*1 This matter is before the court on Plaintiff's Motion for Protective Order on Defendants' Efforts to Serve a Subpoena on Southern Orthopedic Surgeons (Doc. No. 205) and the response in opposition thereto filed by Defendants Koch Foods, Inc. and Koch Foods of Alabama (collectively “Koch Foods”) (Doc. No. 213). The court heard oral argument by telephone on this motion on April 23, 2020. The motion is now ripe for review. Upon careful consideration of the parties' arguments and applicable law, the court finds that the motion for protective order is due to be granted in part and denied in part.

Plaintiff Ka'toria Gray filed this lawsuit against Defendant David Birchfield, Defendant Melissa McDickinson and Plaintiff's former employer, Defendants Koch Foods, in September 2017. In her Third Amended Complaint, Plaintiff alleges claims of sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”), retaliation under Title VII and 42 U.S.C. § 1981 for claims of race discrimination, retaliation under Title VII for engaging in protected activity, invasion of privacy, assault and battery, outrage, and negligent/wanton supervision, training and retention. (Doc. No. 5.) These claims stem from Plaintiff's employment with Defendants Koch Foods from January 24, 2011 until her resignation on April 22, 2016. Plaintiff seeks backpay, compensatory damages, punitive damages, nominal damages, injunctive relief, reasonable attorney's fees and costs.

Defendants Koch Foods have repeatedly sought an independent psychological examination of Plaintiff pursuant to Federal Rule of Civil Procedure 35 based on Plaintiff's state law claim of outrage. (Docs. No. 155, 172.) The court has consistently denied their motions. (Docs. No. 159, 187, 214.) On February 11, 2020, in denying a renewed motion for mental examination, the court found, inter alia, that Defendants Koch Foods “did not pursue all avenues of obtaining the information they are seeking via an expert mental examination.” (Doc. No. 187 at 7.)

On February 25, 2020, Defendants Koch Foods provided notice to Plaintiff of their intent to serve a non-party subpoena duces tecum on Southern Orthopedic Surgeons (“SOS”) requesting the following information:

*2 (Doc. No. 205-3.) Plaintiff objected to the issuance of the subpoena arguing that the subpoena was overly broad, sought irrelevant information, sought to invade her privacy and sought information not proportional to this action. (Doc. No. 205-1 at 3.) Plaintiff complained that the subpoena “seeks everything relating to [her] medical treatment by an orthopedist for an unlimited time frame” and asserted “she is not claiming any damages that would be reflected in these records.” (Id.) In an attempt to compromise, Defendants Koch Foods agreed to reduce the years covered in the subpoena from January 24, 2011 to the present (nine years) to November 2014 to the present (five years) but argued that the “medical records are pertinent to her claim of mental anguish” and “claim of constructive discharge as she was seeking [Family and Medical Leave Act] certification from Southern Orthopedic around the time of her resignation.” (Doc. No. 205-1 at 2.) No agreement was reached between the parties.

On March 9, 2020, after expiration of the discovery deadline,[1] Plaintiff filed a motion for protective order, pursuant to Federal Rule of Civil Procedure 26(c), arguing that the information sought by Defendants Koch Foods in the SOS subpoena is not relevant or proportional to her sexual harassment and retaliation claims. (Doc. No. 205 at ¶ 3.) Plaintiff contends that Defendants Koch Foods seek to unreasonably and unnecessarily invade her medical privacy. (Id.) Plaintiff also contends that nothing suggests that her “orthopedic health records are probative on the issue of her emotional injuries resulting from the discriminatory and harassing behavior she experienced.” (Id. at ¶ 3(e).) Plaintiff argues that Defendants Koch Foods delayed in seeking the information “until the eve of the close of discovery despite having ample opportunity to obtain the information during the discovery period.” (Id. at ¶ 4.) Plaintiff urges the court to enter a protective order restraining Defendants Koch Foods from issuing its proposed subpoena to SOS seeking her medical and billing records from January 24, 2011 to the present. (Id. at ¶ 3(f).)

Defendants Koch Foods respond that Plaintiff has waived any purported privacy interest by placing her mental condition at issue and opposing their previous motions for a Rule 35 examination. (Doc. No. 213 at 2.) Defendants Koh Foods assert that the records sought are relevant to Plaintiff's claims for emotional distress due to severe psychological and emotional trauma, and relevant to her claims for constructive discharge. (Id. at 3-5.) Defendants Koch Foods contend that they did not delay in seeking the information as Plaintiff failed to disclose SOS as her provider in her interrogatory responses and failed to provide details during her deposition. (Id. at 4, 6.) As of this date, the subpoena still has not been served on SOS.

Federal Rule of Civil Procedure 45 authorizes the issuance of a subpoena to a non-party to produce designated documents or electronically stored information. See Fed. R. Civ. P 45(a)(1). For good cause, the court may enter a protective order forbidding or limiting the disclosure of the information requested in the subpoena. See Fed. R. Civ. P. 26(c)(1)(A), (D) (a party “may move for a protective order in the court where the action is pending” and “the court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including “forbidding the disclosure or discovery,” “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters”).

“The party seeking a protective order has the burden to demonstrate good cause and must make ‘a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements’ supporting the need for a protective order.” Meide v. Pulse Evolution Corp., No. 3:18-cv-1037-J-34MCR, 2019 WL 1518959, at *5 (M.D. Fla. Apr. 8, 2019) (citing Auto-Owners Ins. Co. v. Southeast Floating Dock, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005)). “Good cause represents the ‘sole criterion’ for assessing the propriety of a protective order, and ‘it generally signifies a sound basis or legitimate need to take judicial action.’ ” Roche Diagnostics Corp. v. Priority Healthcare Corp., No. 2:18-cv-01479-KOB-HNJ, 2019 WL 8014475, at *6 (N.D. Ala. Nov. 4, 2019) (quoting In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)). In the context at bar, critical factors for review include “the severity and the likelihood of the perceived harm” and “the availability of a less onerous alternative.” Id. (citation omitted).

*3 In addition to requiring good cause, the district court must “balance the interests of those requesting the order” in keeping the information confidential against the other side's interest in obtaining the information for trial preparation and defense. Ekokotu v. Federal Exp. Corp., 408 F. App'x 331, 336 (11th Cir. 2011) (quoting McCarthy v. Barnett Bank of Polk Cnty., 876 F.2d 89, 91 (11th Cir. 1989)); see also Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (“While Rule 26(c) articulates a single [good cause] standard for ruling on a protective order ... the federal courts have superimposed a somewhat more demanding balancing of interests approach to the Rule.”); Wrangen v. Pennsylvania Lumbermans Mut. Ins. Co., 593 F. Supp. 2d 1273, 1277 (S.D. Fla. 2008) (“The party requesting a protective order must make a specific demonstration of facts in support of the request. A court must then balance the competing factors involved in determining whether good cause has been shown.”). However, “[t]he decision to enter a protective order is within the court's discretion and does not depend on a legal privilege.” Id. at 1277.

The party seeking to enforce a subpoena bears the burden of demonstrating that the request is relevant. Fadalla v. Life Auto. Prods. Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007) (citations omitted). The party resisting the subpoena must show that the information is not relevant or is of such marginal relevance that the potential harm the discovery may cause would outweigh the presumption in favor of broad disclosure. Equal Employment Opportunity Comm'n v. AutoZone. Inc., No. CA-06-0606-KD-C, 2007 WL 9717741, at *2 (S.D. Ala. Aug. 3, 2007). Relevance for discovery purposes is much broader than relevance for trial purposes and should be allowed “unless it is clear that the information sought has no possible bearing on the subject matter of the action.” Dunkin' Donuts, Inc. v. Mary's Donuts, Inc., No. 01-0392-CIV-GOLD, 2001 WL 34079319, *2 (S.D. Fla. Nov. 1, 2001).

“The scope of discovery that may be sought through a Rule 45 non-party subpoena is the same permissible scope under Federal Rule of Civil Procedure 26(b).” Stevenson v. Johnson Bros. Corp., No. 2:18-cv-1702-RDP, 2019 WL 108371, at * 2 (N.D. Ala. March 7, 2019). Rule 26(b) provides in pertinent part that

Fed. R. Civ. P. 26(b). Discovery is subject to the limitations set forth in Rule 26(b)(2)(C) which provides in relevant part:

Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii). Further, “[t]he scope of discovery in Title VII cases is not without limits. The information sought must be relevant and ... [d]iscovery should be tailored to the issues involved in the particular case.” Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992) (citation omitted).

*4 Plaintiff claims good cause exists for a protective order forbidding Defendants Koch Foods from issuing the subpoena to SOS because (1) her orthopedic records are not relevant or proportional to her sexual harassment and retaliation claims given she is not alleging any orthopedic-related claims and not seeking damages for any orthopedic conditions, (2) disclosure of the records would unreasonably and unnecessarily invade her medical privacy, (3) the orthopedic records are not probative on the issue of her emotional injuries resulting from the alleged discrimination and (4) Defendants Koch Foods delayed in seeking the information.

Defendants Koch Foods respond that Plaintiff has waived any purported privacy interest by placing her mental condition at issue by alleging an outrage claim and opposing their previous motions for a Rule 35 examination. Defendants Koch Foods assert that Plaintiff's orthopedic records are at issue for two reasons. First, the records are relevant to Plaintiff's claims for emotional distress as standard intake documentation should include an assessment of her mental health, recent diagnoses and prescription medications which are material in this case because inconsistencies exist regarding the timing of her alleged anxiety diagnosis and prescription anxiety medication. Second, the records are relevant to the reason for Plaintiff's resignation and claims for backpay. Although Plaintiff is claiming constructive discharge, it appears to Defendants Koch Foods from electronically stored information they received through discovery[2] that Plaintiff sought medical treatment from SOS to obtain medical leave for a purportedly debilitating physical ailment and related pain. Defendants Koch Foods contend that they could not seek the requested information by other means and did not delay in seeking the information because Plaintiff failed to disclose SOS as a medical provider in her interrogatory responses and only disclosed SOS at the end of her deposition when questioned about a medical procedure referenced in a text message.

Courts addressing discovery of a plaintiff's medical records for purposes of emotional distress damages “take vastly different views on what should fall within the substantive scope of discoverable medical records.” Cameron v. Supermedia, LLC, No. 4:15cv315-MW/CAS, 2016 WL 1572952, at *3 (N.D. Fla. Apr. 19, 2016) (citation omitted). Considering the facts in the instant case, the undersigned believes that the Cameron court said it best:

*5 Id.

With those principles in mind, the court agrees with Defendants Koch Foods that Plaintiff's orthopedic condition and orthopedic records are squarely at issue as relevant and material to her claim of outrage, to her claim that the sexual harassment led to her constructive discharge, to her claim for backpay due to the constructive discharge, and to her claim for compensatory damages for emotional distress/outrage. Defendants Koch Foods are entitled to explore Plaintiff's orthopedic condition and its effect, if any, on her resignation and mental health. Defendants Koch Foods are also entitled to the discovery of orthopedic records to determine if those records support the cause and extent of Plaintiff's emotional distress and anxiety issues and to determine whether they reflect other sources of stress, emotional distress and matters affecting her health. See e.g., Barnett v. PA Consulting Group, Inc., No. 04-1245, 2007 WL 845886, at *4 (D.D.C. Mar. 19, 2007) (“[A] defendant is entitled to explore whether causes unrelated to the alleged wrong contributed to plaintiff's claimed emotional distress, and a defendant may propound discovery of any medical records of plaintiff in an effort to do so.”) (internal quotation marks and citations omitted); St. John, 274 F.R.D. at 17 (finding defendant was entitled to production of plaintiff's medical records to “include any non-privileged mental or emotional health records, records involving new medical issues for which the plaintiff first sought treatment during the Relevant Time Period, and records involving a medical condition that the defendant has established, through other discovery, may have caused the plaintiff emotional distress”).

The court further finds that the revised subpoena is reasonable in time as it covers records dating back less than six years to the present with the period beginning three years after Plaintiff commenced her employment with Koch Foods and one year prior to the alleged sexual harassment. This period is reasonable to compare Plaintiff's medical condition before and after the alleged sexual harassment. See Barlow v. Dupree Logistics, LLC, No. 1:14-BE-1808-E, 2015 WL 464812, at *8 (N.D. Ala. July 5, 2015) (finding request for medical records dating back three years before plaintiff began working with defendant and continuing to the present a reasonable period to compare plaintiff's medical condition before, during, and after his employment which allegedly caused emotional distress); St. John, 274 F.R.D. at 17 (finding request for medical records dating back to two years prior to the first date of alleged discrimination to the present was the relevant time period). As to the time period covered in the original subpoena proposed by Defendants Koch Foods, the court finds that the request for records from January 24, 2011 to the present is unreasonable in time as nothing in the record indicates that Plaintiff's medical and billing records from SOS for the period of January 24, 2011 to November 2014, if any exist, are relevant to the claims or defenses in this case.

*6 Moreover, the court finds that disclosure of the requested information is proportional to the needs of this case. A subpoena for documents is undoubtedly less invasive than an independent medical evaluation of Plaintiff's mental state which is what Defendants Koch Foods have sought repeatedly to no avail. It appears to the court that the medical and billing information contained in Plaintiff's orthopedic records is relevant and proportional to her claims for emotional distress and constructive discharge, her claims for damages and Defendants Koch Foods' defenses. Although Defendants Koch Foods sought to request these records arguably late in discovery, considering their repeated attempts to obtain an independent medical examination under Rule 35, the late disclosure of SOS as a medical provider by Plaintiff and that Defendants Koch Foods conveyed their intent to subpoena these records prior to the expiration of the discovery deadline, the timing of the proposed subpoena poses no bar to the disclosure of the requested information. Given the proportionality considerations of Rule 26(b)(1), Defendants Koch Foods are entitled to the requested information.

Finally, the court finds that the balancing of the parties' interests is in favor of disclosure of the requested information. The court considered Plaintiff's interests in the confidentiality of her medical condition and billing records and weighed them against Defendants Koch Foods' interests in discovery of information that Plaintiff has squarely placed at issue in this case. The court carefully balanced the parties' interests in deciding, in its discretion, that Defendants Koch Foods are entitled to the documents from SOS. The court acknowledges Plaintiff's interests in privacy however she “has largely waived any privacy interest in the requested documents by filing this lawsuit with the claims asserted and damages asserted, including emotional distress.” See Barlow, 2015 WL 464812, at *8; Equal Employment Opportunity Comm'n v. West Customer Mgmt. Group, LLC, No. 3:10cv378/MCR/CJK, 2013 WL 12086306, at *3 (N.D. Fla. Nov. 4, 2013) (noting that “in filing this [employment discrimination] action, to which [plaintiff] consented, the EEOC placed [plaintiff's] physical and mental health at issue”). In its discretion, the court finds that the balance weighs in Defendants Koch Foods' favor as to the medical records and billing records request to SOS, particularly where a protective order already exists (Doc. No. 20) to protect Plaintiff's privacy and ensure that her private medical matters remain within the confines of this lawsuit. Accordingly, the court finds that Plaintiff failed to meet her burden of showing good cause for the protective order and denies her motion for a protective order forbidding the disclosure of Plaintiff's medical and billing records from SOS.

For the foregoing reasons, it is hereby

ORDERED that Plaintiff's Motion for Protective Order on Defendants' Efforts to Serve a Subpoena on Southern Orthopedic Surgeons (Doc. No. 205) is GRANTED in part and DENIED in part as follows:

DONE this 27th day of April, 2020.

The discovery deadline in this case expired on March 1, 2020. (Doc. No. 144.) At oral argument, upon questioning from the court, Plaintiff failed to provide good cause for the untimely filing of her motion. In fact, Plaintiff could not state a reason for the late filing. Nevertheless, the court considers the merits of this motion.

Defendants Koch Foods argue that text messages between Plaintiff and her co-workers received through discovery discuss Plaintiff “potentially seeking [Family and Medical Leave Act] leave.” (Doc. No. 213 at 6.)