*1 This matter is before the court on Defendants' Motion for Protective Order (Doc. No. 199), the response in opposition thereto filed by Plaintiff (Doc. No. 204) and Defendants' reply (Doc. No. 220). 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.

Plaintiff Ka'toria Gray filed this employment discrimination lawsuit in September 2017 against Defendants David Birchfield, Melissa McDickinson, Koch Foods of Alabama, LLC, and Koch Foods, Inc. (collectively “Defendants”). 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, Inc., and Koch Foods of Alabama, LLC (collectively “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.

On February 19, 2020, Plaintiff provided notice to Defendants of her intent to serve six non-party subpoena duces tecum for the employment and academic records of Sherri Gonzalez (“Gonzalez”), a potential witness in this action. (Doc. No. 199 at 2.) Plaintiff proposed four subpoenas to former and current employers of Gonzalez[1] requesting the following information:

(Doc. No. 199-1.) In addition, Plaintiff proposed two subpoenas to colleges[2] Gonzalez attended requesting “[t]he complete academic and student transcript file(s) of Sherri Gonzalez ... maintained by the Registrar's office ....” (Doc. No. 199-2.) Defendants raised an objection to the issuance of the subpoenas arguing that the employment and educational records are not relevant to any claim or defense in this case. (Doc. No. 199-3 at 4.) The parties conferred to resolve the dispute but no agreement was reached.

*2 On February 27, 2020, Defendants timely filed a motion for protective order, pursuant to Federal Rule of Civil Procedure 26(c), arguing that the information sought by Plaintiff in the six subpoenas is not relevant to the claims and defenses of the parties in this case. (Doc. No. 199.) Defendants also assert the subpoenas are overbroad because Gonzalez is not a party to this action, a decision-maker or bad actor. (Doc. No. 199 at 5.) Defendants urge the court to enter a protective order prohibiting Plaintiff from issuing the six proposed subpoenas. (Id.)

Plaintiff responds that Defendants lack standing to challenge the subpoenas because Defendants are not seeking to protect a personal privilege or right. (Doc. No. 204 at 1-5.) Plaintiff contends the employment and academic information sought in the proposed subpoenas are relevant and discoverable for impeachment purposes. (Id. at 5.) Plaintiff deposed Gonzalez and posits Defendants will call Gonzalez as a witness at trial to discredit her. (Id. at 9.) Plaintiff challenges Gonzales' deposition testimony and prior representations that she has a legal background, is a paralegal, has knowledge of certain legal principles and documents, and her stated suspicion of Plaintiff's allegations. (Id. at 7.) Plaintiff argues inconsistencies exist as to the paralegal experience of Gonzalez and her lack of education which need to be explored through the requested subpoena information. (Id. at 8.) Plaintiff urges the court to deny Defendants' motion. (Doc. No. 204 at 9.)

Defendants reply that Plaintiff is incorrect in her assertion that a party cannot assert relevancy objections to proposed non-party subpoenas and maintain they have standing to challenge the subpoenas by a protective order. (Doc. No. 220.) Defendants contend that the issuance of the proposed subpoenas by Plaintiff to search for possible impeachment evidence to attack Gonzalez's credibility is prohibited by Federal Rule of Civil Procedure 26 and an abuse of discovery rules. (Id. at 3.)

As of this date, the subpoenas have not been issued by Plaintiff.

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 At the outset, the court finds that Plaintiff's lack of standing argument misses the mark. Defendants plainly have standing to challenge the subpoenas at issue because under Rule 26(c), a party to a lawsuit may move the court for entry of a protective order and challenge third-party subpoenas on the basis that they seek irrelevant information. See Auto Owners Ins. Co., 231 F.R.D. at 429. Accordingly, contrary to Plaintiff's assertion, Defendants' challenge to the subpoenas is properly before the court.

The court has considered the allegations alleged in the Third Amended Complaint and Defendants' stated defenses. Although Gonzalez is not mentioned in the Third Amended Complaint, it is clear to the court that she is a former employee of Defendants Koch Foods who worked in the human resources department from April 2016 to March 2017. Plaintiff apparently reported some of the allegedly harassing behavior to Gonzalez on the same day Plaintiff resigned from her employment. Gonzalez did not seriously consider Plaintiff's allegations. Gonzalez is an anticipated lay witness for the Defendants[3] and has been deposed by Plaintiff. During her deposition, Gonzalez testified that she has a legal background, has knowledge of employment discrimination and law issues, and can discern when a victim is being truthful. Gonzalez also testified that she is a paralegal without a certification or college degree. Gonzalez further testified as to her skepticism of Plaintiff's harassment allegations. Plaintiff has not alleged nor argued that Gonzalez harassed her, discriminated against her or even played a vital role in any of the claims stated in the Third Amended Complaint – all of which tend to show that Gonzalez's personal knowledge of the alleged unlawful conduct is limited and remotely relevant to the issues of the case. Given these circumstances, there is nothing to indicate that Gonzalez's college transcripts, personnel file, employment verifications,[4] job performance, wages, discipline records or any other document sought in the six subpoenas would have any bearing on Plaintiff's claims or Defendants' defenses in this case.

Moreover, Plaintiff had the opportunity to depose Gonzalez and to question her about her lack of college degree or paralegal certification and prior work history – the same information that would be reflected in her personnel files and college transcripts – thus a less burdensome alternative was available and Plaintiff cannot claim prejudice by the inability to obtain the requested records. Indeed, it is clear from the deposition transcript excerpts submitted by the parties that Plaintiff raised the inconsistencies of which she is concerned during Gonzalez's deposition and Gonzalez admitted to her lack of college degree, absence of paralegal certification and varying years of employment in different legal offices. Plaintiff offers no explanation as to why Gonzalez's deposition testimony is insufficient for impeachment purposes. Clearly, Plaintiff can impeach Gonzalez's credibility at trial without having her college transcripts or personnel files from her current and former employers.

*5 Further, the court finds that disclosure of the requested information is not proportional to the needs of this case. Plaintiff is seeking a large amount of personal material – college transcripts from two colleges and employment documents reflecting wages paid, training received, employment verifications, work performance, termination, and discipline from four different employers that cover a time period of over ten years – about a non-party in order to discover information which Plaintiff hopes will explain purported inconsistencies in Gonzalez's years of paralegal experience (“about 20 years” of paralegal experience versus “13 years” of paralegal experience), Gonzalez's limited education (she admitted in her deposition testimony that she attended only one semester at both colleges), and Gonzalez's lack of college degree or certificate supporting her paralegal status (which she also admitted in her deposition testimony). (Doc. No. 204 at 8 ¶8.) Plaintiff is seeking this information so that she can impeach Gonzalez since she anticipates that Defendants will present Gonzalez's testimony to discredit Plaintiff. Simply put, Plaintiff seeks to “cast a wide net for discovery of information in the hopes that something of use may come back [which] is the essence of a fishing expedition precluded by the rule of proportionality.” See Prof'l Recovery Servs., Inc. v. Gen. Elec. Capital Corp., No. CIV 06-2829 (JBS), 2009 WL 137326, at *4 (D.N.J. Jan. 15, 2009). Given the proportionality considerations of Rule 26(b)(1), Plaintiff's request for college transcripts and numerous years of personnel records, performance records, disciplinary records, wages records and other documents from current and former employers of Gonzalez fails.

Finally, the court finds that the balancing of the parties' interests is not in favor of disclosure of the requested information. After balancing Plaintiff's stated interest in obtaining this information against Defendants' interest in keeping the information confidential, the court finds that disclosure of the requested information does not weigh in Plaintiff's favor. The court carefully balanced the parties' interests in deciding, in its discretion, that Plaintiff is not entitled to the requested academic and employment records of Gonzalez. Accordingly, the court finds that Plaintiff failed to meet her burden of showing that the documents sought in the proposed subpoenas are relevant and proportional to the needs of this case.

For the foregoing reasons, it is hereby

ORDERED that Defendants' Motion for Protective Order by (Doc. No. 199) is GRANTED.

DONE this 27th day of April, 2020.

Plaintiff intended to seek employment records from Snowden Law Offices, the Alabama Administrative Office of Courts, Guyoungtech USA, Inc., and Masdon Law Office. (Doc. No. 199-1.)

Plaintiff sought information from City of Colleges (Harold Washington) and Northwest – Shoals Community College. (Doc. No. 199-2.)

During oral argument, Plaintiff contended Defendants previously expressed their intent to call Gonzalez as an expert witness at trial or elicit opinion testimony from Gonzalez as a paralegal. In response, Defendants explicitly stated that Gonzalez would be only a lay witness at trial. Defendants expressed no intent to elicit testimony from Gonzalez as to her opinion as a paralegal.

Notably, upon questioning from the court at oral argument, counsel for Plaintiff stated she was “at a loss” as to the relevance of employment verifications to this case.