*1 Before the Court is Plaintiff's Objection to and First Motion to Quash Subpoena to West Georgia College. (Doc. 58). For the reasons stated below, the Motion is GRANTED.

In September 2020, Plaintiff brought this action against Defendants, her former employers, alleging that they failed to pay her minimum wage and overtime in violation of the Fair Labor Standards Act (“FLSA”); violated her rights under the Family and Medical Leave Act (“FMLA”);[1] and intentionally inflicted emotional distress. (Doc. 1).

Sometime in December 2021,[2] Defendants served subpoenas seeking the production of documents, information, or objects; or to permit inspection of premises to five nonparties to this case. Defendants served three subpoenas to Plaintiff's current and former employers—WellStar, Peachtree City Medical Center, and Florida Medical Center—and sought the following: (1) Plaintiff's application for employment; (2) her resume; (3) her personnel files; (4) a description of positions she held; (5) her dates of employment; (6) her pay rate; (7) her performance evaluations; (8) her disciplinary records; (9) any documents related to complaints filed by Plaintiff or involving her, including any investigative files related to the complaints; (10) her attendance and time records, including records of clock in and out and leave records; (11) her termination or resignation records, including the reason for separation; and (12) whether Plaintiff was able to be rehired. (Doc. 61-1 at 10–23, 31–37). Defendants served two subpoenas to Plaintiff's colleges—Fortis College and West Georgia College—and sought her: (1) education records; (2) degrees or certificates earned; (3) transcripts; and (4) credit hours completed. (Doc. 61-1 at 3–8, 24–30).

In the instant motion, Plaintiff argues that Defendants served a subpoena to nonparty West Georgia College without giving her prior notice, in violation of Federal Rule of Civil Procedure 45(a)(4).[3] She argues that the purported information sought in the subpoena is irrelevant.

*2 In response, Defendants concede that they inadvertently failed to serve the five subject nonparty subpoenas on Plaintiff but argue that they cured their mistake by amending and re-serving all five subpoenas and then providing Plaintiff with notice. Defendants argue that the subpoenas served on Plaintiff's former and current employers are relevant because this case is an employment action and the subpoenas request information that relates directly to their defenses. Defendants argue that the subpoenas to Plaintiff's colleges are relevant because, during her deposition,[4] Plaintiff provided inconsistent testimony as to her educational background and Defendants sought clarity regarding that testimony.

Plaintiff replies that, while Defendants provided her with the amended subpoenas on December 27, 2021, she was never provided with copies of the original subpoenas sent to the five nonparties. Moreover, Plaintiff argues that her current and former employment records are not relevant to the claims in this action. She argues that her education records are not relevant because during her deposition, Defendant Lynn Umstead, a Fed. R. Civ. P. 30(b)(6) witness, testified that there were no performance related issues concerning Plaintiff's employment and no specific degree was required to perform the job.[5] Lastly, Plaintiff argues that Defendants' subpoenas to her employers amount to harassment and could cause her to be terminated from her current employer or unable to seek employment with her former employer based on the beliefs that Plaintiff required the subpoenaed party to retain counsel to respond to the subpoena or that she is a litigious employee.

The undersigned must first decide whether Defendants' subpoenas were procedurally defective because they failed to give Plaintiff prior notice of the subpoenas as required by Fed. R. Civ. P. 45. A party may command a nonparty to “produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii). Before a party may serve a subpoena on a nonparty, she must serve a notice and copy of the subpoena on each party. Id. 45(a)(4). Generally, procedural defects in a subpoena may be cured by amendment of the subpoena and re-service. Cincinnati Ins. Co. v. Cochran, 198 F. App'x 831, 832 n.3 (11th Cir. 2006); see also Burch v. P.J. Cheese, Inc., No. 2:09-CV-1640-SLB, 2010 WL 9081738, at *2 (N.D. Ala. Aug. 20, 2010) (noting that, while defendant's concurrent notice to plaintiff of its intention to serve a nonparty subpoena did not meet Rule 45's requirement of prior notice, the defendant could resolve that procedural deficiency in the future).

While Defendants admittedly failed to provide prior notice of the five nonparty subpoenas to Plaintiff, it appears their amendment and re-service of those subpoenas cured the procedural defect. Accordingly, the undersigned will consider the remaining arguments.

The next issue the Court must decide is whether Plaintiff has standing to move to quash the subpoenas issued to the five nonparties. “[A] party has standing to challenge a subpoena when she alleges a ‘personal right or privilege with respect to the materials subpoenaed.’ ” See Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 555 n.3 (N.D. Ga. 2001) (quoting Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)).

Neither party addresses whether Plaintiff has standing to object to the nonparty subpoenas. Nevertheless, other courts have found that a party has a personal right with respect to information contained in her employment records. See e.g., Bahrami v. Maxie Price Chevrolet-Oldsmobile Inc., No. 1:11-CV-4483-SCJ- AJB, 2013 WL 3800336, at *2 (N.D. Ga. June 19, 2013); Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437 (CFD), 2007 WL 2786421, at *1 (D. Conn. Sept. 5, 2007) (“The plaintiff clearly has a personal right with respect to information contained in his employment records”). Additionally, courts have found that a party has a personal right to her educational records. See Black v. Kyle-Reno, No. 1:12-CV-503, 2014 WL 667788, at *1–2 & n.1 (S.D. Ohio Feb. 20, 2014) (collecting cases and finding that Plaintiff possessed a right of privacy in her educational records under the Family Educational Rights and Privacy Act of 1974 (“FERPA”)); Alig-Mielcarek v. Jackson, 286 F.R.D. 521, 526 (N.D. Ga. 2012) (finding that the purpose of FERPA is to protect individuals' right to privacy by limiting the disclosure of educational records without their consent). Accordingly, Plaintiff has standing to object to the five nonparty subpoenas.

*3 Next, the undersigned must decide whether the information requested from the five nonparties is relevant. The scope of discovery for a nonparty is the same as the scope of a discovery request made upon a party to the action under Rule 26. Am. Fed'n of State, Cnty. & Mun. Emps. (AFSCME) Council 79 v. Scott, 277 F.R.D. 474, 476 (S.D. Fla. 2011). The scope of discovery under Rule 26 is as follows:

Fed. R. Civ. P. 26(b)(1). “[I]nformation is relevant if it has a ‘tendency to make a fact more or less probable’ and ‘the fact is of consequence in determining the action.’ ” Jordan v. Comm'r, Miss. Dep't of Corr., 947 F.3d 1322, 1329 (11th Cir.) (quoting Fed. R. Evid. 401), cert. denied, 141 S. Ct. 251 (2020).

In applying these principles, the party objecting to discovery must explain why a request is vague, seeks irrelevant information, is disproportionate, or is unduly burdensome. See Fed. R. Civ. P. 33(b)(4) and 34(b)(2)(B); Sallah v. Worldwide Clearing LLC, 855 F. Supp. 2d 1364, 1376 (S.D. Fla. 2012) (“A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome.”). When the relevancy of a discovery request is not apparent, the party seeking discovery has the burden to show its relevancy. AFSCME Council 79, 277 F.R.D. at 477.

While Defendants contend that Plaintiff's employment and educational records are relevant to the claims in this case, their relevancy is not apparent. See id. This is particularly true given that Plaintiff's claims surround Defendants' alleged failure to compensate her while she was working from home and their alleged treatment towards her while she was recovering from COVID-19. (See Doc. 1). This is not an employment discrimination case alleging a failure to hire where Plaintiff's prior work history or educational records would clearly be relevant. See Black, 2014 WL 667788, at *3 (granting plaintiff's motion to quash because her educational records were not relevant to the determination of whether she was a competent employee or failed to perform her job). While Defendants contend that the subpoenas for her educational records were to clarify Plaintiff's inconsistent testimony at a deposition, they have made no specific allegations in either their response to the instant motion, (Doc. 55), or their answer, (Doc. 22), establishing how Plaintiff's educational records may be relevant to the claims or defenses in this case.

Moreover, Defendants' conclusory assertion that Plaintiff's employment records “go directly to [their] defenses,” is unsupported in the record and appears speculative at best. See Bahrami, 2013 WL 3800336, at *4 (“Where parties have cited speculative reasons for seeking employment records, courts have granted motions to quash subpoenas or for protective orders.”); E.E.O.C. v. S. Haulers, LLC, No. 11-00564-N, 2012 WL 1768064, at *3–4 (S.D. Ala. May 17, 2012) (granting motions to quash because “the mere possibility” that defendant might discover evidence or “fish out” something that might be admissible as impeachment evidence did not justify the broad requests). Furthermore, Defendants have not asserted that Plaintiff was terminated because of issues with her performance or that she was untruthful about her education or previous work history. See Rollins v. Traylor Bros., No. C14-1414-JCC, 2017 WL 1756576, at *4 (W.D. Wash. May 5, 2017) (finding that defendants were entitled to personnel records from plaintiffs' prior employers for plaintiffs who were dismissed for performance reasons only). In fact, Defendants represented in the Joint Preliminary Report and Discovery Plan that they terminated Plaintiff for job abandonment.[6] (Doc. 28 at 4). Nevertheless, even if Defendants had asserted that Plaintiff was terminated for poor performance, they would still have to show how the employment records from her previous employer would be relevant to the claims in this action—which they have not done. See Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV, 2010 WL 1839229, at *3 (S.D. Fla. May 6, 2010) (granting motion for protective order and explaining that “Defendant ... has cited no authority to support his argument that a plaintiff's employment records from his former employer are relevant (or are likely to lead to admissible evidence) to demonstrate poor performance while employed by the defendant. Moreover, courts considering the issue have held to the contrary.”). And the relevance of Plaintiff's subsequent work history is even more tenuous, especially without any contention or support provided by Defendants regarding how that information relates to the claims or defenses in this case. See Warnke v. CVS Corp., 265 F.R.D. 64, 65–69 (E.D. N.Y. 2010) (finding that, in an employment action alleging age-based discrimination, a defendant employer failed to provide adequate support to show it was entitled to subpoena documents regarding statements plaintiff made to subsequent employers, the positions plaintiff held with subsequent employers, the fringe benefits plaintiff received at subsequent jobs, and plaintiff's reasons for leaving any subsequent employment).

*4 Accordingly, Defendants failed to meet their burden to show the relevancy of Plaintiff's educational records and employment records. See AFSCME Council 79, 277 F.R.D. at 477.

Finally, while the undersigned has already found that Defendants failed to meet their burden to show that Plaintiff's employment records are relevant, Plaintiff's argument regarding hardship will also be addressed. Plaintiff contends that Defendants' subpoena sent to her current employer constitutes harassment and that the subpoenas sent to her current and former employers may cause her difficulties in retaining her current job or obtaining re-employment with her former employers.

Other courts have recognized that a subpoena sent to a plaintiff's employer under the guise of a discovery request could be a tool for harassment and result in difficulties with her employer. Rodregues v. CNP of Sanctuary, LLC, No. 11-80668-CIV, 2011 WL 13135966, at *2 (S.D. Fla. Dec. 22, 2011) (collecting cases). To address this legitimate concern, courts have required parties seeking to serve the subpoena to provide a reasonable basis for their belief that the information discovered relates to the case. See id.; Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 256 (S.D. Ind. 2002).

As already noted, Defendants have failed to show how the requested personnel records are relevant to the claims in this case. Their statement that the records “are relevant as this lawsuit is an employment matter,” is insufficient to overcome Plaintiff's legitimate concern of difficulties with her employers. See Rodregues, 2011 WL 13135966, at *2; Graham, 206 F.R.D. at 256.

In sum, because Defendants' subpoenas seek educational and employment information that is not relevant to the claims and defenses at issue in this case and could cause Plaintiff hardship, Plaintiff's motion to quash is GRANTED.

For the reasons above, Plaintiff's Motion, (Doc. 58), is GRANTED. Defendants SHALL DESTROY any records received pursuant to the nonparty subpoenas and any copies thereof and SUBMIT to the Court a certification attesting to the destruction within five (5) days of this Order. Pursuant to the Court's January 25, 2022 Order, discovery shall resume and will end 30 days after the entry of this Order.

IT IS SO ORDERED on this 28th day of March 2022.