EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff and Estela Black, Intervening Plaintiff, v. HP PELZER AUTOMOTIVE SYSTEMS, INC., Defendant No. 1:17-cv-00031-TAV-CHS United States District Court, E.D. Tennessee, at Chattanooga Filed May 17, 2019 Counsel Faye A. Williams, Gerald L. Thornton, Roslyn Nichole Griffin, Timothy M. Bowne, United States of America-EEOC-Memphis Equal Employment Opportunity Commission, Memphis, TN, Mark H. Chen, Equal Employment Opportunity Commission, Nashville, TN, for Plaintiff. Robert M. Vercruysse, Pro Hac Vice, Clark Hill, PLC, Detroit, MI, Anne-Marie Vercruysse Welch, Pro Hac Vice, Clark Hill PLC, Birmingham, MI, for Defendant. Teger, Christopher H., United States Magistrate Judge ORDER *1 Before the Court is Plaintiff EEOC's Motion to Compel Compliance with Subpoena Duces Tecum Issued to Nonparty Hollis Peguese [Doc. 79]. Counsel for the parties participated in a telephonic hearing on this motion on Thursday, May 10, 2018. For reasons that follow, Plaintiff's motion to compel [Doc. 79] is DENIED. I. Background. Plaintiff has sued Defendant HP Pelzer Automotive Systems, Inc., alleging that Defendant terminated Intervening Plaintiff Estela Black's employment in retaliation for making a complaint of sexual harassment. Specifically, Ms. Black alleges that, during new-employee orientation, Defendant's human-resources representative made a statement to her that amounted to sexual harassment. This statement was allegedly made in the presence of another employee, Sarah Kennedy, who was also attending new-employee orientation. Ms. Black alleges that she made a complaint to Defendant's plant manager about the alleged sexual harassment. According to Defendant, following receipt of Ms. Black's complaint, it performed an investigation that included an interview of the alleged witness, Sarah Kennedy. Defendant asserts that Ms. Kennedy denied that the human-resources representative made the statement attributed to him by Ms. Black. Subsequently, Defendant terminated Ms. Black's employment. Plaintiff asserts she was terminated in retaliation for making a complaint about the alleged sexual harassment. Defendant contends that its decision to terminate Plaintiff's employment was based on its finding, following a thorough and careful investigation, that Plaintiff made a false claim. At some point, Sarah Kennedy left the employment of Defendant HP Pelzer Automotive, Inc. and went to work for Platinum Recruiting, LLC (“Platinum Recruiting”), a company owned by Mr. Hollis Peguese. Plaintiff EEOC seeks to discredit Sarah Kennedy's statement that Defendant's human-resources representative did not make the alleged sexually-harassing comment to Ms. Black. To that end, Plaintiff EEOC is attempting to demonstrate that Platinum Recruiting benefits financially from doing business with Defendant HP Pelzer Automotive, Inc.; that Sarah Kennedy herself benefits financially from this arrangement; and that Sarah Kennedy has given false testimony because she wants to preserve the relationship between Defendant and Platinum Recruiting. Plaintiff EEOC served a Subpoena to Testify at a Deposition in a Civil Action on Platinum Recruiting's owner, Hollis Peguese. The subpoena also requires Mr. Peguese to produce at the deposition the following documents or electronic information: 1. All personnel documents within your control pertaining to Sarah Elizabeth Knox Holloway a/k/a Sarah Knox or Sarah Kennedy [DOB xx/x/83], to include any and all documents reflecting: a. Date(s) of hire and reason for separation. b. Job title and duties; c. Contacts made to HP Pelzer Automotive Systems, Inc. and commissions, if any. d. Provide the number of sales and recruitments Ms. Knox made to HP Pelzer, Inc. *2 e. Provide the names of all Points of Contacts at HP Pelzer that Ms. Knox met with or contacted. 2. All documents reflecting communications between Platinum Recruiting and HP Pelzer Automotive Systems, Inc. from Sarah Knox's date of hire to separation. 3. All documents or contracts reflecting any and all sales and employee placement at HP Pelzer Automotive Systems, Inc. by Sarah Knox from her date of hire to separation, including amounts of compensation from sales. 4. List the names(s) of HP Pelzer Automotive Systems manager or employees that executed/signed these documents. 5. Provide all of the documents executed or signed by HP Pelzer Automotive Systems managers or employees. 6. List the name(s) of the primary contacts at HP Pelzer Automotive Systems that Ms. Sarah Knox met with regarding sales and recruitment. 7. All documents reflecting persons whom Platinum Recruiting contacted at HP Pelzer Automotive systems, Inc. in Athens, Tennessee from January 1, 2014 to December 31, 2014. Plaintiff EEOC served this subpoena on Hollis Peguese at Platinum Recruiting on April 19, 2018. The subpoena provided for Mr. Peguese to be deposed on April 25, 2018. In his Declaration dated April 30, 2018 [Doc. 81], in support of Plaintiff's motion to compel [Doc. 79], Plaintiff counsel, Mark Chen, states: On April 25, 2018, Hollis Peguese appeared for his deposition without the requested documents in the Commission's subpoena duces tecum. Mr. Peguese failed to notify the Commission's attorneys that he would not produce the documents prior to his deposition. To date, Mr. Peguese continues to avoid the Commission's attorneys['] calls and request for production of these documents. As a result of Mr. Peguese's failure to produce the requested documents prior to, during, or after the deposition, Plaintiff moved the Court to compel the production of the documents identified in the subpoena. II. Discussion 1. Possession, Custody, or Control As an initial matter, Rule 45(a)(1)(A)(iii) can command a person to “produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control....” At his deposition, Mr. Peguese testified that, in effect, he did not have possession, custody, or control over the documents that the EEOC sought. [Doc. 84-2, Peguese dep. at 17-24]. However, as indicated, in his declaration dated April 30, 2018 [Doc. 81], Plaintiff's counsel stated simply: On April 25, 2018, Hollis Peguese appeared for his deposition without the requested documents in the Commission's subpoena duces tecum. Mr. Peguese failed to notify the Commission's attorneys that he would not produce the documents prior to his deposition. To date, Mr. Peguese continues to avoid the Commission's attorneys' calls and request for production of these documents. The undersigned is concerned with the argument and declaration proffered by Plaintiff's counsel in support of the motion to compel. What Plaintiff's counsel failed to mention in his motion or his declaration is that Mr. Peguese testified at deposition to the following: • Platinum Recruiting's personnel records are electronic; *3 • The personnel records from 2014 and 2015 are no longer available to him; • These records were stored by Black Cat Solutions, a company owned by a college classmate, in a cloud-based system called CATS. • Platinum Recruiting canceled its subscription to CATS when it moved to another software called Temp Works in 2015. • The data from CATS was not transferred to Temp Works because it was too expensive. • Mr. Peguese no longer had access to the records and, therefore, could not produce the records requested by Plaintiff's counsel. • Mr. Peguese provided Plaintiff's counsel with the contact information for the person who had access to the CATS system. [Doc. 84-2, Peguese dep. at 17-24]. Granted, Plaintiff's counsel may not have accepted or even believed the explanation offered by Mr. Peguese under oath for failing to produce the subpoenaed documents. Regardless, given the fact that Plaintiff's counsel is requesting the Court to compel a non-party, Mr. Peguese, to undertake the burden and expense of producing a large quantity of documents or electronically-stored information, the Court would expect that Plaintiff's counsel, as an officer of the Court, would provide Mr. Peguese's explanation for why he was not in a position to do so. The Court was entitled to that explanation in attempting to make an informed decision on the present motion, particularly since Plaintiff's counsel was armed with Mr. Peguese's explanation when he prepared his declaration. It should not have fallen solely on the Defendant to explain Mr. Peguese's reasons for not producing the requested document. That said, Platinum Recruiting cannot produce data which is not in its possession, custody, or control; therefore, on this basis alone, the motion to compel can be DENIED.[1] 2. The Requests are Overly Broad and Unduly Burdensome When examining the appropriateness of discovery requests, the Court is guided by the following relevant instruction in Rule 26(b)(1) concerning the scope of discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The discovery sought from Mr. Peguese does not meet the test established by Rule 26(b)(1). It is worth reiterating that Mr. Peguese is not a party to this litigation, and to the Court's knowledge, Plaintiff EEOC has made no offer to reimburse him for the expense of producing the voluminous documents demanded in the subpoena. *4 Keeping in mind that Plaintiff's goal was simply to establish that Sarah Kennedy, an hourly employee of Platinum Recruiting, may have altered her statement because she stood to benefit financially if Platinum Recruiting enjoyed a good business relationship with Defendant HP Pelzer Automotive, Inc., Plaintiff's request for documents from Mr. Peguese extend well beyond what is necessary to make that point. The first item in Plaintiff's document request would have been sufficient for Plaintiff to explore Sarah Kennedy's possible bias (i.e., “[A]ll personnel documents within your control pertaining to ... Sarah Kennedy ... to include any and all documents reflecting ... (a) Date(s) of hire and reason for separation; (b) Job title and duties; (c) Contacts made to HP Pelzer Automotive Systems, Inc. and commissions, if any; (d) Provide the number of sales and recruitments Ms. Knox made to HP Pelzer, Inc.; (e) Provide the names of all Points of Contacts at HP Pelzer that Ms. Knox met with or contacted.”) Plaintiff, however, goes well beyond the inquiry concerning Sarah Kennedy's potential financial stake in the relationship between Platinum Recruiting and Defendant by requesting such items as “[A]ll documents reflecting communications between Platinum Recruiting and HP Pelzer Automotive Systems, Inc. from Sarah Knox's date of hire to separation”; “[P]rovide all of the documents executed or signed by HP Pelzer Automotive Systems managers or employees”; and “[A]ll documents reflecting persons whom Platinum Recruiting contacted at HP Pelzer Automotive systems, Inc. in Athens, Tennessee from January 1, 2014 to December 31, 2014.” These requests are clearly overbroad given the needs of this case, the likelihood that the broad scope of data sought will produce information relevant to this case, as well as the burden and expense to the innocent third party holding the records. It bears noting that the Court has previously cautioned the parties about this issue in a connection with a previous discovery dispute. In its order dated February 20, 2018 [Doc. 57], the undersigned struck the parties' competing Rule 30(b)(6) deposition notices, explaining as follows: In reviewing the Rule 30(b)(6) deposition notices in this case, the Court concludes that much of the information being sought is not relevant to any party's claim or defense, and further, that even the arguably-relevant information is, for the most part, not proportional to the needs of the case. If the parties continue down this road, the burden and expense of the proposed discovery will far outweigh its likely benefit in shedding light on the issues in this case. This is particularly true given the fact that the parties have already exchanged extensive written discovery and have taken eleven fact depositions in this single plaintiff retaliation claim. Because the parties made so little effort to tailor their Rule 30(b)(6) deposition notices to the actual needs of this case, the Court is unwilling to flyspeck their notices and trim them down to a point of compliance with the guidance provided by Rule 26(b)(1). Instead, the Court instructed the parties that Rule 30(b)(6) deposition notices would be quashed in their entirety and the motions for protective order would be dismissed as moot. The Court encouraged the parties to narrowly tailor their discovery through interrogatories, request to produce, requests for admission and fact depositions so that the cost of discovery bears some relation to the issues at stake. [See Doc. 57, page 3]. The overbreadth and burden of the requests is another, independent basis to deny the motion to compel. III. Conclusion For the set-forth reasons, Plaintiff's Motion to Compel Compliance with Subpoena Duces Tecum Issued to Nonparty Hollis Peguese [Doc. 79] is DENIED. Footnotes [1] In his deposition, which the EEOC took five days before the discovery period expired, Mr. Peguese gave the name and phone number of the owner of Black Cat Solutions which has the records at issue. [Id. at 35-36]. Had the EEOC not waited until the discovery period was nearly expired to depose Mr. Peguese, it could have subpoenaed relevant documents for discovery purposes from Black Cat Solutions. However, the discovery period has closed.