United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motions to
Quash Third Party Subpoenas and Deposition of Custodian of
Records [70, 71].
Steve Futrell and David Gornstein have filed this action
against Defendant eRate Program, LLC, alleging Defendant
violated the False Claims Act, 31 U.S.C § 3729, when
applying for federal funding on behalf of various school
districts and libraries. Plaintiffs, former employees of
Defendant, allege Defendant did not comply with competitive
bidding requirements, falsely certified it had complied with
the competitive bidding process, and failed to retain
documents showing compliance with the competitive bidding
process. Prior to working for eRate, Program, LLC, Futrell
worked for the Special School District of St. Louis County,
and Gornstein worked for Solix, Inc., a company involved with
the administration of the eRate Program.
connection with this lawsuit, Defendant has issued subpoenas
to the Special School District of St. Louis County and Solix,
Inc. The subpoenas request identical information with respect
to each plaintiff. This includes:
1. Any and all documents regarding [plaintiff's]
employment application, including, but not limited to, his
resume, cover letter, and references.
2. Any and all communications between [former employer] and
[plaintiff] regarding his employment application, interviews,
and the interview process.
3. [Plaintiff's] personnel and/or employment file,
including, but not limited to, all employment records,
employment contracts, separation agreements, performance
evaluations, payroll records, benefits and any other
documents constituting [Plaintiff's] personnel or
4. Any and all communications regarding [Plaintiff's]
personnel or employment file, his job performance and his
termination and/or resignation.
have filed a Motion to Quash Third Party Subpoena to Special
School District of St. Louis County and Deposition of
Custodian of Records  and a Motion to Quash Third Party
Subpoena to Solix, Inc., and Deposition of Custodian of
Records , arguing “there is currently no reason for
these confidential records to be released and the deposition
should be quashed.” Plaintiffs alternatively request the
employers first produce any documents associated with the
subpoenas to Plaintiffs' attorney so Plaintiffs may
review the documents and determine whether any confidential
information should be withheld prior to handing the documents
over to Defendant's attorney.
response, Defendant claims the subpoenas are relevant because
Plaintiffs have “put their qualifications squarely in
controversy by relying on their employment history, both in
their Complaint as well as their non-retained expert witness
disclosure.” Defendant further argues Plaintiffs have
offered no authority to indicate these documents are
privileged and therefore not subject to discovery.
have wide latitude in deciding motions to quash civil
non-party subpoenas. Enterprise Holdings, Inc., v.
McKinnon, 4:14MC00516 AGF, 2014 WL 5421224, at *1 (E.D.
Mo. Oct. 23, 2014). Federal Rule of Civil Procedure 26(b)(1)
provides in relevant part:
Parties may obtain discovery regarding 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 ...