. 2010).

Federal Rule of Civil Procedure 26(c) governs protective orders and provides, in relevant part: “A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). Thus, the court may, inter alia, “forbid[ ] the disclosure or discovery”; “forbid[ ] inquiry into certain matters, or limit[ ] the scope of disclosure or discovery to certain matters”; or “prescribe[ ] a discovery method other than the one selected by the party seeking discovery.” Fed. R. Civ. P. 26(c).

Rule 26(c)'s requirement of a showing of good cause places the burden on the party seeking the protective order to show the necessity of its issuance, by making “a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quotation marks and citations omitted).

*3 Federal Rule of Civil Procedure 45 governs discovery from non-parties through the issuance of subpoenas. See Fed. R. Civ. P. 45 advisory committee's notes to 2013 amendment (In Rule 45, “ ‘person’ is substituted for ‘party’ because the subpoena may be directed to a nonparty.”); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2456 (3d ed) (“The subpoena duces tecum is the only way to compel a nonparty to produce documents or other materials.”). A subpoena may command “production of documents ... at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(2)(A); see also id. 45(d)(2)(A) (“A person commanded to produce documents ... need not appear in person at the place of production ... unless also commanded to appear for a deposition, hearing, or trial.”).

As with any other forms of discovery, the scope of discovery through a Rule 45 subpoena is governed by Rule 26(b). See Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437 CFD, 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007) (citing, inter alia, Fed. R. Civ. P. 45 advisory committee's notes to 1970 amendment (stating “the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules”)); Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 236 (D. Minn. 2013) (“[S]ubpoenas issued under Rule 45 are subject to the same constraints that apply to all of the other methods of formal discovery.” (internal quotation marks and citation omitted)). Thus, while “Rule 45 does not list irrelevance or overbreadth as reasons for quashing a subpoena[,]... the [c]ourt must review... subpoenas duces tecum under the relevancy standards set forth in Rule 26(b).” HDSherer LLC v. Nat. Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013). A court may find that a subpoena presents an undue burden when the subpoena is facially overbroad. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004).

Rule 45(d)(3) sets forth the procedures for challenging a subpoena. On a timely motion, “the court for the district where compliance is required must quash or modify a subpoena” that requires “disclosure of privileged or other protected matter” or “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).

Plaintiff moves pursuant to Rule 45(d)(3) (motion to quash or modify) as well as Rule 26(c) (motion for protective order). E.g., Pl.'s Mot. Re. Att'y Subpoena at 1, ECF No. 69; Pl.'s Mot. Re. Employer Subpoena at 1, ECF No. 72. The Court will treat Plaintiff's motions as motions for protective orders and evaluate the subject subpoenas under Rule 26(b). See, e.g., Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 22 (D.D.C. 2005) (“The Court... deems defendant's motions to quash as, in the alternative, motions for a protective order, and will evaluate the motions according to the standard enunciated in Rule 26.”); McMillan v. J.P. Morgan Chase Bank, N.A., No. CV 15–500–SDD–RLB, 2017 WL 373447, at *1 (M.D. La. Jan. 25, 2017) (“With regard to the subpoenas served on ... non-parties, the Court has the authority to issue a protective order to protect [a party] ‘from annoyance, embarrassment, oppression, or undue burden or expense.’ ” (quoting Fed. R. Civ. P. 26(c)(1))).

Although Defendant does not contest Plaintiff's standing to challenge the Attorney Subpoenas,[4] it contends that Plaintiff lacks standing to challenge the Employer Subpoenas, which seek production of Plaintiffs' personnel files from his former employers. See Def.'s Resp. Re. Emp'r Subpoenas at 6–7. Defendant argues that the employers are not party to this suit and Plaintiff does not have any personal right with respect to the subject matter of the subpoenas. Id. The Court disagrees.

*4 To challenge a subpoena duces tecum issued to a non-party, a party must have a personal right or privilege with respect to the subpoenaed materials. See, e.g., Adams v. Dolgencorp, LLC, No. 11–784–FJP–DLD, 2012 WL 2064556, at *2 (M.D. La. June 7, 2012) (“Under [Rule 45(d)(3)], the subpoenaed entity is the only one entitled to challenge the subpoena unless a showing is made that a party has a personal right to be protected or that the documents are subject to a privilege.” (brackets, internal quotation marks, and citations omitted)); Firetrace USA, LLC v. Jesclard, No. CV–07–2001–PHX–ROS, 2008 WL 5146691, at *2 (D. Ariz. Dec. 8, 2008)) (“[U]nder either [Rule 45(d)(3)(A) or Rule 26(c)] a party may prevent the disclosure of information from a nonparty by showing a claim of personal right or privilege.”)[5] But see Garcia v. Prof'l Contract Servs., Inc., No. A–15–CV–585–LY, 2017 WL 187577, *1 (W.D. Tex. Jan. 17, 2017) (“[A] party has standing to move for a protective order pursuant to Rule 26(c)... even if the party does not have standing pursuant to Rule 45(d) to bring a motion to quash a third-party subpoena.” (internal quotation marks and citation omitted)).

Courts have also held, and this Court agrees, that “an employee has a personal right to his personnel files, and therefore has standing to challenge a subpoena for his personnel files.” Id.; see also, e.g., Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 239 (E.D. Va. 2012) (“[N]umerous courts from within a wide variety of circuits have approved” that “a party possesses a personal right in the information contained in employment records sufficient to confer standing.” (listing illustrative cases)). Cf. Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994) (stating that turning over personnel files would invade the privacy of employees). Accordingly, the Court finds that Plaintiff has standing to challenge the Employer Subpoenas.

“As an initial matter,” Defendant argues, “this Court has already determined that records from Plaintiff's employers after he was fired by Defendant [i.e., Plaintiff's subsequent employers] are discoverable.” Def.'s Resp. Re. Emp'r Subpoenas at 2. Defendant points to the Magistrate Court's Order issued on August 19, 2016. Id. at 3 (citing Order Granting Def.'s Mot. to Compel at 7–10, ECF No. 65). Defendant appears to interpret the Magistrate's Order as authorizing discovery of any and all categories of employment records. See id. at 4–5. This Court declines to adopt such interpretation. At issue in that Order was whether Plaintiff should be compelled to sign a consent of release of employment records from Plaintiff's subsequent employers, which was the subject of Defendant's Request No. 36. Id. at 7 (citing ECF No. 56–2, at 10). The Magistrate Court overruled Plaintiff's objection to that request, id. at 9, and ordered Plaintiff to sign the release, id. at 16. It based that ruling on Defendant's argument that Plaintiff's employment records are relevant to the mitigation of damages issues, id. at 9, and Plaintiff's failure to carry its burden that Defendant's discovery request is improper, id. at 10. However, the Magistrate Court did not address the issue of what categories of employment records or information are relevant and therefore discoverable. This Court will address that issue infra in the context of the challenged subpoenas.

*5 Plaintiff contends that the discovery Defendant seeks has no legitimate purpose other than to harass Plaintiff and inform Plaintiff's employers that he has filed a suit against one of his prior employers. E.g., Pl.'s Mot. Re. Emp'r Subpoena at 8, ECF No. 72. The subpoenas, Plaintiff continues, are broad and the documents they seek are not relevant to any of the claims or defenses raised in this lawsuit. Id. Defendant disputes any improper motive, noting that Plaintiff “no longer works for those employers, having been fired by most of them.” Def.'s Resp. Re. Emp'r Subpoenas at 10. Defendant argues that the documents it seeks are relevant to Plaintiff's claim of disability and Defendant's defense of direct threat. Id. at 7–8.

The Employer Subpoenas request the following categories of documents from Plaintiff's prior and subsequent employers:

E.g., Pl.'s Mot. Re. Emp'r Subpoena, Attach, (subpoena to HGS LLC, a subsequent employer) at 6, ECF No. 72–1; Pl.'s Mot. Re. Emp'r Subpoena, Attach, (subpoena to Savers, Inc., a prior employer) at 6, ECF No. 75–1. The Court will address them in turn.

The Court finds that Defendant's requests for Plaintiff's “entire personnel files” are overly broad on their face, and therefore will grant Plaintiff's motions as to these requests to both the prior and subsequent employers. See e.g., Peña v. Burger King Corp., No. 2:12cv248, 2012 WL 12547064, at *2 (E.D. Va. Sept. 21, 2012) (finding, in an ADA case, subpoenas seeking “the complete employment file” from plaintiff's former employers overbroad, stating they “could be quashed on this basis alone without addressing relevance,” and quashing same); EEOC v. Renaissance III Org., No. 3–05–CV–1063–B, 2006 WL 832504, at *1 (N.D. Tex. Mar. 30, 2006) (quashing, in a Title VII case, subpoena for “wholesale production of confidential employment records”); Webber v. Mark One Elec. Co., No. 09–0607–CV–W–FJG, 2010 WL 2134323, at *1 (W.D. Mo. May 26, 2010) (sustaining, in a Title VII case, objections to defendant's subpoenas for “any and all records relating to [plaintiff],” finding they exceeded the scope of permissible discovery and noting the “subpoena appears to be a fishing expedition into plaintiff's work and personal history”).

Defendant argues[6] that the medical leave documents relate to Plaintiff's claim that “he was a person with a disability when he was hired by Defendant.” Def.'s Resp. Re. Emp'r Subpoenas at 7 (emphasis added); see also id. at 8 (“This is directly related to the question of whether Plaintiff actually had a disability prior to working for Defendant.” (emphasis added)). It contends that Plaintiff cannot prevail without first demonstrating “a record of injury or impairment.” Id. (citing Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 615 (5th Cir. 2001)). It is not clear from Plaintiff's First Amended Petition whether he alleges disability under “a record of such an impairment” theory,[7] or that he was a person with a disability when he was hired by Defendant. Nor does Defendant point to any evidence or filings that substantiate that Plaintiff indeed makes such allegations. Consequently, the Court finds that Defendant has failed to carry its burden and therefore will grant Plaintiff's motions as to these requests to both prior and subsequent employers. See Cuthbertson, 179 F.R.D. at 603–04 (quashing, in an employment discrimination case, defendant's subpoenas to plaintiff's former employer, finding that defendant failed to meet its burden to establish relevance of the proposed discovery, where relevance was not apparent).

*6 Nevertheless, in the future, to the extent Defendant wishes to subpoena the prior (not subsequent) employers for the medical leave documents, Defendant must seek leave of court and substantiate its rendition of Plaintiff's allegations mentioned above for the Court's consideration.

Defendant asserts[8] that the termination and resignation documents are relevant to its “direct threat” defense under 42 U.S.C. § 12113(b):[9] specifically, on the issue of whether any prior employers identified Plaintiff as a significant risk to the health or safety of others and fired him on that ground. Def.'s Resp. Re. Emp'r Subpoenas at 7–8 (citing 42 U.S.C. § 12113(b)).

The record, however, does not reveal that Defendant filed any answer wherein it asserts this defense, much less articulates the basis of the defense.[10] This is particularly important because in evaluating relevancy of discovery sought, the Court must look to the claims and defenses asserted in the pleadings. See Fed. R. Civ. P. 26 advisory committee's notes to 2000 amendment (“The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings.”).

The Court is of the opinion that Plaintiff's motions as to these requests should be granted as well. For purposes of the direct threat defense, the ADA requires employers to conduct an individualized assessment of the employee's “present ability to safely perform the essential functions of the job” “based on a reasonable medical judgment.” 29 C.F.R. § 1630.2(r). According to an exhibit attached to Plaintiff's First Amendment Petition, Defendant argued before the EEOC that Plaintiff “posed a direct threat to the safety of his co-workers,” and therefore, “terminated his employment, effective August 10, 2012.” First Am. Pet., Ex. F (EEOC Determination), at 1, ECF No. 6–1. Defendant also argued that it made the determination that Plaintiff posed a direct threat based on Plaintiff's physician's release form. Id., Ex. C (Letter from Defense Counsel to the EEOC (Oct. 29, 2012)), at 2. Consequently, the “records that Defendant[ ] now wish[es] to obtain were obviously unknown to Defendant [ ] at the time when [it] allege[s] Plaintiff posed a direct threat. Therefore, the records could not have motivated the employer's decision... and by extension, are not at issue in this litigation.” Cf. Butler v. La. Dep't of Pub. Safety & Corrs., No. 3:12–cv–00420–BAJ–RLB, 2013 WL 2407567, at *7 (M.D. La. May 29, 2013) (denying defendant's motion to compel) (brackets, internal quotation marks, and citation omitted); see also Sanders v. Dalcraft, LLC, No. 3–09–CV–0307–P, 2009 WL 1392602, at *2 (N.D. Tex. May 18, 2009) (quashing, in a Title VII case, defendant's subpoena for termination documents from plaintiff's former employers, stating “[w]ithout some evidence to suggest that plaintiff was disciplined by her former employers for conduct similar to the reasons proffered by defendant for her termination, defendant is not entitled to these confidential employment records in hopes of uncovering some evidence that may possibly be used against plaintiff at trial.”).

*7 Plaintiff does not object to the subpoenas' requests for his payroll records from his subsequent employers. Pl.'s Mot. Re. Emp'r Subpoenas at 8, ECF No. 72. He argues however that they would be duplicative, as he has already produced them. Id. at 8 & n.2. The Court will allow discovery of Plaintiff's payroll records from Plaintiff's subsequent employers. See, e.g., Turnley v. Banc of Am. Inv. Servs., Inc., No. 07CV10949–NG, 2008 WL 5412886, at *2 (D. Mass. Dec. 8, 2008) (“Typically, evidence of the compensation earned by Plaintiffs after they left Defendants' employ bears on their damages, and in particular, on the question of whether Plaintiffs mitigated their damages.”). However, the Court will disallow Defendant's requests for same from Plaintiff's prior employers, as Defendant has failed to explain how they bear on the mitigation issues.

The Attorney subpoenas request the following documents from Plaintiff's former counsel, Ruben Ortiz and Roger Davie, whom Plaintiff consulted after he was terminated from Defendant's employ:

E.g., Pl.'s Mot. Re. Att'y Subpoena, Attach. (subpoena) at 6, ECF No. 69–1. Plaintiff resists these requests on grounds of attorney-client privilege and/or work-product protection, and relevancy. E.g., Pl.'s Mot. Re. Att'y Subpoena at 4–6, ECF No. 69. Defendant responds that the documents are not privileged, Def.'s Resp. Re. Att'y Subpoenas at 4–5, ECF No. 71, and further that the documents are relevant to its statute of limitations defense, in particular, to the issue of when Plaintiff received the right to sue letter from the EEOC, id. at 3–4.

Plaintiff argues that Defendant fails to explain how speculative engagement documents are in any way related to when Plaintiff received the right to sue letter. Pl.'s Reply Re. Att'y Subpoenas at 2, ECF No. 87. Plaintiff points out that Defendant contradicts itself by requesting engagement documents, while simultaneously acknowledging that both attorneys declined to represent Plaintiff. Id.; cf. Def.'s Resp. Re. Att'y Subpoenas at 3 (“Plaintiff testified that both attorneys told Plaintiff they would not represent Plaintiff with respect to Plaintiff's claims against Defendant.”). The Court will grant Plaintiff's motions as to these requests.

Plaintiff argues that Defendant fails to explain how documents showing dates and times of communications with Plaintiff, even if they exist, are related to when Plaintiff received the right to sue letter. Pl.'s Reply Re. Att'y Subpoenas at 2. Citing to an excerpt from the deposition transcript of Plaintiff, Defendant states that Plaintiff testified that he visited with the attorneys “after the EEOC issued the right to sue letter.” Def.'s Resp. Re. Att'y Subpoenas at 3 (emphasis in original) (citing Ex. A (Tr. of Zamora Dep.) at 143:24–145:18 (Nov. 18, 2016), ECF No. 71–1)).

In his Reply, Plaintiff does not contest this statement or his testimony relied upon by Defendant therefor. Nor has Plaintiff contested Defendant's proposition that the documents are not privileged. Cf. Def.'s Resp. Re. Att'y Subpoenas at 4 (subpoenas do not request any communications exchanged between Plaintiff and the attorneys). See also In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001) (“A party asserting a[n attorney-client] privilege exemption from discovery bears the burden of demonstrating its applicability.”); Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985) (“The burden of establishing that a document is work product is on the party who asserts the claim”).

*8 The Court will deny Plaintiff's motion as to this request and thereby allow discovery of the requested documents. However, the Court will limit the scope of discovery to time period from August 19, 2014 (when the EEOC issued the right to sue letter) to November 21, 2014 (when Plaintiff brought this lawsuit in the state court).

The Court will grant Plaintiff's motions as to Defendant's requests for documents, emails, and/or communications sent/received by Plaintiff's former attorneys to/from the EEOC, because Defendant should be able to obtain them, if it has not already done so,[11] from the EEOC. See Fed. R. Civ. P. 26(b)(2)(C)(i) (“'On motion or on its own, the court must limit... discovery ... if it determines that... the discovery sought... can be obtained from some other source that is more convenient, less burdensome, or less expensive.”). The Court will also grant Plaintiff's motions as to Defendant's requests for documents, e-mails, and/or communications sent by the former attorneys to “any other third party,” as Defendant points to nothing that suggests that such communications took place. See Tolliver v. Fed. Republic of Nigeria, 265 F. Supp. 2d 873, 880 (W.D. Mich. 2003) (“The mere hope that additional discovery may give rise to winning evidence does not warrant the authorization of wide-ranging fishing expeditions.”).

Defendant moves to quash Plaintiff's notice to take the oral deposition of Denise Davis—an employee of Defendant—because Plaintiff failed to disclose Ms. Davis in his initial disclosures. Def.'s Mot. Re. Dep. Notice at 1, 3, ECF No. 84; id., Ex. A. Defendant also appears to fault Plaintiff for not amending his initial disclosures to add Ms. Davis, prior to issuing the notice. See Def.'s Mot. Re. Dep. Notice at 2.

It is unclear whether Plaintiff seeks to depose Ms. Davis solely for impeachment.[12] Moreover, the crux of the parties' dispute appears to be that they were unable to reach an agreement as to the timing of the deposition. Id. at 1. In any event, Plaintiff did not file a respond to Defendant's motion, and therefore, the Court will grant the motion as unopposed. See Local Rule CV–7(e)(2) (“If there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed.”). Plaintiff, however, may depose Ms. Davis at an agreed time, upon conferring with counsel for Defendant and complying with the Federal Rules of Civil Procedure and this District's Local Rules.

*9 For the foregoing reasons, the Court enters the following orders:

IT IS HEREBY ORDERED Plaintiff's Motions to Quash and for Protective Order (ECF Nos. 75, 76, 78)—i.e., the motions that challenge Defendant's subpoenas to Plaintiff's prior employers—are GRANTED. In the future, to the extent Defendant wishes to subpoena Plaintiff's prior employers for discovery of the medical leave documents, IT IS MOREOVER ORDERED that Defendant SHALL SEEK LEAVE OF COURT before issuing such subpoenas consistent with Section II.B.2, supra, of this Order.

IT IS FURTHER ORDERED that Plaintiff's Motions to Quash and for Protective Order (ECF Nos. 72–74, 77, 79–83)—i.e., the motions that challenge Defendant's subpoenas to Plaintiff's subsequent employers—are GRANTED IN PART AND DENIED IN PART. Specifically, they are DENIED as to Defendant's requests for payroll records, and GRANTED as to Defendant's all other requests for documents.

IT IS FURTHER ORDERED that Plaintiff's Motions to Quash and for Protective Order (ECF Nos. 69, 70)—i.e., the motions that challenge Defendant's subpoenas to Plaintiff's former attorneys—are GRANTED IN PART AND DENIED IN PART. Specifically, the motions are DENIED as to Defendant's requests for documents showing the dates and times of communications and meetings between the attorneys and Plaintiff. The scope of discovery for such documents SHALL BE LIMITED TO time period from August 19, 2014, to November 21, 2014. The motions are GRANTED as to Defendant's requests for documents.

IT IS FINALLY ORDERED that Defendant's Motion to Quash Plaintiff's Notice to Take the Oral Deposition of Denise Davis (ECF No. 84) is GRANTED. Plaintiff MAY depose Ms. Davis at an agreed time, upon conferring with counsel for Defendant and complying with the Federal Rules of Civil Procedure and this District's Local Rules.

THIS ORDER DOES NOT PROHIBIT THE NON–PARTIES to whom the subpoenas are directed (i.e., Plaintiff's former employers and attorneys) from seeking relief in a court against Defendant's subpoenas, even if they comply with this Order, on any permissible grounds other than relevancy.

So ORDERED and SIGNED this 17th day of February 2017.

One motion was filed in duplicate, each regarding a subpoena directed to Plaintiff's employer Dial America Marketing. Cf. Mot. to Quash & for Protective Order, ECF No. 79, with Mot. to Quash & for Protective Order, ECF No. 83.

See Def.'s Resp. Re. Emp'r Subpoenas at 5 (listing Savers, Inc., 7–Eleven Inc., and West Telemarketing Outbound Corp.), ECF No. 90; see also id. at 5 n.11 (“It is unclear whether West Telemarketing and West Telemarketing Outbound Corp. are two different employers. As a precaution, Defendant has included West Telemarketing Outbound Corp. as a pre–August 10, 2012, employer.”)

See id. at 3–4 (listing HGS LLC, Red Cats USA, The Wendy's Corp., Outbound, West Telemarketing, Dial America Marketing, Atlantis Health Services, Dollar Tree Distribution Inc., and HGS Inc.).

The Attorney Subpoenas seek production of documents that Plaintiff believes are protected under the attorney-client privilege and/or work-product protection. Consequently, Plaintiff, as holder of the privileges, see Havel v. Dentsu McGarry Bowen UK Ltd., No. H–13–1291, 2015 WL 409837, at *1 (S.D. Tex. Jan. 29, 2015) (“Under ... federal common law ... , the client, not the client's attorney,... holds the [attorney-client] privilege.”); In re Grand Jury Subpoenas, 561 F.3d 408, 411 (5th Cir. 2009) (“Work product protections ... are held by the attorney as well as the client.”), has standing to challenge the subpoenas. See, e.g., Hunter v. Copeland, No. 03–2584, 2004 WL 1161368, at *1 n.1 (E.D. La. May 24, 2004) (“[Party] has standing to bring this motion [to challenge subpoenas to his counsel] as production of certain documents will affect [him] as ... client.”).

See also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2035 (3d ed.) (“A party may ... seek a[ ] [Rule 26(c) protective] order if it believes its own interest is jeopardized by discovery sought from a third person.”); id. § 2459 (Under Rule 45(d)(3), “[o]rdinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.”).

Defendant does not specifically address each category of documents that the subpoenas seek. Read in context, this argument appears most pertinent to the medical leave documents.

See 42 U.S.C. § 12102(2) (defining “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment”).

As noted, Defendant does not specifically address each category of documents that the subpoenas seek. Read in context, this argument appears most pertinent to the termination and resignation documents.

See Robertson v. Neuromedical Ctr., 161 F.3d 292, 296 (5th Cir. 1998) (“The ADA does not require an employer to accommodate an individual if the employee would pose a direct threat to the health and safety of others.” (citing among others, 42 U.S.C. § 12113(b))).

While the case was pending before the state court, Defendant filed an Original Answer to Plaintiff's Original Petition, wherein Defendant generally denied plaintiff's allegations without asserting any defense, affirmative or otherwise. Notice of Removal, Ex. B at 1, ECF No. 1. Thereafter, Plaintiff filed its First Amended Petition, id., Ex. E, and Defendant removed the case to this Court. To date, however, Defendant has not filed any answer to the First Amended Petition.

In a prior motion, Defendant attached as an exhibit Davie's Freedom of Information Act (“FOIA”) request to the EEOC before the agency issued the right to sue letter. Def.'s Mot. for Leave to File Suppl. Evidence, Ex. D (EEOC letter to Davie denying his FOIA request (April 7, 2014), ECF No. 28.

See Fed. R. Civ. P. 26(1)(A)(1) (A “party must, without awaiting a discovery request, provide to the other parties,... the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” (emphasis added)).