United States District Court, M.D. Florida, Fort Myers Division
RICHARD C. REED, JR., Plaintiff,
FORNEY INDUSTRIES, INC., Defendant.
MIRANDO, United States Magistrate Judge.
matter comes before the Court upon review of Plaintiff's
Motion for Protective Order on Defendant's Notice of
Service of Subpoena Duces Tecum (Doc. 27) and the Agreed
Motion to Extend Trial and Pre-Trial Deadlines (Doc. 29).
Defendant opposes Plaintiff's motion for a protective
order. Doc. 28.
25, 2017, this case was removed from the Circuit Court for
the Twentieth Judicial Circuit in and for Collier County,
Florida. Doc. 1. Defendant Forney Industries, Inc.
(“Forney”) is a family-owned corporation selling
tool, equipment and accessory products. Doc. 20 ¶ 9.
Plaintiff was an employee of Forney from September 2003 to
December 2015. Id. ¶¶ 10, 17. Plaintiff
alleges he could not work from July 2015 to August 2015
because he suffered a knee injury and had knee surgery in
July 2015. Id. ¶¶ 13-15. Plaintiff claims
that after he returned to work in August 2015, Forney
attempted to find fault with his work performance in efforts
to terminate him. Id. ¶ 17. In December 2015,
Forney terminated Plaintiff's employment, although he
allegedly performed well at work. Id. ¶¶
19-22. On May 25, 2017, Plaintiff filed a Complaint seeking
damages under the Florida Civil Rights Act, Fla. Stat.
§§ 760.01 et seq. Doc. 1. Subsequently,
Plaintiff filed an Amended Complaint, adding two counts of
disability discrimination under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§
12111 et seq., as amended, and age discrimination
under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et
seq. Doc. 20.
September 19, 2017, Forney served a subpoena on
Plaintiff's current employer, K-T Industries, Inc.
(“K-T Industries”), commanding K-T industries to
produce “[a]ny and all human resources/personnel
records in [its] possession regarding [Plaintiff, ] including
applications for employment; performance evaluations; payroll
records; time cards; absentee records; employment physicals;
and Workers' Compensation claims. In other words,
EVERYTHING in [K-T Industries'] possession regarding
[Plaintiff.]” Doc. 27-1. The subpoena required K-T
Industries to produce them at 10:00 a.m. on October 19, 2017.
Id. at 1. Forney sent a notice of the subpoena to
Plaintiff's counsel on October 24, 2017. Doc. 27-2.
November 30, 2017, Plaintiff filed the present motion,
seeking a protective order concerning Forney's subpoena
to K-T Industries. Doc. 27. Plaintiff alleges he objected to
the subpoena based on relevance and other grounds, such as
annoyance, embarrassment and oppression. Id. at 2.
Forney disagreed with the objections, but agreed to notify
K-T Industries not to produce any responsive documents until
the parties could reach an agreement. Id.
argues he provided Forney with copies of his tax returns and
W-2s, including his records of earning from K-T industries.
Id. He acknowledges these documents are relevant to
the issues of his damages and mitigation of damages.
Id. Nonetheless, Plaintiff asserts his payroll
records requested by Forney are not necessary because he
already provided his tax returns, W-2s and paystubs following
the period after Forney's termination of his employment.
Id. Plaintiff further claims the requested
information concerning his medical condition is not relevant
because only his medical condition during the term of his
employment with Forney matters here. Id. at 2-3.
Thus, Plaintiff argues Forney's subpoena constitutes
annoyance, embarrassment and oppression because his
employment records of K-T Industries are not relevant to any
issue in this case, except for damages. Id. at 3.
Plaintiff asserts Forney is engaging in a fishing expedition,
and the discovery request is not proportional to the needs of
the case. Id. Alternatively, Plaintiff asks the
Court to find less intrusive means to obtain the requested
information. Id. Forney responds all of the
requested documents are relevant and discoverable. Doc. 28 at
Court finds the requested documents are relevant and
discoverable. Rule 26(b)(1) of the Federal Rules of Civil
Procedure permits 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 likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
may object to a discovery request by moving for a protective
order pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure. Fed.R.Civ.P. 26(c). Rule 26(c) provides that
“a party or any person” may move for a protective
order to protect a person from “annoyance,
embarrassment, oppression, or undue burden or expense.”
Fed.R.Civ.P. 26(c). The court, upon a party showing good
cause, may issue a protective order including
“specifying terms, including time and place or the
allocation of expenses, for the disclosure or
discovery” and “forbidding the disclosure or
discovery.” Fed.R.Civ.P. 26(c). “Rule 26(c) gives
the district court discretionary power to fashion a
protective order.” Farnsworth v. Procter &
Gamble, Co., 758 F.2d 1545, 1548 (11th Cir. 1985).
resisting discovery must establish “lack of relevancy
or undue burden in supplying the requested
information.” Gober v. City of Leesburg, 197
F.R.D. 519, 521 (M.D. Fla. 2000) (citation omitted). The
resisting party must show that the requested discovery does
not come within the scope of relevance within Rule 26(b)(1)
or is of marginal relevance that the potential harm caused by
discovery outweighs the presumption in favor of broad
disclosure. Id. (citation and internal quotation
Plaintiff does not provide any legal authority to show that
the requested information lacks relevancy or imposes undue
burden on K-T Industries. Doc. 27. In contrast, Forney
supplies two cases from this district in which courts found
an employee's personal records from a current employer
are relevant and discoverable when the records pertain to the
employee's claim of damages and mitigation of those
damages against a previous employer. Doc. 28 at 5-6;
Glambrone v. Kearney & Co., P.C., No.
8:16-cv-2083-T-30AAS, 2017 WL 2538705, at *1 (M.D. Fla. June
12, 2017); U.S. Equal Emp't Opportunity Comm'n,
v. Autozone, Inc., No. 3:06-cv-00862-J-32MCR (M.D. Fla.
Dec. 18, 2007). Similarly, Plaintiff here admits the
requested pay records from K-T Industries are relevant to the
issue of Plaintiff's damages and mitigation of damages.
Doc. 27 at 2.
Plaintiff alleges he suffers damages, including emotional
pain and suffering, mental anguish, outrage and loss of
dignity, as a result of Forney's termination of his
employment. Doc. 20 ¶ 35. By seeking damages for
emotional distress, Plaintiff waived his privacy interest in
the documents sought. Glambrone, 2017 WL 2538705, at
*1; U.S. Equal Emp't Opportunity Comm'n, v.
Autozone, Inc., No. 3:06-cv-00862-J-32MCR, at 7 (M.D.
Fla. Dec. 18, 2007). Forney also is entitled to discover the
documents related to Plaintiff's mental conditions so
that Forney may determine the extent to which Plaintiff's
mental state is affected by his loss of employment.
Glambrone, 2017 WL 2538705, at *1; U.S. Equal
Emp't Opportunity Comm'n, v. Autozone, Inc., No.
3:06-cv-00862-J-32MCR, at 7 (M.D. Fla. Dec. 18, 2007).
Accordingly, the Court will deny Plaintiff's motion for a
protective order and direct K-T Industries to respond fully
to Forney's subpoena.
the parties jointly seek a ninety (90) extension of the
pending deadlines. Doc. 29. Pursuant to the Case Management
and Scheduling Order, the parties have until February 1, 2018
to complete discovery, February 14, 2018 to mediate and March
1, 2018 to file dispositive motions, and a trial term
commences on August 6, 2018. Doc. 19 at 1-2. Based on the
parties' representations, the Court finds good cause to
grant in part the requested extensions. Doc. 29. Given the
length of the requested extensions and the Court's heavy
caseload, however, the Court will extend the remaining
deadlines by sixty (60) days. In light of the extensions, the
Court expects the parties to exercise their diligence in
meeting the extended deadlines. The parties' ...