United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RONNIE L. WHITE, District Judge.
This matter is before the Court on Plaintiffs Amended Motion to Quash and/or Modify Subpoenas Duces Tecum and/or Motion for a Protective Order ("Motion"; ECF No. 114).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 26 provides "parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(l). Relevant information "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. "The rule vests the district court with discretion to limit discovery if it determines, inter alia, the burden or expense of the proposed discovery outweighs its likely benefit." Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003)(citing Fed.R.Civ.P. 26(b)(l)); see also Fed.R.Civ.P. 45(c) (authorizing the court to ensure a party responsible for the issuance and service of a subpoena takes reasonable steps to avoid imposing "undue burden or expense" on a person subject to a subpoena).
Plaintiff seeks a protective order and moves to quash subpoenas issued by Defendants to various non-party entities. The subpoenas seek Plaintiffs employment records from his former employers, American Express ("AMEX"), CBIZ Risk & CFO Advisory Services ("CBIZ"), and Mueller Prost, PC ("Mueller Prost;'). Defendants seek documents from Plaintiffs former employers relating to: (l) Plaintiffs employment records, including his personnel files, applications for employment, and other materials pertaining to employment; (2) documents relating to disciplinary actions; (3) performance evaluations; and (4) documents relating to Plaintiffs income.
Plaintiff contends that the documents requested in the subpoenas are irrelevant and overbroad. Plaintiff maintains that the subpoenas constitute fishing expeditions that are irrelevant to Plaintiffs claims or Defendants' defenses, particularly because Plaintiff was employed by these third parties prior to his employment with Defendant Citigroup Management Corporation ("CMC"). (ECF No. 115 at 11). Plaintiff notes that Defendants have not pleaded any after-acquired evidence defense and they admitted in their answer that Plaintiffs employment was "eliminated for business reasons." (ECF No. 115 at 10). Plaintiff also contends that Missouri privacy law applies to this action because this case is based upon diversity jurisdiction. (ECF No. 13 7 at 9). Plaintiff states he has a right of privacy in his personnel records under Missouri law. (ECF No. 137 at 2 (citing State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 611 (Mo. 2007)("Missouri recognizes a right of privacy in personnel records that should not be lightly disregarded or dismissed.")). Plaintiff argues that Missouri's physician patient privilege applies to any medical records that may be in Plaintiffs former employer's employment files. Plaintiff notes that, under Missouri law, garden variety emotional distress claims can be supported by Plaintiffs testimony, do not require expert testimony, and do not waive the physician patient privilege. (ECF No. 13 7 at 9-10). Finally, Plaintiff asserts that Defendants have offered very little justification for Plaintiffs credibility being at issue in this case. (ECF No. 137 at 6).
In response, Defendants contend that the information requested from Plaintiffs former employers is relevant for several reasons. First, Plaintiff claims in his damages calculation that if he would have remained employed by CMC for ten years then he would have received two promotions and increased his compensation almost 400% from when he started. Defendants claim that they are entitled to test the credibility of this theory through discovery of his former employment. (ECF No. 122 at 2). Second, Defendants contend that Plaintiff has put his past work performance at issue by asserting damages to his reputation. Defendants claim that they should be able to discover what issues, if any Plaintiff had at his employment prior to CMC that could have affected his reputation. (ECF No. 122 at 2). Third, Defendants maintain Plaintiffs claim for emotional distress damages also put his employment records at issue because they may contain information related to Plaintiffs emotional state. (ECF No. 122 at 2). Finally, Defendants state that they should be able to search Plaintiffs employment records for information related to his credibility, particularly because Plaintiff failed to acknowledge that he was previously employed by Mueller Prost on his application for employment with CMC.
Defendants also claims that they may have a basis to assert an after-acquired evidence defense premised on Plaintiffs failure to disclose his employment with Mueller Prost on his application for employment with CMC and "other possible misrepresentations." (ECF No. 122 at 12). Defendants also argue that federal law regarding privilege applies to this case, and federal law recognizes no "medical information" privilege, but only a narrow psychotherapist-patient privilege, which Plaintiff waived by seeking damages for emotional distress. (ECF No. 122 at 12-13 (citing E.E.O.C. v. Danka Indus., Inc., 990 F.Supp. 1138, 1141 (E.D. Mo. 1997)). Defendants further argue that the psychotherapist-patient privilege can be waived by disclosure to third-parties, which would have occurred if such documents are included in Plaintiffs employment file. (ECF No. 122 at 13).
As an initial matter, the Court finds that Plaintiff has not demonstrated that he is protected by any federal privilege to withhold production of his former employer's documents. See Danka Indus., Inc., 990 F.Supp. at 1141 ("absent a claim of privilege by the movants or objection by the entities to whom the subpoenas are directed, the Court will not foreclose the defendant's acquisition of the documents"). Plaintiff alleges in his First Amended Complaint ("FAC") that this Court has jurisdiction pursuant to 15 U.S.C. §78-u6(h)(l)(B) and pursuant to 28 U.S.C. §1331 in that this action arises under the laws of the United States. (FAC, ECF No. 38, ifl 3). Therefore, federal law applies, and the Court is not required to recognize state law privileges. Evantigroup, LLC v. Mangia Mobile, LLC, No. 4:11-CV-1328 CEJ, 2013 WL 141605, at *1 (E.D. Mo. Jan. 11, 2013)("in a fundamentally federal proceeding, the court may not recognize a state-created privilege"). In any event, it seems that medical information related to Plaintiffs mental health, which is in Plaintiffs former employer's file, is relevant and discoverable to his allegation oflost income and to his emotional distress claim. "Medical materials regarding [Plaintiffs] mental health may become relevant to establish... that there were causes other than [his] termination that caused [his] emotional distress.'" Lewis v. Temp-Air, Inc., No. 4:14-CV-398 CDP, 2014 WL 5432122, at *2 (E.D. Mo. Oct. 27, 2014)(quoting Eggeringv. MHP, Inc., No. 4:10CV01794 AGF, 2011 WL 6029956, at* 2 (E.D.Mo. Dec. 5, 2011)); see also Danka Indus., Inc., 990 F.Supp. at 1141 ("medical records are discoverable to determine whether the plaintiff-intervenors' past medical history contributed to their claimed emotional distress"). Likewise, there could be medical information in his past employer's file which would shed light on Plaintiff's ability to work. In the event Plaintiffs medical information is in the custody of his former employers, Plaintiff also likely waived any applicable privileges because these medical documents necessarily had been shared with a third party (the employer). United States v. Bolander, 722 F.3d 199, 223 (4th Cir. 2013) (citing United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000)("A patient may waive the psychotherapist-patient privilege by knowingly and voluntarily relinquishing it."). Finally, although the Court is cognizant that subpoenas to a plaintiffs employers often can be fishing expeditions or harassing, the Court believes that Plaintiff has put his credibility at issue in this case and that Defendants are justified for seeking such information, particularly because Plaintiff failed to disclose his former employment with Mueller Prost.
The Court holds that the Plaintiffs former employment is relevant to his damages claim, given that he alleged he would have had a 400% increase in compensation had he stayed at CMC and alleged reputational damages. See Wolfe v. Gallagher Bassett Servs. Inc., No. 4:11CV01610 ERW, 2012 WL 1357751, at *2 (E.D. Mo. Apr. 19, 2012)("Plaintiffs full employment records are likely to lead to the discovery of admissible evidence regarding Plaintiffs credibility and Defendant's defenses."). Defendants should be able to explore whether Plaintiff had any issues·at his prior employment that would have impacted this earnings trajectory and his reputation. See Barsamian v. City ofKingsburg, No. 1:07-CV-003160WW GSA, 2008 WL 2168996, at *3 (E.D. Cal. May 22, 2008)("As Plaintiff has alleged loss of past and future earnings, documents relating to her employment history are relevant and discoverable under Fed.R. Civ.P. 26(b). "). Nevertheless, the Court believes that Defendants' request for all employment records is overbroad. See Document Request No. 1, ECF No. 122-4. The Court finds that Defendants are entitled to review Plaintiffs application for employment, any disciplinary documents or documents related to Plaintiffs termination of employment, performance evaluations, and documents reflecting Plaintiffs level(s) of compensation. In addition, Defendants can review any medical information in Plaintiffs employment file, excluding any medical information in the files of Plaintiffs former employers that is unrelated to either Plaintiffs mental health or other conditibns that might inhibit his ability to work.
IT IS HEREBY ORDERED that the Plaintiffs Amended Motion to Quash and/or Modify Subpoenas Duces Tecum and/or Motion for a Protective Order (ECF No. 114) is DENIED, in part, and GRANTED, in part. The subpoenas are quashed except that Defendants are entitled to documents in Plaintiffs employment records related to Plaintiffs application for employment, any disciplinary documents or documents related to Plaintiffs termination of employment, performance evaluations, and documents reflecting Plaintiffs level(s) of compensation. In addition, Defendants can review any medical information in Plaintiffs employment file, excluding any medical ...