*1 This matter comes before the Court on Plaintiff Gregory Dunlap's Motion for a Protective Order (“Motion”), which seeks to limit the scope of discovery under a subpoena issued to Dunlap by Defendant Imaging Associates, LLC (“Imaging Associates”).[1] Due to the fact that discovery in this matter is set to conclude on March 31, 2019,[2] Dunlap filed an unopposed Motion for Expedited Consideration, which the Court granted.[3] The Motion has been fully briefed.[4]

For the reasons stated below, Dunlap's Motion for Protective Order is DENIED.

The Motion now before the Court is the latest motion practice in the lengthy and contentious discovery between Dunlap and Imaging Associates.[5] The Court therefore reincorporates the background, factual summary, and relevant analysis from its prior orders resolving various discovery disputes, and restates background facts here only as necessary to resolve this Motion.[6]

Dunlap is pursuing two claims against his former employer, Imaging Associates, for his alleged wrongful termination in August 2014.[7] The parties are currently engaged in discovery, which is scheduled to conclude March 31, 2019.[8] On March 11, 2019, Imaging Associates served two subpoenas on Dunlap seeking telephone records for a five month period beginning April 1, 2014 and ending August 31, 2014.[9] The first subpoena seeks GCI records for the landline that Dunlap used during his employment with Imaging Associates.[10] The second subpoena requests production of AT&T records for that same time period from both Dunlap's personal cell phone and from the cell phone issued to him by Imaging Associates.[11] The parties’ briefing indicates that the requested records will not involve the substance of any conversations or text messages, but is limited to the date, time, duration, and numbers to and from which text messages and calls were sent and received.[12]

Dunlap agrees that production is appropriate for the GCI landline records requested in the first subpoena and for records from Dunlap's work cell phone requested in the second subpoena, which was owned by Imaging Associates.[13] Dunlap's Motion, however, asks the Court to enter a protective order precluding production of most of the personal cell phone records identified in the second subpoena, (the “Disputed Records”) with only limited exceptions.[14] Specifically, Dunlap requests this court limit discovery of records from Dunlap's personal cell phone to only the following: (1) the April 2014 phone call by Dunlap to the Providence Integrity hotline; (2) records of phone calls and text messages between Dunlap and Stevi Morton “between April 2014 and August 2014;” and (3) records of phone calls and text messages between Dunlap and Ward Hinger between June 2014 and August 2014.[15] Imaging Associates opposes the motion.[16]

*2 Fed. R. Civ. P. 26(c) provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Similar to other discovery rules, “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”[17] “Under Rule 26(c), the party seeking the protective order must show good cause to preclude or limit the discovery.”[18] To establish good cause, the moving party must “point to specific facts that will support the request,” and cannot rely on “conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one” or a “mere showing that the discovery may involve some inconvenience or expense.”[19]

Fed. R. Civ. P. 26(b)(1) defines the scope of discovery as follows:

While “[b]road discretion is vested in the trial court to permit or deny discovery,”[20] under Fed. R. Civ. P. 26(b)(2)(C), a court “must limit the frequency or extent of discovery” if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” And, under Rule 26(b)(1), “discovery must be proportional to the needs of the case.”[21]

Dunlap requests the Court enter a protective order limiting discovery of records from Dunlap's personal cell phone sought under the second subpoena. In support of this Motion, Dunlap asserts that the Disputed Records are not relevant, argues that the subpoena is overbroad, and contends that Dunlap's privacy rights in the records bar their disclosure.[22] Dunlap also advances the argument that Imaging Associates already has possession—or can easily obtain—a subset of the records that would be captured by the subpoena.[23] Imaging Associates opposes the motion, contending that the records are relevant and that the subpoena is focused on a limited, but “critical time period” in establishing the facts of the case.[24] Imaging Associates also disputes the existence of any privacy right that Dunlap can properly invoke to prevent the discovery.[25]

As an initial matter, the Court finds no merit to Dunlap's contention that the “request for [Dunlap's] personal cell phone records is an impermissible invasion of [Dunlap's] privacy rights.”[26] “While the Federal Rules of Civil Procedure do permit parties to be excused from certain discovery on the basis of ‘annoyance, embarrassment, oppression, or undue burden or expense,’ there is no generic ‘privacy’ privilege.”[27] Federal courts have found no privacy rights in the data that Imaging Associates seeks, which is limited to the date, time, number, and duration of calls and text messages.[28] Moreover, to the extent that Dunlap asserts a right under the Alaska state constitution, the privacy interest Dunlap has under that provision—if any—is outweighed here by Imaging Associates’ need for this information, as will be addressed below.[29] Thus, no privacy right prevents the disclosure of the records Imaging Associates seeks.

*3 The Court next addresses Dunlap's contentions that the Disputed Records are not relevant to the claims at issue and that the subpoena is not narrowly tailored. Dunlap, in arguing for the protective order, essentially takes the position that discovery to date has resolved all factual areas that could be covered by the Disputed Records, and that any further discovery is thus not relevant.[30] Dunlap also argues that the scope of the request is overbroad, as it extends beyond work hours and involves Dunlap's personal cell phone.[31] In response, Imaging Associates advances several reasons why the requested records are relevant to the claims now before the Court. Summarized briefly, Imaging Associates argues the records are relevant because they may: (1) establish the timing of certain events and of Dunlap's communication with certain individuals; (2) provide insight into Dunlap's communications during the workday; and (3) provide potential impeachment evidence for certain witnesses.[32] Imaging Associates further asserts that Disputed Records cover only the critical period of time at issue; specifically, the five-month time period immediately leading up to Dunlap's termination.[33]

The Court agrees with Imaging Associates that the Disputed Records are relevant and proportional to the needs of the case. Dunlap's summary of the facts of the case cannot substitute for the relevance standard under Fed. R. Civ. P. 26(b)(1), which allows for discovery of material “relevant to any claim or defense.” Here, the Disputed Records go directly to Dunlap's communications with key individuals, and pertain to a critical window of time in establishing the facts of this case: namely, the period between when Dunlap asserts that he raised his concerns with the Providence Integrity Hotline and his termination. Moreover, the Court finds that the request is proportional to the needs of the case: the request at issue will not involve any undue burden, expense, or imposition; rather, the subpoena requests a limited amount of easily available information that is directly relevant to the parties and time period at issue in this action. And, the Court rejects Dunlap's contention that the availability of certain records from Imaging Associates’ CEO Ward Hinger would serve as a viable substitute for the subpoena request, as those records would necessarily be substantially narrower that the scope of what Imaging Associates has requested, and has shown to be relevant.

Ultimately, and finally, Dunlap fails to show good cause for the entry of a protective order as required under Fed. R. Civ. P. 26(c).[34] Dunlap points to no “specific facts ... about the need for a protective order and the harm which will be suffered without one,’ ”[35] but rather relies on the general assertion that Dunlap “has had the same phone number and phone for years,” and that the records at issue “are not publicly available.”[36] Nor Dunlap identify any “annoyance, embarrassment, oppression, or undue burden or expense” that will result from this disclosure.[37] Where, as here, there is “[a] mere showing that the discovery may involve some inconvenience,” that assertion “does not suffice to establish good cause under Rule 26(c).”[38]

*4 For the foregoing reasons, Plaintiff Gregory Dunlap's Motion for a Protective Order at docket 217 is DENIED. Plaintiff is hereby ordered to comply with the subpoenas as issued.

IT IS SO ORDERED.

Dated at Anchorage, Alaska, this 22nd day of March, 2019.

Dkt. 217.

Dkt. 138 (Order setting Pretrial deadlines).

Dkt. 219 (Motion to Expedite Consideration); Dkt. 221 (Order).

Dkt. 217 (Motion); Dkt. 223 (Response); Dkt. 228 (Reply).

The Court has previously resolved numerous discovery disputes in this matter, many of which have been granted expedited consideration. See, e.g., Dkts. 174, 199, 206, 209, 210, 222.

See Dkts. 174, 199, 210.

Dkt. 75 at 42–43. Dunlap alleges that his termination was in retaliation for protected activity he engaged in under the False Claims Act, and also contends that his termination was in violation of the implied covenant of good faith and fair dealing in his employment contract. Id.

Dkt. 138. The Court has authorized one deposition to be taken after this date, but the parties have not represented to the Court that any additional discovery will occur beyond this deadline.

Dkt. 217-1 at 5; Dkt. 217-2 at 5.

Dkt. 217 at 2; Dkt. 217-1 at 5.

Dkt. 217 at 2; Dkt. 217-2 at 5.

Dkt. 223 at 2. See also Dkt. 217-3 at 2.

Dkt. 217 at 2.

Id. at 2–3.

Id. at 2.

Dkt. 223.

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

Basargin v. State Farm Mut. Auto. Ins. Co., No. 3:16-CV-0041-HRH, 2017 WL 8677338, at *3 (D. Alaska Jan. 11, 2017).

Id. (quoting E.E.O.C. v. Caesars Entm't, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) and Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa 1993)).

Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

Basargin., 2017 WL 8677338, at *1 (internal quotations omitted).

Dkt 217 at 6–8.

Id. at 8. Dunlap specifically contends that Imaging Associates already has, or can easily obtain, records relating to communications between Dunlap and Ward Hinger, who is currently CEO of Imaging Associates. Id.

Dkt 223 at 5–6, 7.

Id. at 9–10.

Dkt 217 at 4.

Tubar v. Clift, No. C05-1154 JCC, 2007 WL 214260, at *3 (W.D. Wash. Jan. 25, 2007) (citing Fed. R. Civ. P. 26(c)). See also Tubar, 2007 WL 214260, at *3 (“Generally, federal law governs as to discovery of information relevant to federal claims in federal court.”).

See, e.g., Mintz v. Mark Bartelstein & Assocs., Inc., 885 F.Supp.2d 987, 1001 (C.D. Cal. 2012) (“Federal law also supports the Court's conclusion that the disclosure of telephone numbers, as well as the date, time, and duration of calls does not represent a significant intrusion of Plaintiff's privacy.”).

The sole case Dunlap cites in relation to his argument that the Alaska constitution protects against such discovery is distinguishable. That case, Porter v. Osborn, involved the confidential personnel records of a state employee that were protected by Alaska state law and the Alaska constitution. Porter, No. 3:18-cv-00142-JWS, 2009 WL 10673253, at *2 (D. Alaska Aug. 4, 2009). Moreover, the court in Porter found that disclosure was appropriate, stating that “[w]eighted against Osborn's expectation of privacy in his personnel file ... the balance strongly favors disclosure.” Id. at *3.

See, e.g., Dkt. 217 at 6 (arguing that because Radecic “testified at his deposition that he knew Ms. Moran and Mr. Dunlap were dating, and that he did not believe that their relationship affected Mr. Dunlap's job performance”); id. at 7 (asserting that communications between Dunlap and Ms. Moran, the Imaging Associates compliance officer, are irrelevant because Dunlap's concerns “were not reported through the compliance officer or the IA hotline for compliance issues”); id. at 8 (asserting that “there is no reason why personal cell phone records are needed to establish” facts already testified to by Radecic and Imaging Associates board member Stevi Moran).

Id. at 5–6.

Dkt. 223 at 5–6.

Id. at 7.

Basargin, 2017 WL 8677338, at *3 (stating that “[u]nder Rule 26(c), the party seeking the protective order must show good cause to preclude or limit the discovery” (citing Doubleday v. Ruh, 149 F.R.D. 601, 613 n.13 (E.D. Cal. 1993))).

Id. (quoting E.E.O.C. v. Caesars Entertainment, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006)).

Dkt. 217 at 5.

Fed. R. Civ. P. 26(c)(1).

Basargain, 2017 WL 8677338, at *3.