Opinion
05 Civ. 6992 (RCC).
August 1, 2006
MEMORANDUM ORDER
Plaintiff Austin During ("During") has brought an employment discrimination action against Defendants City University of New York ("CUNY"), et al., alleging a pattern of mistreatment including CUNY's fabrication of information in During's performance evaluations. CUNY, in turn, claims that During's employment attendance has been sporadic and marred by frequent, unexplained absences. CUNY learned that During simultaneously held another job at Columbia University ("Columbia") and requested to serve Columbia with a subpoena duces tecum seeking records relating to During's employment there. This case presents the question of whether any part of During's employment records at Columbia is relevant under Rule 26 of the Federal Rules of Civil Procedure in an action where an employer's assertion that the employee's conduct and alleged absence from work is at issue. Magistrate Judge Ronald L. Ellis held in his opinion and order dated March 9, 200 ("Order") that the requested records were irrelevant in their entirety and denied the request for the subpoena. For the following reasons, the Order is REVERSED.
I. BACKGROUND
During commenced this action in 2005, alleging employment discrimination, hostile workplace environment, and retaliation under federal law and New York state law, stemming from his employment with The City College of New York ("City College"), a senior college in the CUNY system. (Am. Compl. ¶ 1.) In April 2004, During began a one-year probationary term as Principal Custodial Supervisor on the night shift, with the understanding that successful completion of the term would lead to promotion to the permanent position. (Id. ¶ 36.)
During claims that CUNY — along with the individual employees named in the complaint — issued discriminatory performance reviews, "falsely accusing plaintiff of poor performance or alleged misconduct," with the goal of undermining During's ascent to the permanent position. (Id. ¶ 37.) CUNY denies these allegations and alleges that During had a poor attendance record with frequent, unexplained absences and even an instance where During reported to work, but then left campus. (See Answer ¶ 37; see also Defs.' Objection to Mag. J. Ellis's Op. and Order 7.) These problems, CUNY alleges, are significant because the Principal Custodial Supervisor is unsupervised and has the freedom to roam the campus at night. (Defs.' Objection 7.)
In the course of a prior litigation, CUNY learned that During was employed at Columbia since the 1990's. (During Dep. 204:11-17, Oct. 17, 2003.) During's part-time work at Columbia "until sometime in 2004" raises the possibility that he was simultaneously employed at CUNY and Columbia during his probationary term as Principal Custodial Supervisor. (See Defs.' Letter-Mot. for Subpoena 2.)
During brought an action against CUNY in October 2001, alleging employment discrimination from 1984 through 2002. CUNY's motion for summary judgment was granted. See generally During v. City Univ. of N.Y. and City Coll., No. 01 Civ. 9584 (BSJ), 2005 U.S. Dist. LEXIS 20405, at *1 (S.D.N.Y. Sept. 19, 2005).
CUNY's efforts to subpoena During's employment records at Columbia are the subject of this discovery dispute. The Court, consistent with 28 U.S.C. § 636(b)(1)(A), referred this case to Judge Ellis to rule on pre-trial discovery issues. CUNY initially subpoenaed Columbia asking for Columbia's entire personnel file on During; Judge Ellis quashed this subpoena. After attempts to reach a compromise failed, CUNY requested a narrower subpoena duces tecum ("Subpoena") concerning seven different categories of documents ("Columbia Records"). The Columbia Records include: (1) the most recent date of During's employment with Columbia; (2) why During is no longer employed at Columbia; (3) positions held; (4) work performance, including all formal and informal evaluations; (5) work schedule; (6) overtime work; and (7) dates he did not attend work, including any reasons given for such absences. During v. City Univ. of N.Y., No. 05 Civ. 6992 (RCC) (RLE), 2006 WL 618764, at *1 (S.D.N.Y. Mar. 9, 2006). During objected. Judge Ellis issued an Order denying the Subpoena. Id. Pursuant to Rule 72(a), of the Federal Rules of Civil Procedure, CUNY filed a timely objection seeking review from the Court.
II. DISCUSSION
A reviewing court should only set aside or modify a magistrate judge's pre-trial nondispositive ruling when it is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). A ruling is "clearly erroneous" when the reviewing court, on the entire evidence, is left "with the definite and firm conviction that a mistake has been committed." Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993). An order is "contrary to law" when it "fails to apply or misapplies relevant statutes, case law or rules of procedure." In re Natural Gas Commodities Litig., 235 F.R.D. 241, 244 (S.D.N.Y. 2006) (citation and internal quotations omitted). In sum, magistrate judges have broad discretion in resolving nondispositive discovery issues, so a party seeking to overturn a discovery order bears a heavy burden. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525-26 (2d Cir. 1990) (setting forth such a burden in the context of discovery sanctions).
Notwithstanding this broad discretion, the lower court's wholesale rejection of the Subpoena constitutes clear error. Subpoenas issued under Rule 45 of the Federal Rules of Civil Procedure are subject to Rule 26(b)(1)'s overriding relevance requirement. See Eisemann v. Greene, No. 97 Civ. 6094 (JSR), 1998 WL 164821, at *2 (S.D.N.Y. Apr. 8, 1998) (quashing a subpoena on the grounds that it requested irrelevant information), rev'd on other grounds, 204 F.3d 393 (2d Cir. 2000); see also Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998) ("[Subpoenas are] subject to the general relevance[e] standard applicable to discovery under Fed.R.Civ.P. 26(b)(1)."). Rule 26(b)(1) allows for potential discovery of matters if they are "relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Only if a matter is relevant and potentially discoverable must a court then consider whether additional Rule 26 limitations on discovery apply. Here, the potentially applicable limitation is whether, pursuant to Rule 26(b)(2) and Rule 26(c), otherwise relevant matters would be unduly burdensome to produce. The relevance and undue-burden inquiries, then, are two distinct steps. The Order, however, concluded that the Columbia Records were irrelevant, and then proceeded — without holding in the alternative — to weigh the irrelevance of these materials against During's privacy interests. The lower court clearly erred in evaluating the threshold relevance issue and also clearly erred in overstating the relative weight of During's privacy interests. The Court addresses each step in turn.
In determining what discovery would be unduly burdensome, courts appear to treat Rule 26(b)(2) and 26(c)'s considerations as highly similar, if not identical. See, e.g., In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69-70 (2d Cir. 2003) (commenting on the similarity of Rule 26(b)(2) and Rule 26(c) in allowing district courts broad discretion to manage discovery).
A. Relevance
"Parties may obtain discovery regarding any matter . . . that is relevant to the claim or defense of any party" and such information "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The Second Circuit has recognized that Rule 26 relevance is an "obviously broad rule" that is "liberally construed." Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). Discovery is relevant if there is "any possibility that the information sought may be relevant to the subject matter of the action." Goodyear Tire Rubber Co. v. Kirk's Tire Auto Servicenter of Haverstraw, Inc., No. 02 Civ. 0504 (RCC), 2003 WL 22110281, at *5 (S.D.N.Y. Sept. 10, 2003) (citing Westhemco Ltd. v. N.H. Ins. Co., 82 F.R.D. 702, 709 (S.D.N.Y. 1979)); cf. Favale v. Roman Catholic Diocese of Bridgeport, 233 F.R.D. 243, 246 (D. Conn. 2005) ("[Information is relevant if] there is any possibility that the information sought may be relevant to the claim or defense of any party.") (citation and internal quotations omitted).
The relevance of the Columbia Records is apparent when analyzing the parties' specific factual allegations in the context of the standard burden-shifting analysis used in employment-discrimination claims. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (using this framework in the context of racial discrimination in a failure-to-hire case). If the plaintiff establishes a prima facie case of discrimination, the employer then has the burden both to articulate a legitimate reason for the adverse employment and "to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the employer discharges its evidentiary burden here, the burden shifts back to the plaintiff to show that the employer's legitimate reason is actually a pretext for discriminatory or retaliatory motives. McDonnell Douglas, 411 U.S. at 805.
Under this burden-shifting standard, at least some portion of the Columbia Records is clearly relevant. CUNY has the burden of producing evidentiary proof of the facts underlying its proffered reasons for During's alleged mistreatment — namely, poor performance and poor attendance. Thus, any information that may reasonably bear on During's performance or attendance goes to discharging CUNY's evidentiary burden and is therefore relevant and will similarly tend to affect During's subsequent burden of showing pretext. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993) ("Proving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination."). Proof of poor attendance is highly relevant to showing whether CUNY's allegations of poor performance are legitimate and not pretextual.
The question, then, is whether there is any possibility that the Columbia Records may reasonably bear on the poor attendance issue. There is. The Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000), unanimously held that a trier of fact may permissibly "infer the ultimate fact of discrimination from the falsity of the employer's explanation." The Columbia Records have probative value in making CUNY's assertions of poor attendance more or less credible. These records may show, for example, that, on a particular day. During's Columbia shift overlapped with this CUNY shift. If both parties dispute whether During was absent on this particular day, the presence of overlapping shifts would provide an apparent explanation for During's alleged absence. This explanation would tend to corroborate CUNY's account and is relevant. Alternatively, a Columbia employee might be able to testify that During really was at Columbia (and not CUNY) at a given point in time; work schedules that could lead to such discovery satisfy Rule 26(b)(1)'s requirement that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The lower court's finding that the Columbia Records are irrelevant in their entirety is clearly erroneous in light of Rule 26's generous standard for relevance and the possibility that the records may reasonably bear on the poor-performance and poor-attendance issues.
To say that the lower court clearly erred in barring all of the records is not to say that the lower court clearly erred in barring any of the records. This Court now addresses the relevance of the seven categories of requested documents to examine whether there is clear error:
1. The most recent date of During's employment with Columbia. CUNY's theory about overlapping shifts depends on whether During was simultaneously employed with Columbia during his probationary period as Principal Custodial Supervisor. This question may be resolved with knowledge of During's dates of employment with Columbia. The lower court clearly erred in finding this information irrelevant.
2. Why During is no longer employed at Columbia. The lower court clearly erred in barring this information. Such information has a reasonable possibility of indicating the extent to which recent poor attendance or recent poor performance may have been factors leading to the end of During's employment with Columbia.
3. Positions held. CUNY has not suggested any relationship between its asserted poor-attendance theory and any specific positions that During would have held at Columbia. Judge Ellis did not clearly err in finding this information irrelevant.
4. Work performance, including all formal and informal evaluations. The lower court clearly erred in finding these records irrelevant, as these records have a reasonable possibility of commenting on During's performance and attendance records which are directly at issue in this matter.
5. Work schedule. During's work schedule is highly probative regarding CUNY's theory of overlapping shifts. The lower court clearly erred in finding this category of records irrelevant for the period when During was employed both at Columbia and at CUNY during his probationary term as Principal Custodial Supervisor.
6. Overtime work. For the same reasons as those given above in (5), the lower court clearly erred in finding this category of records irrelevant for the period when During was employed both at Columbia and at CUNY during his probationary term as Principal Custodial Supervisor.
7. Dates During did not attend work, including any reasons given for such absences. During's absences for the period when During was employed both at Columbia and as Principal Custodial Supervisor are highly probative regarding CUNY's theory of unexplained absences. The reasons given for such absences are also clearly relevant. These reasons may provide explanations for why During also failed to attend his CUNY job on a particular day, thereby corroborating CUNY's account of During's attendance records. Proffered reasons for such absences may also be relevant to CUNY's defense as they may demonstrate a pattern of excuses or lack thereof. The lower court clearly erred in finding the information above irrelevant.
B. Undue Burden Analysis and Weighing of Privacy Interests
Even if the information sought is relevant, courts have the authority to forbid or to alter discovery that is unduly burdensome. Under both Rule 26(b)(2)(iii) and Rule 26(c), courts have conceived of undue-burden analysis as a "proportionality test." Zubulake v. UBS Warburg, 217 F.R.D. 309, 316 (S.D.N.Y. 2003). Because "[t]he trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery," Rule 26 confers broad discretion to weigh discovery matters. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (footnote omitted). Similarly, a magistrate judge deciding discovery disputes is entitled to "broad discretion, which will be overruled only if abused." Dubin v. E.F. Hutton Group, Inc., 125 F.R.D. 372, 373-74 (S.D.N.Y. 1989).
The Order is sufficiently problematic despite such deference. It provides the following explanation, which appears to constitute an interpretation of issues implied or stated in Rule 26(b)(2)(iii) and Rule 26(c): "Whether During's employment at Columbia affected his attendance and availability at CUNY is not relevant to this case. The Court finds that CUNY's right to obtain [the] Columbia records is outweighed by During's assertion of intrusion into his privacy interests. . . ." During, 2006 WL 618764, at *2.
The lower court is not explicit about the weight it afforded to During's privacy interests. These interests — however weighty the lower court believed them to be — are not significant. "A litigant himself must reasonably anticipate that his personal matters will be disclosed, while a non-party having no stake in the litigation retains a greater expectation of privacy." Burka v. N.Y. City Transit Auth., 110 F.R.D. 660, 665 (S.D.N.Y. 1986). During, as a litigant here, is in the same position and should reasonably expect that matters relating to his employment performance and attendance will be disclosed. Because During's privacy interests are slight, the lower court's undue-burden analysis is clearly erroneous.
Additionally, even when valid privacy interests exist, the proper remedy tends to be the use of an appropriate protective order under Rule 26(c), not the barring of discovery altogether.See Seattle Times, 467 U.S. at 32 (approving of protective orders even over First Amendment objections). The possibility of such a protective order adequately addresses During's privacy interests here. Indeed, as CUNY has already consented to accept conditions on its access to the Columbia Records (see Defs.' Objection 13), the Court is confident that the parties can reach an agreement on this issue.
III. CONCLUSION
For the foregoing reasons, the Court REVERSES the Order. The Court shall allow, over Plaintiff's objections, production of items reflecting the following:
1. The most recent date of During's employment with Columbia.
2. Why During is no longer employed at Columbia.
3. Work performance, including all formal and informal evaluations for the time During was employed at Columbia.
4. Work schedule for the period when During was employed both at Columbia and at CUNY during his probationary term as Principal Custodial Supervisor.
5. Overtime work for the period when During was employed both at Columbia and at CUNY during his probationary term as Principal Custodial Supervisor.
6. Dates During did not attend work and the reasons given for such absences for the period when During was employed at Columbia.
The parties shall have until September 1, 2006 to complete discovery consistent with this memorandum and order. The parties shall appear before the Court on Friday, September 1, 2006 at 9:30 am for a status conference. The conference scheduled for Friday, August 4, 2006 is adjourned.
So Ordered.