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Warnke v. CVS Corp.

February 23, 2010


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge



Plaintiff Robert Warnke ("Plaintiff" or "Warnke") commenced this action on January 30, 2009 against his former employer, Defendant CVS Corporation*fn1 ("Defendant" or "CVS"), alleging employment discrimination on the basis of age in violation of federal and New York State laws. Currently before this Court is Plaintiff's motion [DE 13] to quash subpoenas duces tecum served by Defendant on Plaintiff's three subsequent employers (collectively, the "Subpoenas"). See DE 13, Ex. 1. Each of the Subpoenas seeks "inspection and copying of the following documents . . . .":

Any and all documents relating to Robert Warnke's employment with [EMPLOYER] including but not limited to his employment application, his resume, his personnel file, payroll records and offer of employment. Mr. Warnke's social security number is XXX-XXXXXX and his date of birth is XX/XX/XXXX.*fn2 This information is to be used solely in connection with the search for the requested documents.

Id. For the following reasons, Plaintiff's Motion to Quash is GRANTED.


In the Subpoenas at issue here, Defendant seeks Plaintiff's employment records, including his employment application, resume, personnel file, payroll records and offer of employment, from three companies for which Plaintiff worked following his termination by Defendant -- Walgreen Co., d/b/a Walgreen's; Fire Island Water Taxi, Inc.; and Sagamore Yacht Club. Plaintiff currently works for Walgreen's and Fire Island Water Taxi.

A. Plaintiff's Standing To Oppose The Subpoena

As a threshold matter, it is undisputed that Plaintiff has standing to move to quash the non-party subpoenas. Generally, standing to quash a non-party subpoena exists where the plaintiff asserts a legitimate privacy interest in the information sought. See Ireh v. Nassau Univ. Med. Center, No. CV 06-09, 2008 WL 4283344, at *3 (E.D.N.Y. Sept. 17, 2008) (citations omitted); Mirkin v. Winston Res., LLC, No. 07 Civ. 02734, 2008 WL 4861840, at *1 (S.D.N.Y. Nov. 10, 2008) (citation omitted). Here, Plaintiff has a legitimate privacy interest in information regarding his subsequent employment and therefore has standing to bring the instant motion. See Mirkin, 2008 WL 4861840, at *1 (citing During v. City Univ. of N.Y., No. 05 Civ. 6992, 2006 WL 618764, at *1 (S.D.N.Y. Mar. 9, 2006), rev'd on other grounds, 2006 WL 2192843 (S.D.N.Y. Aug. 1, 2006)).

B. Relevance Of The Discovery Sought By The Subpoenas

A subpoena issued to a non-party pursuant to Rule 45 is "subject to Rule 26(b)(1)'s overriding relevance requirement." Ireh, 2008 WL 4283344, at *5 (quoting During, 2006 WL 2192843, at *2). Rule 26(b)(1) provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . ." Fed. R. Civ. P. 26(b)(1). "Relevance" under Rule 26 is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter 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); Barrett v. City of N.Y., 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the information sought "need not be admissible at trial to be discoverable"). However, "upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. . . ." During, 2006 WL 618764, at *1 (quoting Fed. R. Civ. P. 26(c)).

Plaintiff argues that the information requested in the Subpoenas is "neither relevant nor reasonably likely to lead to relevant evidence[,]" and the broad language contained in the Subpoenas "seems to indicate that the defendant is seeking documents related to something other than mitigation[,]" which, as Plaintiff concedes, would be relevant. DE 13. Plaintiff further asserts that the requested information is not relevant in light of the fact that Plaintiff has already produced copies of his income tax returns for the years 2005 through 2008 and copies of his 2009 pay stub from both of his current employers. Id. Finally, Plaintiff contends that, even if the requested information is deemed to be relevant, a protective order should be issued to shield plaintiff "from the 'annoyance, embarrassment [or] oppression' of having current employers made aware of the instant lawsuit[,]" which, Plaintiff claims, would "cause further damage to the prospects of his continued employment." Id.

Defendant, on the other hand, argues that the requested information constitutes discoverable material which is relevant to its mitigation defense. Specifically, Defendant contends that in addition to the documents Plaintiff has already produced, Defendant is entitled to (i) the statements Plaintiff made to subsequent employers as to the reason he was unemployed; (ii) the types of jobs Plaintiff has held since termination; (iii) the fringe benefits he received at each subsequent job; and (iv) the reasons, if any, Plaintiff ceased working at each subsequent job. DE 14. Finally, Defendant asserts that it is entitled "to obtain this information directly from the source of [Plaintiff's] subsequent jobs." Id. (citation omitted).

The Court disagrees with Defendant's argument that it is entitled to these categories of information as part of its mitigation defense. First, Defendant seeks discovery regarding "the statements plaintiff made to the subsequent employers as to the reason he was unemployed" [DE 14], which presumably refers to the request for Plaintiff's employment application contained in the Subpoenas. However, Defendant has not provided any case law to support its entitlement to Plaintiff's subsequent employment applications, and this Court ...

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