Allen v. Greystar Mgmt. Servs., LP
Allen v. Greystar Mgmt. Servs., LP
2009 WL 10669156 (W.D. Tex. 2009)
August 27, 2009
Primomo, John W., United States Magistrate Judge
Summary
The court denied plaintiff's motion to quash and for protective order. With respect to ESI, Greystar sought records such as computer databases, back-up files, deleted e-mail and voicemail messages, which were found to be relevant to the case and could lead to the discovery of admissible evidence.
Erika ALLEN, Plaintiff,
v.
GREYSTAR MANAGEMENT SERVS., L.P., Defendant
v.
GREYSTAR MANAGEMENT SERVS., L.P., Defendant
Civ. No. SA–09–CA–00122–XR
United States District Court, W.D. Texas, San Antonio Division
Signed August 27, 2009
Counsel
Christopher J. McKinney, The McKinney Law Firm, PC, San Antonio, TX, for Plaintiff.John L. Ross, Thompson Coe Cousins & Irons, Dallas, TX, Derrick Glenn Parker, D.G. Parker Law Firm, PLLC, Houston, TX, for Defendant.
Primomo, John W., United States Magistrate Judge
ORDER
*1 Before the Court is plaintiff, Erika Allen's motion to quash and for protective order. (Docket no. 12). Defendant, Greystar Management Services, L.P. (“Greystar”), has responded. (Docket no. 13). Upon consideration of the motion, response and applicable law, the Court believes the motion should be DENIED.
BACKGROUND FACTS
Plaintiff, Erika Allen, was hired by defendant, Greystar, in June of 2004, and worked at several of Greystar's properties in Bexar County, Texas until April 11, 2008, when she was terminated. Docket no. 4, Plaintiff's Original Petition, pg. 2. Plaintiff alleges that one month prior to her discharge, she informed her supervisor that she was pregnant, and subsequently, received several written counseling forms, after which she was terminated. Id.Plaintiff alleged that as a result of this wrongful termination, she suffered and will suffer past, present and future mental anguish. Id. at 3. Plaintiff initially filed suit in state court, however, defendant timely filed a notice of removal based on diversity jurisdiction. Docket no. 1. Defendant then sought to subpoena records from plaintiff's current employer, primary physicians, and the hospital where she gave birth. In response, plaintiff filed this motion, seeking to quash the subpoenas in their entirety and obtain a protective order.
STANDARD OF REVIEW
“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense....” FED.R.CIV.P. 26(b)(1). “Courts construe discovery rules liberally to serve the purposes of discovery: providing the parties with information essential to the proper litigation of all relevant facts, eliminating surprise, and promoting settlement.” Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 132 (E.D. Tex. 2003). Upon motion, a court shall issue a protective order with regard to a request for relevant discovery only upon the movant's showing of “good cause” and which “justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”. FED.R.CIV.P. 26(c); United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978). A showing of “good cause” requires only that a sound basis or legitimate need to take judicial action exists. Landry v. Airline Pilots Ass'n Int'l, AFL–CIO, 901 F.2d 404, 435–436 (5th Cir. 1990).
“Protective orders prohibiting depositions are rarely granted.” Bucher v. Richardson Hosp. Auth., 160 F.R.D. 88, 92 (N.D. Tex. 1994); Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979). Thus, a party seeking to quash a deposition in its entirety must satisfy the heavy burden of demonstrating good cause, and, in the Fifth Circuit, must establish “extraordinary circumstances” to warrant such an action. Salter, 593 F.2d at 651. To satisfy this heavy burden, the movant must show a particular and compelling need for such a protective order. Bucher, 160 F.R.D. at 92. Conclusory assertions of injury are insufficient. Medlin v. Andrew, 113 F.R.D. 650, 653 (M.D.N.C. 1987); CBS, Inc. v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984). This requirement “furthers the goal that courts only grant as narrow a protective order as is necessary under the facts.” Bucher, 160 F.R.D. at 92 quoting Frideres v. Schiltz, 150 F.R.D. 153, 156 (S.D. Iowa 1993).
DISCUSSION
*2 On June 6, 2009, defendant sought to subpoena the following records from plaintiff's personal physicians:
the entire medical record file, radiology reports, pathology reports, litigation files, insurance records, opinions and reports, records, from any other doctors, office notes, progress notes, patient information sheets and questionnaires, correspondence, consultations, hospital records, physical therapy records, skilled nurses' notes, emergency room records, telephone messages, computer databases, back-up files, deleted e-mail and voice mail messages pertaining to the examination and/or treatment of ERIKA SWENSON ALLEN (Date of Birth: 8/28/1981; Social Security No.: XXXXXXX) from 2006 to present.
Docket no. 12, Notices of Intention to Take Deposition by Written Questions, Exh. A. Additionally, defendant sought to subpoena the following records from the hospital where plaintiff gave birth:
in-patient and/or out-patient records, admission sheets, short stay forms, history and physical, signed authorizations, discharge summary, consultations, chief complaints, physicians orders, nurses' notes, medication notes, progress notes, observation notes, operative reports, procedure notes, lab reports, X-ray reports, EKG and/or EEG reports, diagnostic imaging reports, emergency room records, analysis, pathology reports, insurance records, physical therapy records, skilled nurses' notes, rehabilitation records, narrative notes, social worker notes, face sheets, dictations, phone orders, prescription records pertaining to the examination and/or treatment of ERIKA SWENSON ALLEN (Date of Birth: 8/28/1981; Social Security No.: XXXXXXX) from 2006 to present.
Id.
Further, defendant sought to subpoena the following records from plaintiff's current employer:
the entire personnel and payroll record file, independent contractual work performed, employment applications, resumes, reference checks, employment agreements, non-compete and non-solicitation agreements, attendance records, promotion/ demotion records, evaluations, commendations, reprimands, wage and salary records, W–2's, W–4's, 1099's, sick leave, vacation leave, employee benefit programs, workers' compensation records, health or physical examinations, employee health records, notes, correspondence, memoranda, archived and stored documents, electronic data record-keeping, computer databases, back-up files, deleted e-mail and voicemail messages, and tangible documents pertaining to the employment of ERIKA SWENSON ALLEN (Date of Birth: 8/28/1981; Social Security No.: XXXXXXX) from 8/28/81.
Id.
Plaintiff filed a motion to quash, arguing that the subpoenas are overly broad, unduly burdensome, require disclosure of proprietary and privileged documents with no applicable waiver, and are not likely to lead to the discovery of admissible evidence. Additionally, plaintiff seeks protection from the annoyance, embarrassment, and oppression that production of the requested documents would cause.
With respect to the medical records sought, defendant argues that these records are relevant to defend against plaintiff's pleadings which allege that plaintiff has suffered and will suffer past, present and future mental anguish for which plaintiff seeks to recover at trial. Citing Burrell v. Crown Cent. Petroleum, Inc., plaintiff contends that she need not present medical records or medical testimony to recover mental anguish damages. Id., 177 F.R.D. 376, 384 (E.D.Tex. 1977)(providing that in a Title VII case, the physical or mental condition of a plaintiff is not at issue merely because plaintiff seeks damages for mental anguish). However, plaintiff filed suit pursuant to Chapter 21 of the Texas Labor Code and therefore, Texas substantive law governs the recovery of damages for mental anguish. U.S. Aviation Underwriters v. Olympia Wings, Inc., 896 F.2d 949, 953 (5th Cir. 1990)(federal court exercising diversity jurisdiction bound to follow the substantive law of Texas).
*3 Pursuant to Texas law, a plaintiff seeking to recover damages for mental anguish must introduce “direct evidence of the nature, duration, and severity” of her mental anguish, thereby establishing “a substantial disruption” in her daily routine or alternatively, “evidence of ‘a high degree of mental pain and distress' that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ ” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995)(quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex. App.—Houston [1st Dist.] 1990, no writ)). In light of plaintiff's allegations and her burden, it appears that plaintiff's medical records are reasonably calculated to lead to the discovery of admissible evidence. FED.R.CIV.P. 26(b)(1). Further, although plaintiff argues these records contain proprietary and privileged information, she does not specify what records she believes are proprietary and privileged, but merely advances conclusory assertions of injury that are insufficient for demonstrating good cause to quash a subpoena in its entirety. Medlin, 113 F.R.D. at 653; Ahern, 102 F.R.D. at 822.
Defendant further contends that records relating to plaintiff's delivery are relevant to the issue of compensatory damages for medical expenses incurred by plaintiff which were not covered by Greystar's insurance program following plaintiff's discharge. Pursuant to Texas law, “recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.0105 (Vernon 2008). Thus, the hospital's billing records would be relevant to establish damages. Further, defendant argues that plaintiff's delivery records are also relevant to ascertain the proper calculation of back pay. Walston v. School Bd. Of City of Suffolk, 566 F.2d 1201, 1205–06 (4th Cir. 1977) (plaintiff not entitled to back pay for time during which she was unable to teach because of her pregnancy). Here, plaintiff is seeking compensatory damages; therefore, factors such as whether the delivery was simple and uncomplicated or whether a Caesarian section was required might arguably be relevant to determine plaintiff's recovery period and in turn, whether any time taken from work was voluntary or involuntary. Id.
Further, the Court notes that although plaintiff filed a motion to quash the subpoenas in their entirety, plaintiff offered the following by way of compromise:
With regard to the documents sought from Plaintiff's past medical providers, Plaintiff offered to obtain said records directly and produce any documents that are relevant to her claim for mental anguish. Additionally, Plaintiff offered to tender medical records from any of the providers subpoenaed to the court for in camera inspection if Defendant felt that all relevant documents were not properly produced.
Plaintiff asserts that defendant did not respond to this offer of compromise; however, although plaintiff apparently made two attempts to fax the letter to defendant's counsel and then sent an email, the attachment could not be opened. As a result, defendant never saw the offer of compromise until after the present motion was filed. Clearly, this does not amount to a good faith effort to confer in an effort to resolve the dispute without court action. FED.R.CIV.P. 26(c)(requiring a party seeking a protective order to confer in good faith before seeking court intervention).
Moreover, in plaintiff's response to Defendant's First Requests for Production and First Set of Interrogatories, dated April 27, 2009, plaintiff agreed to produce medical records relating to plaintiff's claims for mental anguish in her possession, custody or control. See Cochran Consulting, Inc. V. Uwatec USA, Inc., 102 F.3d 1224, 1229–30 (Fed. Cir. 1996)(defining “control” as “the legal right, authority, or ability to obtain documents on demand”). Further, in response to requests for production of plaintiff's medical records relating to her claim for “damages for mental anguish or for other mental or physical injury,” plaintiff agreed to provide “any responsive document” in plaintiff's possession. Docket no. 13, Exh. 2, Request for Production No. 7. Likewise, in response to a request for production of “medical records and bills in connection with [plaintiff's] pregnancy or childbirth” plaintiff agreed to make responsive documents available if she, in fact, seeks damages/recovery for medical expenses for such medical care. Id., Request for Production No. 31.
*4 Clearly, plaintiff's medical records are relevant to plaintiff's claim for past, present, and future mental anguish damages. Saenz v. Fid. & Guar. Ins. Co., 925 S.W.2d 607, 614 (Tex. 1996). Moreover, to the extent, plaintiff previously agreed to produce documents responsive to these requests, plaintiff has waived her objections. Further, to the extent plaintiff is seeking compensatory damages for past, present and future economic loss, evidence pertaining to plaintiff's pregnancy and delivery appears reasonably calculated to lead to the discovery of admissible evidence and is, therefore, relevant. FED.R.CIV.P. 26(b)(1).
Finally, defendant argues that plaintiff's present employment records are relevant for the following reasons: pay records are relevant to the proper calculation of back and front pay; disciplinary and performance records are relevant to mitigate damages and negate plaintiff's attempt to prove defendant's reasons for termination were pretextual; and evidence of other compensation, not reported or reflected in payroll records, such as free use of an apartment, utility payments, etc., may be relevant as an offset against front or back pay liability. With regard to those documents subpoenaed from her current employer, plaintiff previously offered to agree to a subpoena being issued if it were limited to documents that are directly related to the issue of mitigation, such as plaintiff's salary, benefits, and other earnings. However, in addition to documents pertaining to plaintiff's earnings and compensation, defendant also seeks documents pertaining to performance appraisals and disciplinary action. Defendant maintains this information is relevant to its defense that plaintiff was terminated for cause and not as a pretext for discrimination. Here, plaintiff is seeking exemplary damages due to the “willful and malicious nature of the wrongs committed.” In light of defendant's defense that plaintiff was terminated for cause, information pertaining to plaintiff's present work performance appears reasonably calculated to lead to the discovery of admissible evidence and is, therefore, relevant. FED.R.CIV.P. 26(b)(1)(“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense...”).
Here, plaintiff, who initiated this suit and seeks damages for mental anguish and economic loss resulting from her termination, which she attributes solely to her pregnancy, has failed to meet her burden of showing good cause for quashing the depositions by written questions in their entirety. Bucher, 160 F.R.D. at 92; Salter, 593 F.2d at 651. Accordingly, plaintiff's motion to quash and for protective order is DENIED.
It is so ORDERED.