*1 This matter is before the court on Plaintiff's Motion for Protective Order on Defendants' Efforts to Serve a Subpoena on Tallassee Health and Rehabilitation (Doc. No. 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 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 through April 22, 2016.

On February 25, 2020, Defendants Koch Foods provided notice to Plaintiff of their intent to serve a non-party subpoena duces tecum on Plaintiff's current employer, Tallassee Health and Rehabilitation (“THR”) requesting the following information:

(Doc. No. 206-2.) 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. 206-1 at 3.) Plaintiff acknowledged that information relating to her earnings following her employment with Defendants Koch Foods could be relevant to calculating her lost wages and did not object to Defendants Koch Foods requesting documents reflecting the wages paid to her from April 2016 to the present. (Doc. No. 206 at 2 n.1.) Plaintiff however objected to the remaining requested information[1] and proposed a modified version of the subpoena to Defendants. (Id.) In an attempt to compromise, Defendants Koch Foods revised the subpoena to request only “Plaintiff's employment applications, and/or any documents referencing her employment with Defendants, pay records, benefits records, performance evaluations, and records related to any disciplinary actions, including termination.” (Doc. No. 206-1 at 2.) No agreement was reached between the parties.

*2 On March 9, 2020, after expiration of the discovery deadline,[2] 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 original THR subpoena is not relevant or proportional to her sexual harassment and retaliation claims which are based on events from November 2015 through April/May 2016. (Doc. No. 206 at ¶ 3.) Plaintiff also argues that Defendants Koch Foods seek to unreasonably and unnecessarily invade her privacy. (Id.) Plaintiff urges the court to enter a protective order prohibiting Defendants Koch Foods from issuing a subpoena to THR seeking her entire employment record for an unspecified date or period. (Id. at 1.)

Defendants Koch Foods respond that Plaintiff's motion is much ado about nothing because she objects to the subpoena requests they originally proposed and they revised those requests to narrow the scope of the subpoena. (Doc. No. 213 at 7-13.) Defendants Koch Foods assert that they are entitled to the requested information. (Id. at 12-13.) As of this date, Defendants Koch Foods have served neither the original nor the revised versions of the subpoena.

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).

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.

*3 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).

Considering Defendants Koch Foods have withdrawn their original proposed subpoena and proposed a revised subpoena, the court addresses only the motion for protective order as it relates to the revised THR subpoena proffered by Defendants Koch Foods. Accordingly, the court focuses on the six categories of documents that Defendants Koch Foods seek under the revised THR subpoena: (1) pay records and benefits records; (2) Plaintiff's application for employment; (3) Plaintiff's employee file or personnel file; (4) performance evaluations for Plaintiff; (5) records related to any disciplinary actions against Plaintiff, including termination; and (6) any documents referencing Plaintiff's employment with Defendants Koch Foods. The court addresses each category in turn and concludes by addressing Plaintiff's privacy interests.

A. Pay Records and Benefits Records

*4 These requested records require little discussion. Defendants Koch Foods correctly argue that Plaintiff has a duty to mitigate her damages[3] and documents showing her compensation and employee benefits received from THR are relevant to her damages claim. (Doc. No. 213 at 8.) Plaintiff does not dispute the relevance of these documents for the period of April 2016 to present and raises no objection to the subpoena request. (Doc. No. 206 at ¶ 3(e)(vii), (viii).) The court agrees that this information is relevant and material to show Plaintiff's earnings or her efforts to mitigate her damages. See Giambrone v. Kearney & Co., P.C., No. 8:16–cv–2083–T–30AAS, 2017 WL 2538705, at *1 (M.D. Fla. June 12, 2017) (finding subpoena request to plaintiff's subsequent employers for information relating to plaintiff's dates worked and compensation packages was directly relevant to her claim for damages); Stevenson, 2019 WL 108371, at * 4 (finding defendants were permitted to subpoena documents from plaintiff's subsequent employer showing dates of employment and compensation earned). Therefore, having no objection from Plaintiff, the motion for protective order is denied as to the subpoena request for documents showing the compensation paid and employee benefits provided to Plaintiff by THR from April 2016 to present.

B. Employment Applications

Defendants Koch Foods argue that Plaintiff's employment applications at THR are relevant to her claim of constructive discharge because they would contain her characterization of her resignation from employment with Koch Foods. (Doc. No. 213 at 10.) Plaintiff asserts that the applications would not contain information relevant to prove or disprove her employment discrimination claims, that Defendants Koch Foods are seeking to “unnecessarily invade her privacy” and that the request is not “proportional to the needs of the case.” (Doc. No. 206 at ¶ 3(e)(ii).)

The court agrees with Defendants Koch Foods that the employment applications submitted to THR by Plaintiff, after she resigned from Koch Foods, may provide relevant information in her characterization of her departure from Koch Foods which may be material to the defenses in this case. See Stevenson, 2019 WL 108371, at * 4 (finding defendant was permitted to subpoena plaintiff's employment applications from his subsequent employers because “it is relevant how Plaintiff described the reasons he left [the defendant]”); Richards v. Convergys Corp., Nos. 2:05–CV–00790–DAK, 2:05–CV–00812 DAK, 2007 WL 474012, at *3 (D. Utah 2007) (finding information in employment applications may be relevant in discrimination case). In addition, Plaintiff has not shown good cause for the entry of a protective order forbidding disclosure of this information. After balancing Defendants Koch Foods' need for obtaining this information for its defense against Plaintiff's privacy interest, the court finds that the scales do not tip in Plaintiff's favor. Defendants Koch Foods's request for Plaintiff's employment applications submitted to THR from 2016[4] are proportional to the needs of the case and are due to be disclosed. Accordingly, Plaintiff's objection to the subpoena request for the employment applications is overruled and the motion for protective order is denied as to these documents.

C. Personnel File, Performance Evaluations and Disciplinary Actions

Defendants Koch Foods argue that Plaintiff's personnel file, performance evaluations, and records related to any disciplinary actions within the possession of THR are relevant to her employment discrimination claims, their defenses and Plaintiff's credibility. (Doc. No. 213 at 9.) Plaintiff responds that these documents are not relevant to prove or disprove Koch Foods engaged in employment discrimination toward Plaintiff, the subpoena request “is not limited in time and includes the time before and after events relevant to this action,” and “seeking the entire personnel file for an unlimited period seeks information that is neither relevant nor proportional to the case.” (Doc. No. 206 at ¶ 3(e)(v).)

*5 The court agrees with Defendants Koch Foods insofar as the subpoena request for Plaintiff's personnel file, evaluations and disciplinary action records from THR in this employment discrimination case is relevant on its face. See Equal Employment Opportunity Comm'n v. AutoZone, 2007 WL9717741, at * 4 (“[t]he Court finds that the requests for personnel files, applications for employment forms, evaluations, disciplinary action records, and payroll records [from plaintiff's subsequent employers] are relevant on their face and EEOC has failed to show otherwise”). Moreover, Plaintiff's disciplinary and other performance records are also potentially relevant to her efforts to reasonably mitigate her damages as such documents may demonstrate if she rejected certain employment benefits available to her or if her general job performance caused her not to be considered for opportunities with additional benefits. See Kimes v. Univ. of Scranton, No. 3:14-CV-00091, 2015 WL 778376, at *3 (M.D. Pa. Feb. 24, 2015); Cornell v. Jim Hawk Truck Trailer, Inc., 298 F.R.D. 403, 407 (N.D. Iowa 2014) (performance evaluations and disciplinary records of subsequent employers could show plaintiff's post-termination earnings suffered because of disciplinary issues). Since Defendants Koch Foods bear the burden of proving any failure to mitigate,[5] they are entitled to records relevant to that calculation. Further, Plaintiff's personnel file, evaluations, and disciplinary action records might reflect her mental state. See Barlow v. Dupree Logistics, LLC, No. 1:14-BE-1808-E, 2015 WL 464812, at *8 (N.D. Ala. July 5, 2015) (finding defendant in employment discrimination action was “entitled to records that might reflect [plaintiff's] mental state such as disciplinary records, termination records ... while the court cannot say with certainty that those documents would definitely reflect on his mental state ....”). Accordingly, the court finds the requested information is relevant to Defendants Koch Foods' defense and proportional to the needs of the case. Simply put, Plaintiff has not shown good cause for forbidding the disclosure of this information so her objections to the disclosure are overruled. The motion for protective order is denied for this requested information.

D. Documents Referencing Plaintiff's Employment with Defendants Koch Foods

Finally, the court turns to consider whether Defendants Koch Foods may seek from THR “any documents referencing Plaintiff's employment with Koch Foods.” Defendants Koch Foods include language requesting these documents in their revised subpoena. (Doc. No. 213 at 12). At oral argument, Plaintiff withdrew her objection to these requested documents. Accordingly, the court finds that Plaintiff's motion for protective order is denied as to this requested information.

E. Plaintiff's Privacy Interests

The court carefully balanced the parties' interests in deciding, in its discretion, that Defendants Koch Foods are entitled to documents from THR. The court acknowledges Plaintiff's concerns that the subpoena could interfere with her current employment relationship and her interests in privacy. Yet, Plaintiff “has largely waived any privacy interest in the requested documents by filing this lawsuit with the claims asserted and damages asserted, including emotional distress.” 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”). Furthermore, the protective order already in place in this case (Doc. No. 20) would ensure that the disclosure of medical information subject to the subpoena would also be subject to the protective order. “As to the effect [the subpoena request may have] on [her] current employment relationship, Plaintiff may well have a legitimate concern; however, [s]he is the one who initiated the lawsuit asserting claims that [Defendants Koch Foods] have a right to defend and to engage in the discovery process to establish evidence in that defense.” See Barlow, 2015 WL 464812, at *8. Given the reasonable scope of the discovery sought, the court concludes in its discretion that the balance of interests weighs in favor of Defendants Koch Foods issuing the subpoena to THR consistent with the court's aforementioned findings. Notwithstanding, to ensure that Plaintiff's privacy interests are properly protected, the parties are directed to confer and submit a joint proposed protective order governing the production and use of the records to be disclosed from THR.

For the foregoing reasons, it is hereby

ORDERED that Plaintiff's Motion for Protective Order on Defendants' Efforts to Serve a Subpoena on Tallassee Health and Rehabilitation (Doc. No. 206) is GRANTED in part and DENIED in part as follows:

It is further

ORDERED that on or before May 4, 2020, the parties are directed to confer and submit a joint proposed protective order governing the production and use of the records to be disclosed from Tallassee Health and Rehabilitation.

DONE this 27th day of April, 2020.

Specifically, Plaintiff states in her motion that she objects to the following: (1) “any and all records;” (2) “applications for employment online/electronic or otherwise;” (3) “testing records;” (4) “any and all correspondence, memoranda and notes;” (5) “employee file, personnel file;” (6) “all written records regarding results of interviews;” (7) “computer data or compilations or reports, printouts, listings or reports for each pay period showing wages paid, including gross amount, each deduction, and net payment, hours, including regular, overtime, sick, holiday and vacation;” (8) “any other benefit paid;” (9) “all other forms of documents, at any time, including without limitation, all records and documents pertaining to Plaintiff.” (Doc. No. 206 at 5-9.) Plaintiff does not object to Defendants Koch Foods' request for documents showing wages paid to her and the employee benefits provided to her from April 2016 to the present. (Doc. No. 206 at 8-9.)

The discovery deadline in this case expired on March 1, 2020. (Doc. No. 144.) Upon questioning from the court at oral argument, 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.

See Bahadirli v. Domino's Pizza, 873 F. Supp. 1528, 1535 (M.D. Ala. 1995) (“It is true that a Title VII plaintiff has a duty to mitigate damages.”).

It is possible that Plaintiff submitted an application for employment with THR prior to her employment with Defendants Koch Foods and any information on that application would be too attenuated to aid Defendants Koch Foods in this case. Thus, the scope of the subpoena is due to be limited to records from 2016 to present.

See Nord v. U.S. Steel, 758 F.2d 1462, 1470-71 (11th Cir. 1985) (stating that a defendant bears the burden to establish failure to mitigate).