Uehling v. Millennium Laboratories, Inc. et al

MOTION to Quash and/or Modify Millennium's Subpoena Duces Tecum to Non-Party Mallinckrodt U.S. Holdings, Inc.

S.D. Cal.September 19, 2017

1 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James R. Lance, Esq. (SBN 147173) jlance@noonanlance.com Micaela P. Banach, Esq. (SBN 226656) mbanach@noonanlance.com Genevieve M. Ruch, Esq. (SBN 285722) gruch@noonanlance.com NOONAN LANCE BOYER & BANACH LLP 701 Island Avenue, Suite 400 San Diego, California 92101 Telephone: (619) 780-0880 Facsimile: (619) 780-0877 Joel M. Androphy (Pro Hac Vice) jandrophy@bafirm.com Samuel E. Doran (Pro Hac Vice) sdoran@bafirm.com Sarah Frazier (Pro Hac Vice) sfrazier@bafirm.com BERG & ANDROPHY 3704 Travis Street Houston, Texas 77002 Telephone: (713) 529-5622 Attorneys for Plaintiff RYAN UEHLING UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA RYAN UEHLING, Plaintiff, v. MILLENNIUM LABORATORIES, INC., et al. Defendant. Case No.: 3:16-CV-02812-L-MDD PLAINTIFF RYAN UEHLING’S MOTION TO QUASH AND/OR MODIFY MILLENNIUM’S SUBPOENA DUCES TECUM TO NON-PARTY MALLINCKRODT U.S. HOLDINGS, INC. Judge: Hon. M. James Lorenz Magistrate Judge: Hon. Mitchell D. Dembin Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1279 Page 1 of 11 2 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Ryan Uehling (“Plaintiff”) respectfully moves the Court to quash or modify Defendant Millennium Laboratories’ subpoena duces tecum served to Mallinckrodt U.S. Holdings, Inc. (“Mallinckrodt”). I. INTRODUCTION This is a whistleblower retaliation case in which Plaintiff alleges that he was wrongfully terminated from his job with Millennium for raising issues about the legality of Millennium’s business practices. Plaintiff now works for a new company called Mallinckrodt. Millennium has served Mallinckrodt with a subpoena requesting the following documents: All employment records in your possession, custody and control pertaining to the above-named individual, including, but not limited to, job applications; job inquiries; resumes and/or other records describing prior employment and work history; time and payroll records; records reflecting wages, salary, commissions, and/or other forms of remuneration earned; records reflecting employee benefits; performance reviews and/or evaluations; disciplinary records and/or warnings; attendance records; vacation, leave or workers compensation records; applicable job and/or position descriptions; and termination and/or separation records. -Including all records while the above referenced individual was in the employ of Questcor Pharmaceuticals, Inc. FOR DATES OF: ANY AND ALL See Ex. 1, Subpoena to Produce Documents, Information, or Objects or To Permit Inspection of Premises in a Civil Action. Plaintiff does not object to the production of his earnings records at Mallinckrodt, which are relevant to his claims for damages in this case.1 However, 1 Plaintiff has already agreed to and will produce his tax returns (subject to confidentiality/ protective order) for all of his post-termination earnings. A subpoena to Mallinckrodt is therefore duplicative and unnecessary, but Plaintiff will not object if Millennium wants to verify the information from the employer directly. However, Defendant has not willing to narrow the scope Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1280 Page 2 of 11 3 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff respectfully asks this Court to quash the remainder of the subpoena. Millennium’s subpoena to Mallinckrodt amounts to a blanket request for five years of Plaintiff’s employee and personnel files, for “any and all dates,” because it is not narrowly tailored to any issue relevant in this case, is unduly burdensome, and invades Plaintiff’s right to privacy. If Mallinckrodt were compelled to comply with this request, it would impose an undue burden, violate Plaintiff’s constitutionally protected privacy interests in employment records entirely unrelated to the action at hand, and unnecessarily broaden the scope and cost of discovery far beyond what is relevant to the issues in the case. Furthermore, Millennium has not provided any sufficient reason for why the information requested cannot be obtained through less-intrusive means, such as through an interrogatory, written deposition or deposition. Indeed, discovery has been and will be conducted on the issue of Plaintiff’s subsequent employment through Plaintiff himself. As set forth above, Plaintiff does not object to Mallinckrodt’s production of his earnings records. However, for reasons set forth more fully below, Plaintiff moves the court to quash the subpoena, or in the alternative, modify the undefined and overly broad scope of the subpoena. II. LEGAL AUTHORITY FOR MOTION TO QUASH Plaintiff has standing to challenge Millennium’s subpoena served on Mallinckrodt for all of Plaintiff’s employment records. The subpoena requests the Plaintiff’s employment records from a non-party and the Plaintiff has a privacy right and personal interest in his employment and personnel records. See, e.g., Luck v. University of San Diego, 2014 WL 7111950, at *2 (S.D. Cal. 2014) (“A party that is not the recipient of the subpoena has standing to challenge the subpoena where its challenge asserts that the information is privileged or protected to itself.”). of the subpoena in any regard. Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1281 Page 3 of 11 4 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Additionally, Plaintiff, as a party, has grounds to challenge the third-party subpoena and seek a protective order for the information requested pursuant to Rule 26 of the Federal Rules of Civil Procedure, which provides, in pertinent part, that: “Upon motion by a party or by the person from whom discovery is sought …the court … may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). In sum, Plaintiff has standing to challenge Millennium’s subpoena under Federal Rule 45 and Federal Rule 26. Because the subpoena is overly broad, would impose an undue burden, and seeks to obtain privileged and private information pertaining to wholly unrelated Plaintiff’s employment records, this Court must issue a protective order and quash the subpoena, or in the alternative, modify the time and scope of the subpoena. III. ARGUMENT A. The Court Must Grant the Motion to Quash the Subpoena Because the Information Sought is Overbroad and Not Narrowly Tailored to the Issues in the Case District courts have wide discretion in resolving discovery disputes. Rule 26(b)(1) allows discovery into any matter that is not privileged and is relevant to the claim of or defense of any party. Courts have liberally construed Rule 26 to aid parties in obtaining the “evidence necessary to evaluate and resolve their dispute.” Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005). While “irrelevance” is not among the litany of enumerated reasons for quashing a subpoena found in Rule 45, courts have incorporated relevance as a factor when determining motions to quash a subpoena. Moon, 232 F.R.D. 633, at 637 (internal citations omitted). / / / Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1282 Page 4 of 11 5 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Specifically, under Rule 45(c)(3)(a), an evaluation of undue burden requires the court to weigh the burden of the subpoenaed party against the value of the information to the serving party.” Id. To this end, the court considers a number of factors such as “relevance, the need of the party for the documents, the time period covered by it, [and] the particularity with which the documents are described and the burden imposed.” Id. Here, the scope of the records sought is overbroad, vague, and unduly burdensome. There is no specificity in the documents requested (“all” employment records) over an undefined period of time (“any and all” dates). Plaintiff has worked at Mallinckrodt and its predecessor for over five years. The language of the subpoena is not narrowly tailored to any issue of relevance in this case. This case is about why Plaintiff was terminated from Millennium. His personnel file at his current employer will not answer that question. On this point of time and scope, Luck v. University of San Diego, 2014 WL 7111950 (S.D. Cal. Oct. 3 2014) is instructive. In Luck, the defendant issued subpoenas to the plaintiff’s former employers seeking all employment files and records. The court sustained the plaintiff’s overbreadth objection, holding that USD’s subpoena for “any and all” personnel files “including but not limited to” various categories was entirely too overbroad and struck that language. Luck, 2014 WL 7111950, at *4. Millennium’s subpoena uses the exact same vague and overbroad language. The Court in Luck emphasized that the request must be “narrowly tailored to target information bearing on the parties’ claims and defenses in this action.” Id. Plaintiff respectfully asks this Court to quash the subpoena on the same grounds. In the alternative, in accordance with Luck, Plaintiff respectfully asks the Court to strike the overbroad terms and order the defendants to modify the subpoena’s scope and time to narrowly focus on documents relevant to this case. / / / Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1283 Page 5 of 11 6 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Through meet and confer discussions, Defendant contends that Plaintiff’s employee and personnel files are relevant for three reasons: (1) Plaintiff’s duty to mitigate damages, (2) Plaintiff’s credibility, and (3) the reasons for his separation from Millennium. First, Plaintiff recognizes his duty to mitigate damages. He diligently sought and obtained new employment with Questcor (now Mallinckrodt) less than a year after his termination from Millennium. Plaintiff has no objection to the production of his earnings records so that Defendant can conduct discovery on his damages claims. Indeed, Plaintiff has agreed to produce all of his earnings records post- termination from Millennium. Defendant can also depose Plaintiff to ask him about his efforts to find new employment, the nature of his new employment, and income earned. However, issuing a subpoena for all of Plaintiff’s employment records at his new company without limitation is not narrowly tailored to discovery on the issue of mitigation. Second, it is unclear how Plaintiff’s personnel file at his new employer would bear on his credibility in this case and the reasons why he was terminated from Millennium. In meet and confer discussions, Defendant is relying on the case of Kellgren v. Petco Animal Supplies, Inc., 2015 WL 11237636 (S.D. Cal. Apr. 10, 2015). In Kellgren, the court permitted discovery into the records held by a plaintiff’s subsequent employer because it related directly to the unique procedural and meritorious posture of a putative class action suit under the Fair Labor Standards Act. At issue was whether the plaintiff was due unpaid wages while employed at Petco. Petco contended that it did not have any records showing the plaintiff’s hours worked or duties performed because the plaintiff was considered an exempt employee. Therefore, to the extent the subsequent employer’s file contained information about the nature, scope and hours of his employment at Petco, it would / / / Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1284 Page 6 of 11 7 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be relevant. The subpoena also sought information that was not otherwise available from Petco’s own records. The Kellgren decision is wholly distinguishable and therefore inapplicable here. This is not a class action. Plaintiff was not an hourly worker whose credibility about the nature and number of hours worked is at issue; Plaintiff was a highly paid executive at Millennium. Unlike Kellgren, Defendant does not and cannot claim that it lacks any employee records for Plaintiff that “may shed light on the nature and type of work he performed.” Kellgren, at *3. This is not a case where the Defendant is seeking information not otherwise available to it through other sources. Defendant has access to supervisors, managers and documentary evidence of Plaintiff’s job duties, hours and work performance. Defendant has access to its claimed reason for terminating Plaintiff. Plaintiff can and will produce his post- termination earnings records and can be deposed about any of the issues related to mitigation. And, unlike Kellgren, there is no unique “credibility” issue here that is not present in any lawsuit. Id. at *4. Defendant’s subpoena for records relating to Plaintiff’s performance at Mallinckrodt have no bearing on this case. It does not tend to prove or disprove why Plaintiff was fired from Millennium. It is nothing more than a fishing expedition and an attempt to get improper character evidence. “District courts need not condone the use of discovery to engage in ‘fishing expeditions.’” Rivera v. NIBCO, 364 F.3d 1057, 1079 (9th Cir. 2004). Moreover, Defendant’s subpoena is so overbroad that it seeks Plaintiff’s “termination and/or separation records” from Mallinckrodt, but Defendant is well aware through discovery that Plaintiff is still employed there. Defendant will also presumably ask Plaintiff about his current employment status at his deposition. This is simply an example of how boilerplate the subpoena language is, having been drafted without regard to the facts of this case. See, Luck, 2014 WL 711950, at *7 Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1285 Page 7 of 11 8 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (finding the phrase “separation or termination records” vague and overbroad without specifying the extent to which the records were relevant to the plaintiff’s claims). See, Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251 (S.D. Ohio 2011) (quashing subpoena for former and subsequent employment records as overbroad and irrelevant where defendants have information showing the duties/responsibilities/hours of plaintiffs and it is unclear what, if any, additional information would be obtained by discovering how plaintiffs described themselves in resumes or job applications); Richards v. Convergys Corp., 2007 WL 474012, at *4 (D. Utah 2007) (granting plaintiff’s motion to quash, in part, rejecting the broad scope of the defendants’ “blanket request for all documents regarding [Plaintiff’s] employment”); Barrington v. Mortage IT, Inc., 2007 WL 4370647, at * 2 (S.D. Fla. Dec. 10, 2007) (same). The subpoena also presents issues of annoyance, embarrassment, oppression and undue burden on Plaintiff as it relates to his current employer. Courts have acknowledged that seeking discovery from a current employer is a sensitive issue and could have a negative effect on the employment relationship. Richards, supra, at *3. Therefore, in addition to all of the reasons cited above, the Court should quash the subpoena because the information sought about Plaintiff’s subsequent employment is available from Plaintiff himself. Alternatively, the Court should narrowly tailor the subpoena to the issue of earnings records only to avoid unnecessary harm to Plaintiff in his current employment. B. The Court Must Grant the Motion to Quash the Subpoenas Because The Requests Violate Plaintiff’s Right to Privacy The subpoena should also be quashed in order to fully preserve Plaintiff’s right to privacy in his employment records. “Under California law, personnel records of employees are protected by California's constitutional right of privacy.” Grobee v. Correction Corporations of America, 2014 WL 229266, at *2 (S.D. Cal. Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1286 Page 8 of 11 9 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jan. 17, 2014). District Courts within the Ninth Circuit have recognized the employee’s reasonable expectation of privacy under both the U.S. and California Constitution in their employee personnel records. See e.g., Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1990) (recognizing that employee personnel files are not absolutely privileged but are generally confidential); Blotzer v. L-3 Communications Corp., 287 F.R.D. 507, 508 (D. Ariz. 2012) (“Personnel files may contain information that is both private and irrelevant to the case, therefore special care must be taken before personnel files are turned over to an adverse party.”). For this reason, courts have traditionally exercised discretion when granting request for employment information. “A finding of relevancy, alone, is not enough to justify compelled disclosure of private information.” Grobee, 2014 WL 229266, at *2 Courts must carefully balance the privacy interests of the plaintiff against the litigant’s need for the particular documents. Id. (internal citation omitted). In explaining this balancing test, the court in Grobee concluded, “even if the balance weighs in favor of disclosure, the scope of disclosure must be narrowly circumscribed.” Id Here, Defendant cannot rationalize its need for the entirety of Plaintiff’s personnel records over a five year time period with his new employer, especially since there is no specific purpose in which the documents relate to the claims or defenses in this case. Any information about Plaintiff’s subsequent employment and earnings can be learned through other sources. The Court should reject Defendant’s overbroad request for the private information contained in Plaintiff’s confidential personnel records. IV. CONCLUSION The subpoena at issue is overbroad and not narrowly tailored to the issues in this case. The records sought are not reasonably calculated to lead to the discovery of admissible evidence, would result in serious violations to Plaintiff’s right to Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1287 Page 9 of 11 10 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 privacy, and cause undue burden, embarrassment and annoyance to Plaintiff and his current employer. For these reasons, Plaintiff respectfully requests that this Court quash the subpoena issued to Mallinckrodt in full, or in the alternative, limit the scope of the subpoena to Plaintiff’s earnings records only. Dated: September 19, 2017 NOONAN LANCE BOYER & BANACH LLP By: /s/Micaela P. Banach James R. Lance Micaela P. Banach Genevieve M. Ruch Attorneys for Plaintiff Ryan Uehling Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1288 Page 10 of 11 11 {02120736} Case No. 16-CV-02812-L-NLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Uehling v. Millennium Laboratories, Inc., et al. U.S.D.C. Southern District of California Case No. 3:16-CV-02812-L-MDD I, the undersigned, declare: That I am, and was at the time of service of the papers herein referred to, over the age of eighteen years, and not a party to the action; and I am employed in the County of San Diego, California. My business address is 701 Island Avenue, Suite 400, San Diego, California 92101. On September 19, 2017, at San Diego, California, I served the following document(s) described as PLAINTIFF RYAN UEHLING’S MOTION TO QUASH AND/OR MODIFY MILLENNIUM’S SUBPOENA DUCES TECUM TO NON-PARTY MALLINCKRODT U.S. HOLDINGS, INC. on the parties in said action as follows: OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Spencer C. Skeen (spencer.skeen@ogletreedeakins.com) Daniel Kanter (Daniel.kanter@ogletreedeakins.com) Francis L. Tobin (frank.tobin@ogletreedeakins.com) Jesse C. Ferrantella (jesse.ferrantella@ogletree.com) 4370 La Jolla Village Drive, Suite 990 San Diego, CA 92122 Telephone: (858) 652-3100 Facsimile: (858) 652-3101 Attorneys for Defendant Millennium Laboratories, Inc.  ELECTRONIC TRANSMISSION: I filed the foregoing document with the Clerk of Court for the U.S. District Court, using the Electronic Case Filing ("ECF") system of the Court. The attorney listed above has consented to receive service by electronic means and is registered with the Court's ECF system and was served a "Notice of Electronic Filing" sent by ECF system. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am employed in the office of a member of the bar of this Court at whose direction the service was made Executed on September 19, 2017 at San Diego, California. /s/Micaela P. Banach Micaela P. Banach Case 3:16-cv-02812-L-MDD Document 76 Filed 09/19/17 PageID.1289 Page 11 of 11