Thursday, January 28, 2016

Citing new federal rules, SDNY quashes subpoena in employment discrimination case

Discovery issues do not usually reach the Court of Appeals, as federal practice does not allow you to appeal rulings prior to the entry of judgment. By that point, the discovery disputes are long forgotten  and the discovery problem is largely unreviewable on appeal anyway because the Court of Appeals will not overturn a trial court's discovery ruling without an abuse of discretion, which is highly deferential to the trial court. This ruling is from the trial court, but it's worth discussing.

The case is Henry v. Morgan's Hotel Group, issued by SDNY Magistrate Judge Cott on January 25. The cite is No. 15-CV-1789 (ER)(JLC), 2016 U.S. Dist. LEXIS 8406 (S.D.N.Y. Jan. 25, 2016). This is an employment discrimination case. Defendant wanted to acquire plaintiff's employment records from a past employer. You will see this from time to time. The way to get these records is for the defendant's lawyer to serve a subpoena on the prior employer. Plaintiff has an opportunity to object to that subpoena before it reaches the employer. One objection may be that the records are irrelevant, or that the request will hurt him in some way.

The judge quashes the subpoena, for the following reasons:

1. The employer's attorney did not give plaintiff's counsel a chance to object to the subpoenas before they went to the prior employers. "The subpoenas were served on Christmas Eve (an arguably sharp tactic to begin with) on both the third-party employers and Henry's counsel. Some courts have quashed subpoenas due to untimely notice alone. The failure to give proper notice is not an insignificant matter, and should not be lightly glossed over by a court." While the employer says plaintiff suffered no prejudice from this tactic, the court disagrees. That brings us to holding number

2. "While it is true that Henry's counsel was able to file a motion to quash before the return date of the subpoena (the subpoena return date being January 11 and the motion to quash being filed on January 8), it is still the case that one of the third-party employers (Café Luxembourg) has already produced records and thus Defendant has had to take steps to ensure that these records have not been made available to counsel litigating the case. Thus, the premature service of the subpoena has created a set of circumstances where defense counsel have had to represent to plaintiff's counsel and the Court that they have not reviewed the documents produced by the third-party. This scenario alone is at least arguably prejudicial to Henry. It would not have occurred had Defendant complied with the Rule."

3. More interestingly, the court finds prejudice to plaintiff because the subpoenas that were served on his prior employers might someday be in a position to hire plaintiff again. That they know plaintiff is bringing a lawsuit might cost plaintiff a future job.

As Henry's counsel points out in her reply memorandum, one of the subpoena recipients, North End Grill, is owned by Union Square Hospitality Group, which owns at least 12 other restaurants in New York City, and another, Café Luxembourg, is under the same ownership as two other well-known restaurants in the City. Thus, if Henry were to seek employment at any of these 16 restaurants in the future, his application to any of them (or any other restaurants to which the managers of these establishments might relocate) might well be adversely affected by the fact that his records had been subpoenaed in this lawsuit. While Defendant makes light of this argument, it is a legitimate concern. Indeed, the Court would hardly be surprised that, if Defendant (or any other establishment) knew that an applicant for employment had brought a lawsuit against another restaurant for discrimination, it might take that into account in the hiring process.

4. The subpoena also violates the recently-amended federal rules. "The amendments to Rule 26(b)(1) now allow discovery of 'any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.'"

Defendant says the records from Henry's prior employers are relevant because "Plaintiff held himself out as being an exceptional waiter, and relied upon his employment at these prior employers as evidence of his employable qualities," and that "if Plaintiff's representations were false, which Defendant strongly suspects, the records from these prior employers are extremely relevant both in connection with Plaintiff's credibility and the doctrine of after-acquired evidence." The court says this is a stretch.

The Court finds this explanation to be an insufficient basis to warrant the subpoenas served on the prior employers. Defendant predicates these subpoenas on wholesale speculation that Henry was untruthful about some of the events of his prior employment. Even if Henry was not an "exceptional" waiter at his prior jobs (whatever that may mean), it is not remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant's actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry's prior employment has little if any bearing on that issue. In addition, as Henry notes, Defendant has not offered sufficient (indeed any) evidence that he made misrepresentations to Defendant regarding his prior employment to justify production of any of the records that Defendant seeks, or satisfied the Court that its production is proportional to the needs of the case.

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