*1 This matter is before the court on the plaintiff's motion to issue subpoenas pursuant to Federal Rule of Civil Procedure 45 (docs. 24 at 3, 5-6; 29). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

The plaintiff, proceeding pro se, filed a complaint against the defendant on December 11, 2020, alleging national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), disability discrimination under the Americans with Disabilities Act (“ADA”), and retaliation under Title VII (doc. 1 at 3-6). The plaintiff also attached a statement to his complaint, in which he alleges that the defendant was negligent in failing to provide a non-toxic and non-discriminatory company culture, as well as in failing to follow Occupational Safety and Health Administration standards (doc. 1-1 at 1). The defendant filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on April 6, 2021 (doc. 16). The plaintiff filed a response on May 12, 2021 (doc. 24). The undersigned issued a report and recommendation on the defendant's motion on June 17, 2021 (doc. 31).

In his response to the defendant's partial motion to dismiss, the plaintiff requested that the court issue (1) a subpoena requiring the Equal Employment Opportunity Commission (“EEOC”) to make available all information regarding this matter, including all phone calls, conversations, and records regarding the plaintiff, and (2) a subpoena requiring the defendant to make available all of the plaintiff's employee records, including access to the cell phone he used while in his last position with the defendant and the interview and/or contact information of all persons named in his complaint (doc. 24 at 3, 5-6). On June 16, 2021, the undersigned issued a text order construing these requests as a motion to issue subpoenas pursuant to Federal Rule of Civil Procedure 45 and directing the defendant to file a response (doc. 29). The defendant filed a response on June 30, 2021 (doc. 36).

Subpoena Regarding EEOC Records

As set out above, the plaintiff requests that the court issue a subpoena requiring the EEOC to make available all information regarding this matter, including phone calls, conversations, and records regarding the plaintiff (doc. 24 at 3). The defendant argues that the plaintiff does not need the court to issue a subpoena to obtain these EEOC records, as the plaintiff may obtain them through other means (doc. 36 at 2-3).

The EEOC's website sets forth how to obtain charge files through the Freedom of Information Act (“FOIA”) or Section 83 Disclosure of Information in Charge Files. See Freedom of Information Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/foia (last visited July 1, 2021); Section 83 Disclosure of Information in Charge Files, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/foia/section-83-disclosure-information-charge-files (last visited July 1, 2021). Because these other avenues are available, the plaintiff's motion for the court to issue a subpoena to the EEOC for the documents at issue is denied at this time. However, if the plaintiff is unable to obtain the documents related to this matter from the EEOC through these avenues, the plaintiff may renew his motion.

Subpoena Regarding the Defendant's Records

*2 The plaintiff also requests that the court issue a subpoena requiring the defendant to make available all of his employee records, including access to the cell phone he used while in his last position with the defendant and the interview and/or contact information of all persons named in his complaint (doc. 24 at 5-6). The defendant argues that this request is improper, as the documents should be sought through a discovery request pursuant to Federal Rule of Civil Procedure 34 (doc. 36 at 3-6). The undersigned agrees.

Under Federal Rule of Civil Procedure 45, “a party to litigation may serve a subpoena for the production of discoverable material on a non-party to the litigation.” In re Am. Nurses Ass'n, 643 F. App'x 310, 314 (4th Cir. 2016) (emphasis added); see Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection”). However, Rule 34 governs the “production of documents in the possession of a party[.]” Guilford Nat'l Bank of Greensboro v. S. Ry Co., 297 F.2d 921, 924 (4th Cir. 1962); see Richardson v. Sexual Assault/Spouse Abuse Rsch. Ctr., Inc., 270 F.R.D. 223, 225 (D. Md. 2010). Consequently, the plaintiff's request for the court to issue a subpoena pursuant to Rule 45 for the defendant to produce or make available certain documents is improper.

The defendant also argues that the plaintiff's request is premature (doc. 36 at 3-6). “A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d)(1). As the defendant's partial motion to dismiss remains pending before the district court, a conference and scheduling order has not yet been issued by the court. The conference and scheduling order will set the Rule 26(f) report deadline and will state that discovery may begin. The undersigned finds no compelling reason to grant a premature discovery request while the defendant's partial motion to dismiss is pending. Should the plaintiff wish to obtain the documents at issue from the defendant, he must make a request pursuant to Rule 34 once discovery in this case commences.

Wherefore, based upon the foregoing, the plaintiff's motion to issue subpoenas (doc. 24) is denied.

IT IS SO ORDERED.