Counsel

*1 Before the Court, without oral argument, are Plaintiffs' motion to quash, ECF No. 70, and Defendant's motion for a protective order, ECF No. 72. Discovery in this case had proven quite litigious, with the parties unable or unwilling to resolve disputes independently and without judicial intervention. The Court will thus refer all future discovery disputes to Magistrate Judge Dimke. The Court has reviewed the record, is fully informed, and grants in part and denies in part both motions.

BACKGROUND

Plaintiffs bring a putative class action, alleging causes of action under the Trafficking Victims Protection Act, 18 U.S.C. § 1589(a)(4), the Washington Law Against Discrimination, Wash. Rev. Code § 49.0.180(3), and the Washington Farm Labor Contractors Act, Wash. Rev. Code § 19.30, as well as for breach of contract. ECF No. 38.

Defendant has subpoenaed Taggares Fruit Company, LLC (“Taggares”), demanding “Any and all DOCUMENTS and COMMUNICATIONS in YOUR possession related to hiring, firing, discipline, payroll, hours worked, and daily production for” named Plaintiffs and forty-eight putative class members. ECF No. 70-1 at 10.

Taggares bought Ice Harbor orchard from Defendant in 2020, where Plaintiffs worked in 2017. ECF No. 74. Plaintiffs allege that the harvest production was low in 2017 at Ice Harbor because the quality of the fruit was poor. ECF No. 74 at 3.

PLAINTIFFS' MOTION TO QUASH

A. Legal Standard

The Federal Rules of Civil Procedure permit relatively broad yet tailored and proportional discovery of relevant material. See generally Rule 26(b). Indeed, the Rules expressly allow the discovery of matter that may ultimately be inadmissible as evidence. Id. Subpoenas are but one method for procuring relevant information that parties can employ. See generally Rule 45. “The commentary to Rule 45 [governing subpoenas] makes clear that the scope of available requests by subpoena is equivalent to the scope of available discovery requests under Rule 26.” Muffett v. City of Yakima, CV-10-3092-RMP, 2012 WL 12827488, *1 (E.D. Wash. July 20, 2012). Rule 26(b)(1) permits discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”

But language within Rule 45 explicitly protects subpoenaed parties from overly burdensome and unnecessary discovery requests and includes a mechanism for quashing or modifying a problematic subpoena. See Rule 45(d). Rule 45(d) protects the subject of a subpoena from “undue burden or expense.” Fed. R. Civ. P. 45(d)(1).

Additionally, the court may also limit proposed discovery on a motion or on its own pursuant to Rule 26(b) if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, or that the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

B. Standing

“A party lacks standing to challenge a subpoena issued to a third party unless the party making the challenge claims a personal right or privilege with respect to the discovery sought in the subpoena.” Rugo v. Hardwick, No. 2:16-cv-00444-SMJ, 2017 WL 2623771, at *2 (E.D. Wash. June 16, 2017) (internal quotation omitted).

1. Plaintiffs' Standing Regarding Their Own Employment Records

*2 Since Defendant is pursuing Plaintiffs' employee and payroll information— Plaintiffs' employment records—there is no question that Plaintiffs have a “personal right or privilege” in the requested discovery. See id. But “[a] party's objection that a subpoena to a non-party seeks irrelevant information or would impose an undue burden are not grounds on which a party has standing to move to quash a subpoena when the non-party has not objected.” Wells Fargo & Co. v. ABD Ins., No. C 12-03856 PJH DMR, 2012 WL 6115612, at *2 (N.D. Cal. Dec. 10, 2012). In this case, though, Plaintiffs assert both a personal right or privilege and relevance and burden arguments. Plaintiffs thus have standing to challenge Defendant's subpoena concerning their own employment records.

2. Plaintiffs' standing regarding the employment records of the putative class members

Plaintiffs also seek to quash the subpoena regarding the employment records of forty-eight putative class members. Under Kowalski v. Tesmer, 543 U.S. 125, 130 (2004), third-party standing exists when the party asserting the right has a “close relationship” with the person who possesses the right and the person possessing the right is hindered in their ability to protect their own interests. The Supreme Court has “been quite forgiving with these criteria in certain circumstances,” such as “when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights” and in the First Amendment context. Id. (emphasis in original) (internal quotation omitted). Beyond that, though, the Supreme Court has “not looked favorably upon third-party standing.” Id.

The second prong is met in this case. The putative class members have no notice of the subpoena, and the putative class members are “presumably all in Mexico.” ECF No. 72 at 3. This qualifies as a “hindrance” in their ability to assert their own rights. See Kowalski, 543 U.S. at 130.

The Court must therefore focus on whether Plaintiffs and the putative class members have a sufficiently “close” relationship to qualify for third-party standing. Plaintiffs argue that because the putative class members all worked as H-2A workers at Stemilt in 2017, all had their personnel regards requested in the same subpoena, the Plaintiffs know some the putative class members personally, and they seek the same relief for the same injuries in the class action, they have third-party standing. ECF No. 78 at 7–8.

While an existing attorney-client relationship can confer third-party standing, in Kowalski, the Supreme Court rejected counsel's argument that they had third-party standing due to a hypothetical future attorney-client relationship. 543 U.S. at 130. In that case, the attorneys sought third-party standing on behalf of “as yet unascertained Michigan criminal defendants who will request but be denied, the appointment of appellate counsel.” Id. at 130. Here, Plaintiffs' counsel do not have an attorney-client relationship with putative class members based solely on their status as potential members of an as-yet uncertified class. ECF No. 61 at 2. Although the potential attorney-client relationship in this case is less attenuated than in Kowalski, the Court has not yet determined that the putative class members are similarly situated or otherwise qualify as a class. Plaintiffs' counsel may not ultimately represent the putative class members. And while the subpoena requests the same records from the forty-eight putative class members as it does from Plaintiffs and Plaintiffs know some of the putative class members, this is not sufficient to meet the high bar for third-party standing. See ECF No. 78 at 7–8. Plaintiffs do not have third-party standing to challenge the subpoena with regard to the putative class members at this stage of the litigation.

*3 But, the court may limit proposed discovery on its own under Rule 26(b) if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, or that the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

C. Quashing the Subpoena

1. Plaintiff Jonathan Gomez Rivera

Jose Daniel Gallegos, at his deposition, stated that he worked with Plaintiff Jonathan Gomez Rivera at Taggares in 2018, contradicting Gomez Rivera's testimony that he did not work in the United States in 2018. Compare ECF No. 74-4 at 5 with ECF No. 74-6 at 13–18. “Because it is nearly impossible to prove a negative and the Plainitffs are convinced Plaintiff Jonathan Gomez never worked for Taggares ... after 2017,” in their reply, Plaintiffs partially withdrew their opposition to the subpoena with regard to Gomez Rivera. ECF No. 78 at 4. They state that they will not object to the production of Gomez Rivera's records from 2018 to the present. Despite the Court's analysis below, the Court will allow production of Gomez Rivera's records from that time period.

2. Generally

Defendant has the burden of showing that the subpoenaed records are relevant or may lead to the discovery of relevant evidence. Paananen v. Cellco P'Ship, No. C08-1042-RSM, 2009 WL 2057048, at *3 (W.D. Wash. July 15, 2009) (“Generally, employment records from separate employers are not discoverable due to their highly private nature absent a specific showing by a defendant as to their relevance.”) (citing cases). Defendant must “describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case.” EEOC v. Woodmen of World Life Ins. Soc'y, No. 8:03CV165, 2007 WL 649298, at *1 (D. Neb., Feb. 1, 2007).

Defendant makes several arguments that the requested records are relevant to: (1) the allegation that apple production at Ice Harbor in 2017 was unusually poor, (2) the argument that this allegedly poor production explained why the pace of the 2017 apple harvest at Ice Harbor was low, (3) the allegation H-2A workers were issued written warnings that were false, (4) the allegation H-2A workers received a disproportionate number of written warnings, and (5) the allegation that one supervisor at Ice Harbor exhibited animus toward the H-2A workers. ECF No. 72 at 7. Defendant asserts that disciplinary records, performance evaluations, and production records from Taggares will serve to validate or invalidate Plaintiffs' allegations.

As for the first and second arguments, it is unclear how the personnel records will support or refute this allegation. Defendant has not shown how the productivity of specific workers will not show that the apple production at Ice Harbor during a specific year was poorer than other years. As for the fifth argument, it is unclear how the personnel records would support or refute the allegation that the supervisor, Chuck Cutforth, exhibited animus toward the H-2A workers while working for Stemilt in 2017. Even though he continued to work at Ice Harbor after Taggares began to own, operate, or manage Ice Harbor, the personnel records do not appear to be relevant to this claim. Although the records may in fact be relevant to these arguments, Defendant has not “describe[d] with a reasonable degree of specificity, the information they hope to obtain and its importance to their case.” See Woodmen of World Life Ins. Soc'y, 2007 WL 649298, at *1.

*4 Turning to the third and fourth arguments, Plaintiff argues that the personnel records are not relevant because the subpoena only requests records from H-2A workers. Because the records cannot be compared to domestic workers, no matter the rate of discipline, Defendant cannot show whether they were “disproportionate.” But Defendant correctly argues that an employee's performance with a subsequent employer can support an employer's claim that its employment decisions were legitimate. EEOC v. Vista Unified School Dist., No. 07-1825-IEG(LSP), 2008 WL 4937000, at *1 (S.D. Cal Nov. 17, 2008). The records are thus relevant to this argument.

Yet the subpoena, without any limitation on the records requested, is overly broad. The burden or expense of the proposed discovery outweighs its likely benefit. See Fed. R. Civ. P. 26(b)(2)(C)(i), (iii). Accordingly, the Court directs the parties to propose a range of dates for which Taggares must produce responsive records.

DEFENDANT'S MOTION FOR A PROTECTIVE ORDER

In the Court's Order Adopting Proposed Protective Order, ECF No. 36, the Court rejected Defendant's proposed protective order, determining it was overly restrictive. Id. at 2. It adopted Plaintiffs' narrower protective order and instructed the parties that they could move the Court for an additional protective order if specific discovery needed protection. Id. at 3. Yet Defendant now asks the Court to enter a nearly identical proposed protective order. Compare ECF No. 29 with ECF No. 74-9 (changing the word “Order” to “Agreement” and deleting the final sentence of Paragraph 12 and Paragraph 13).

Defendant argues that Plaintiffs—and, separately, Plaintiffs' counsel— should not be permitted to use the discovered materials in this matter in other cases or other advocacy. ECF No. 82 at 2. In particular, it asserts that Plaintiffs' counsel is pursuing its own agenda, rather than protecting the rights of its clients in this case. Id. at 4. For example, in Torres Hernandez (1:20-cv-03241-SMJ), the plaintiffs cited to materials produced by Stemilt in this action. See, e.g., Torres Hernandez (1:20-cv-03241-SMJ), ECF No. 1 at ¶ 44. Rivera Gomez and Gomez Garcia, the Plaintiffs in this case, are not involved in Torres Hernandez. Defendant claims that because Plaintiffs' counsel has proven themselves to “be [ir]responsible custodians” of the discovery, a broad protective order is now even more necessary than before. ECF No. 82 at 2. But Plaintiffs' counsel argue that they used anonymized, aggregated data, so their actions were permissible. ECF No. 80 at 7.

On the other hand, Plaintiffs' proposed protective order is narrower in scope, and applies only to discovery over which the parties have had a dispute. This is more in line with the Court's prior order to identify specific discovery for which a protective order is needed. Defendant argues that the redaction requirement in “inadequate and unnecessarily burdensome.” Id. at 4. But the sealing mechanism in Defendant's proposed order is equally cumbersome. See ECF No. 74-9 at 10–11.

“[P]arties engaged in litigation do not sacrifice all aspects of privacy or their proprietary information simply because of a lawsuit.” In re Miraplex Products Liability Litigation, 246 F.R.D. 668, 673 (D. Minn. 2007). And there is no public right to access unfiled discovery. See Bond v. Ulteras, 585 F.3d 1061 (9th Cir. 2009). But “[g]enerally, the public can gain access to litigation documents and information produced during discovery unless the party opposing disclosure shows ‘good cause’ why a protective order is necessary.” Phillips v. GMC, 307 F.3d 1206, 1210 (9th Cir. 2002). Accordingly, the Court adopts Plaintiffs' proposed protective order, because Defendants have failed to provide a protective order with sufficient specificity.

*5 Nevertheless, the Court reminds Plaintiffs' counsel that Gomez Rivera and Gomez Garcia, not Columbia Legal Services, are parties to this action. Plaintiffs' counsel does not have free reign to utilize the information and documents discovered in this action in other advocacy with which Plaintiffs are not involved. Plaintiffs must seek leave of this Court before they—or counsel—utilize discovery from this action in other advocacy. This Court will grant leave only in limited circumstances.

Accordingly, IT IS HEREBY ORDERED:

1. Plaintiffs' Motion to Quash Subpoena to Produce Documents, or in the Alternative for a Protective Order, ECF No. 70, is GRANTED IN PART and DENIED IN PART.

A. Although the Court will not quash the subpoena, it will modify it to a reasonable timeframe.

B. The parties shall confer and attempt to agree on a timeframe in good faith. The parties shall file either a joint report with their agreed timeframe or separate reports with proposed timeframes and justifications by no later than March 29, 2021.

2. Defendant's motion for a protective order, ECF No. 72, is GRANTED IN PART and DENIED IN PART.

A. Plaintiffs' proposed protective order, ECF No. 80-1, is ADOPTED and INCORPORATED into this Order by reference.

B. Before Plaintiffs or Plaintiffs' counsel utilize discovery from this matter in other advocacy, Plaintiffs must seek leave of this Court.

3. The Court shall refer any subsequent discovery disputes to Magistrate Judge Dimke.

A. The parties are directed to attempt to resolve any remaining discovery issues without judicial intervention.

IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and provide copies to all counsel.