I. INTRODUCTION

*1 This class-action suit involves claims of racial discrimination against guests of the Sesame Place Philadelphia amusement park (“Sesame Place Philadelphia”), operated by Defendants SeaWorld Parks & Entertainment, Inc. and SeaWorld Parks & Entertainment, LLC (collectively, “SeaWorld” or “Defendants”). Specifically, Plaintiffs allege that costumed SeaWorld employees, performing as various Sesame Street characters refused to interact with Black and Hispanic children at Sesame Place events, opting to interact with White children instead.

Now before the Special Master is non-Party Sadiqa Reynolds's Motion to Quash Plaintiff's Subpoena. (Doc. 65). After reviewing all relevant filings, for the reasons set forth below, the Special Master recommends that the Court grant Ms. Reynolds's Motion to Quash.

II. FACTS AND PROCEDURAL HISTORY

Plaintiffs initiated this action via Complaint filed July 27, 2023. (Doc. 1). On September 28, 2023, Plaintiffs filed an Amended Complaint, asserting a claim for racial discrimination under 42 U.S.C. § 1981 (“Section 1981”), along with state law negligence claims. (Doc. 25). On June 5, 2023, the Court dismissed Plaintiffs' negligent hiring and negligent training claims with prejudice and dismissed Plaintiffs' negligent supervision claim without prejudice.[1] (Doc. 48). The Court permitted Plaintiffs to proceed on their Section 1981 claim, as well as on their state law negligence per se claim, which is premised upon Defendants' alleged violations of Section 1981.

On August 9, 2023, Plaintiffs served a subpoena for testimony and documents on Ms. Reynolds. Ms. Reynolds, CEO of Perception Institute, Inc. (“Perception Institute”) had been retained by Defendants in August 2022 to conduct unconscious/implicit bias training for their employees. (Doc. 65, at 1). Ms. Reynolds objected to the Subpoena on August 28, 2023. (Doc. 65, Ex. 4). On September 22, 2023, Ms. Reynolds filed a Motion to Quash the subpoena, arguing that it seeks irrelevant and confidential information. (Doc. 65). Plaintiffs filed a Response on September 29, 2023. (Doc. 74). On October 3, 2023, the Court referred Ms. Reynolds's Motion to Quash to the Special Master.[2] (Doc. 80). Ms. Reynolds filed a Reply on October 6, 2023. (Doc. 83).

III. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 26(b)(1), the scope of discovery is “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

*2 Pursuant to Rule 45(d)(3), a Court must quash or modify a subpoena “if it requires disclosure of privileged or other protected matter, if it risks unfair prejudice to persons who are the subject of a subpoena's commands or subjects a party to an undue burden. ITOCHU Intern. Inc. v. Devon Robotics, LLC, 303 F.R.D. 229, 232 (E.D. Pa. 2014) (Joyner, J.) (internal citations omitted); Fed. R. Civ. P. 45(d)(3)(A). “The subpoenaing party bears the initial burden of demonstrating the requested discovery is relevant, as defined by Rule 26.” Lejeune, G. v. Khepera Charter School, 2018 WL 11355517, at n. i (E.D. Pa. April 9, 2018) (Beetlestone, J.) (internal citations omitted). The “standards for non-party discovery require a stronger showing of relevance than for party discovery.” Zukoski v. Philadelphia Elec. Co., 1994 WL 637345, at *3 (E.D. Pa. Nov. 14, 1994) (VanArtsdalen, J.); see also, S.G. v. West Willow Fire Co., 2017 WL 11550403, at *3 (E.D. Pa. June 28, 2017) (Leeson, J.) (“where the relevancy of the information is in doubt, the fact that the discovery is sought from a non-party supports the finding that the material is not subject to discovery”).

If the subpoenaing party shows the requests are relevant, the burden then shifts to the challenging party to either contest relevance or show that the request is overbroad.” Id. (internal citations omitted). “When applying Rule 45, courts must balance several competing factors: (1) relevance, (2) need, (3) confidentiality, and (4) harm.” S.R. by & through next friend Rosenbauer v. Pennsylvania Dep't of Hum. Servs., 2020 WL 2539199 at *2 (E.D. Pa. May 19, 2020) (Alejandro, J.) (citing Mannington Mills In. v. Armstrong World Indus., Inc., 206 F.R.D. 535, 529 (D. De. 2002). “Even if the information sought is relevant, discovery is not allowed where no need is shown, or where compliance is unduly burdensome, or where potential harm caused by production outweighs the benefit.” In re Domestic Drywall Antitrust Litig., 300 F.R.D. at 239. “A court should be particularly sensitive to weighing the probative value of the information sought against the burden of production on a nonparty.” Id. (quoting Fears v. Wilhelmina Model Agency, Inc., 2004 WL 79185, at *1 (S.D.N.Y. Apr. 1 2004).

IV. THE SPECIAL MASTER'S ANALYSIS

a. Categories Nos. 4, 5, 6, 7, and 9

Plaintiffs' Subpoena seeks the production of 10 categories of documents from Ms. Reynolds. (Doc. 65, Ex. 3). Categories Nos. 4, 5, 6, 7, and 9 seek documents relating to an “equity review/civil audit” or “racial equity assessment” performed by Ms. Reynolds. Id. However, in a sworn declaration, Ms. Reynolds asserts that neither she nor Perception Institute “performed a race equity review, civil rights audit, or legal investigation or assessment sf the allegations in Plaintiffs' operative complaint.” (Doc. 65, Ex. 2 at ¶4). Ms. Reynolds has effectively already responded to Categories Nos. 4, 5, 6, 7, and 9 by way of her sworn declaration, the accuracy of which Plaintiffs have not called into question. Accordingly, the Special Master will instead address the remaining Categories.

b. Categories Nos. 1, 2, 3, 8, and 10

Category No. 1 seeks documents relating to “advice provided to Sesame Place Philadelphia concerning diversity, equity and inclusion matters.” Category No. 2 seeks documents relating to “consultations provided to Sesame Place Philadelphia concerning ways to eliminate racial discrimination by Sesame Place employees.” Category No. 3 seeks documents relating to “consultations provided to Sesame Place Philadelphia concerning training and supervision on how to identify and address implicit bias, unconscious bias and micro-aggression as it relates to race discrimination and how Sesame Place Philadelphia's employees can better interact with park guests.” Category No. 8 seeks documents relating to “the series of initiatives that includes a comprehensive racial equity assessment, the development and implementation of an anti-bias training and education program and enhancements to ensure a best-in-class diversity, equity and inclusion program.” Category No. 10 seeks documents relating to “actions taken to deliver a more equitable and inclusive experience at Sesame Place Philadelphia”.

1. Relevance to Dismissed Claims

*3 Plaintiffs claim that the requested documents are relevant to Plaintiffs' dismissed negligent supervision claim. (Doc. 74 at 8). Plaintiffs set forth factual allegations that they claim “establish a failure, on the part of Defendants, to exercise ordinary care to prevent intentional harm by employees acting outside the scope of their employment” and that, therefore, the elements required for Plaintiffs to bring a negligent supervision claim are met in this case.” Id. at 9. The fact remains, however, that Plaintiffs' negligent supervision claim remains dismissed, and Plaintiffs have not sought leave to amend. As the Special Master noted in her previous Report and Recommendation (Doc. 79), discovery of a matter relevant only to dismissed claims is improper. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (“it is proper to deny discovery of a matter that is relevant only to claims or defenses that have been stricken, unless the information is otherwise relevant to issues in the case”).

2. Relevancy to Section 1981 Claims

Plaintiffs argue that the information sought from Ms. Reynolds is relevant because it “may relate to, or may lead to the discovery of facts, that support Plaintiff's race discrimination allegations.” (Doc. 74 at 7). In support of this argument, Plaintiffs note that, in a July 23, 2023 press release, Defendants stated that “their experts, including Ms. Reynolds will review their internal practices and identify areas that require change.” (Doc. 74 at 7). However, the July 23, 2023 press release does not specifically reference Ms. Reynolds. (Doc. 74, Ex. 4). Rather, the press release, in relevant part states: “[w]e are instituting mandatory training for all our employees so that we can better recognize, understand, and deliver an inclusive, equitable and entertaining experience for all our guests. We have engaged with nationally recognized experts in this area.” Id. Even assuming this press release refers to Ms. Reynolds, it only indicates that she was engaged to develop a mandatory training program, rather than a retrospective review of company policies.

Similarly, Plaintiffs claim that Defendants stated in an August 9, 2022 Press Release that “[Defendants'] retained experts will conduct a comprehensive racial equity assessment to identify areas of improvement.” (Doc 74 at 7). However, the August 9, 2022 press release states that “[t]he racial equity assessment, training and education program, and DE&I program enhancements are being developed and overseen by national experts in civil rights and diversity equity and inclusion.” (Doc 74, Ex. 5). Defendants identified Ms. Reynolds as among the “national experts.” Id. The August 9, 2022 press release does not state that all of the identified experts would be involved in all of the remedial measures undertaken by Defendants. Nor does it identify which expert or experts would be conducting the racial equity assessment and which expert or experts would develop training and education program.

Defendant's press releases are consistent with Ms. Reynolds's declaration and do not suggest that the documents sought are relevant to Plaintiffs' Section 1981 claim. Rather, read together, the press releases and Ms. Reynolds's declaration indicate Defendants retained Ms. Reynolds to develop a mandatory training program. Plaintiffs have not explained why that program—developed and implemented after Plaintiffs' allegations—is in any way relevant to their Section 1981 claim. While the training in place at the time of Plaintiffs' allegations might have some relevance to Defendants' employees discriminatory intent, or lack thereof, the training program subsequently implemented has no such relevance.[3]

3. Proportionality

*4 Even assuming the information sought by Plaintiffs subpoena has some degree of relevance, it is outweighed by Plaintiffs' lack of need and Ms. Reynolds's interest in confidentiality. Discovery has been ongoing in this matter and has been extensive. Plaintiffs have already obtained a number of Defendants' policies, prior allegations of racial discrimination at Sesame Place, and have deposed a number of Defendants' employees. Plaintiffs have not argued that the information they seek from Ms. Reynolds was unobtainable by party discovery.

Furthermore, Plaintiffs do not dispute Ms. Reynold's claim that, pursuant to Federal Rule of Evidence 407, the information sought by Plaintiffs subpoena would be inadmissible as a subsequent remedial measure. (See Doc. 74 at 10). Plaintiffs correctly note that Rule 407 “goes to the admissibility of evidence at trial and not the discoverability of such evidence.” Id. However, the fact that the information sought would not be admissible at trial is evidence that Plaintiffs' need is marginal, at best.

Likewise, Ms. Reynolds states in her sworn declaration that the information sought by Plaintiffs constitutes “confidential and proprietary research and commercial information” whose disclosure could result in “significant competitive harm”. Given the minimal relevance of the information sought, Ms. Reynolds's interest in protecting her proprietary process weighs in favor of quashing Plaintiffs' subpoena.[4]

V. RECOMMENDATION

For the reasons set forth above, the Special Master recommends that the Court quash Plaintiffs' Subpoena to Ms. Reynolds.

Respectfully submitted,

Amy Kurland, Esq., Special Master