WESTERN DISTRICT OF WASHINGTON
8 RENARDO ROBERTSON, et al., CASE NO. C19-1618 RSM
9 Plaintiffs, ORDER
10 v.
WESTERN WASHINGTON, 12 Defendant. 13 15 This matter is before the Court on Defendant’s motion to compel the production of 16 records held by an attorney that previously represented Plaintiff on a different matter (“Motion 17 to Compel”). Dkt. #32. Plaintiff’s previous attorneys, Russell & Hill, PLLC (“R&H”), have 18 refused to comply with Defendant’s subpoena. R&H and Plaintiff oppose Defendant’s Motion 19 to Compel. For the following reasons, the Court grants the Motion. 21 In this action, Plaintiff brings claims of employment discrimination and retaliation, 22 wrongful termination, and negligent infliction of emotional distress. Dkt. #1 at ¶¶ 104–141. 23 Plaintiff seeks “actual, compensatory, economic, non-economic, special, general, and/or punitive 24 damages.” Id. at ¶ 141. Plaintiff also seeks recovery for emotional distress including pain and 1 suffering. Id. at p.18, ¶ B. As the Court specifically found in a prior order resolving a separate 2 discovery dispute, 3 Plaintiff alleges that towards the end of 2018 he experienced “extreme stress” because of the discrimination and retaliation and was instructed by his doctor to 4 “take several days off of work.” [Dkt. #1] at ¶ 48. At the same time, “Plaintiff began his therapy sessions for work stress, and he has been undergoing [] 5 treatment ever since.” Id. Plaintiff alleges that he had to again “take several more days off of work due to the extreme stress caused by the discrimination and 6 retaliation against him.” Id. at ¶ 71. The stress “became so overwhelming that he slipped into a downward spiral with depression, anxiety, and alcohol abuse and 7 had to undergo treatment for several weeks, per doctor’s note.” Id.
8 Dkt. #28 at 2. 9 Plaintiff was involved in an auto accident on November 19, 2017. The parties and R&H 10 all agree that the accident was unrelated to Plaintiff’s employment, that Plaintiff suffered some 11 damages, and that the matter was settled with the at-fault driver’s insurance company with a 12 settlement agreement. Defendant presumably does not know the identity of the insurance 13 company, the date the matter was resolved, the nature of Plaintiff’s damages, or the terms of 14 settlement. Plaintiff and R&H do not provide any of this information. 15 After Defendant learned of these events, Defendant issued a subpoena to R&H. 16 Defendant specifically sought: 17 non-privileged information relating to [Plaintiff]’s motor vehicle accident that took place on or about November 18, 2018,[1] including but not limited to: 18 (a) the settlement demand letter sent by your attorneys . . . seeking money 19 damages for injuries or losses arising out of the motor vehicle accident; and
20 (b) the settlement agreement [] executed as part of the settlement of those claims. 21 22 23
1 The parties agree the relevant accident occurred November 18, 2017, and that the subpoena’s 24 identification of “2018” was an error. 1 Dkt. #33 at 81. R&H accepted service of the subpoena and subsequently objected to the request. 2 R&H objected that the subpoena: (1) was “vague and ambiguous,”2 (2) sought “disclosure of 3 privileged or confidential information,”3 and sought “irrelevant documents.”4 Id. at 88–89. 4 Defendant reiterated, by email, that “[t]he subpoena seeks all non-privileged documents in your 5 possession . . . . including correspondence to insurers, settlement demand letters issued to third
6 parties, [and] settlement agreements.” Id. at 90 (emphasis in original). During a meet and confer 7 prior to Defendant filing this Motion, R&H indicated that Defendant should acquire the 8 information sought from “the at-fault (third party) insurer” involved in the settlement. Dkt. #35 9 at ¶ 5. Those involved were unable to resolve the dispute. 11 A. Legal Standard 12 Attorneys issuing subpoenas have a duty to “avoid imposing undue burden or expense on 13 a person subject to the subpoena.” FED. R. CIV. P. 45(d)(1). Upon receiving a subpoena, 14
16 2 R&H objected that the subpoena was “vague and ambiguous” because it was “unclear from this language whether you are requesting the entire client or case file, absent ‘privileged’ information, 17 whether you are referring solely to attorney-client privilege or some other privilege, and to what extent you are asking for ‘privileged’ documents to be redacted, withheld, and/or logged.” Dkt. 18 #33 at 88. R&H further asserted that the subpoena did not clarify “whether you are seeking confidential medical records, attorney work product, or any other sensitive documents in which 19 [Plaintiff] may have a privacy interest.” Id.
20 3 R&H objected that the subpoena requested “disclosure of privileged or confidential information” because documents may be protected by the “work product doctrine, and/or 21 confidential medical records and other documents that are likely protected by various other applicable privileges and privacy laws.” Id. 22
4 R&H objected that the subpoena sought “irrelevant documents” because the 2017 accident “was 23 not related in any way to nor caused by any employer, to [Defendant], was not work-related, not related to race or discrimination, or any claims or claims for damages in the current litigation.” 24 Id. at 88–89. 1 recipients may comply, object, or move to quash or modify the subpoena. FED. R. CIV. P. 45(d). 2 A court is to quash or modify a subpoena that: 3 (i) fails to allow a reasonable time to comply;
4 (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); 5 (iii) requires disclosure of privileged or other protected matter, if no exception 6 or waiver applies; or
7 (iv) subjects a person to undue burden.
8 FED. R. CIV. P. 45(d)(3). Upon failing to obey a lawful subpoena without an adequate excuse, a 9 recipient may be held in contempt. FED. R. CIV. P. 45(g). 10 Subpoenas are further limited by the scope of discovery allowed under Federal Rule of 11 Civil Procedure 26. Under that rule, “[p]arties may obtain discovery regarding any nonprivileged 12 matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 13 FED. R. CIV. P. 26(b)(1). “Information within the scope of discovery need not be admissible in 14 evidence to be discoverable.” Id. The Rule makes clear that “[t]he parties and the court have a 15 collective responsibility to consider the proportionality of all discovery and consider it in 16 resolving discovery disputes.” FED. R. CIV. P. 26, Advis. Comm. Notes for 2015 Amends. Even 17 where evidence is relevant and proportional, the Court may limit discovery where “the discovery 18 sought is unreasonably cumulative or duplicative, or can be obtained from some other source that 19 is more convenient, less burdensome, or less expensive.” FED. R. CIV. P. 26(b)(2)(C)(i). 20 B. Subpoena Seeks Information Within the Permissible Scope of Discovery 21 Here, Defendant establishes that the material sought is within the permissible scope of 22 discovery. Defendant argues that the accident is relevant to “job accommodations [Plaintiff] 23 sought while working for Defendant, and because they may shed light on ‘causation and 24 magnitude’ of Plaintiff’s alleged emotional distress.” Dkt. #32 at 5. The Court agrees that 1 Plaintiff’s injuries from the auto accident and their impact upon his life are clearly relevant to his 2 claims in this case. Plaintiff continues to indicate that he is specifically claiming that the 3 employment discrimination caused “emotional distress resulting in anxiety, depression, alcohol 4 abuse, and the need for ongoing mental health treatment.” Dkt. #36 at 5. True, Plaintiff does not 5 allege that the discrimination harmed him emotionally until late 2018. But the parties have not
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WESTERN DISTRICT OF WASHINGTON
8 RENARDO ROBERTSON, et al., CASE NO. C19-1618 RSM
9 Plaintiffs, ORDER
10 v.
WESTERN WASHINGTON, 12 Defendant. 13 15 This matter is before the Court on Defendant’s motion to compel the production of 16 records held by an attorney that previously represented Plaintiff on a different matter (“Motion 17 to Compel”). Dkt. #32. Plaintiff’s previous attorneys, Russell & Hill, PLLC (“R&H”), have 18 refused to comply with Defendant’s subpoena. R&H and Plaintiff oppose Defendant’s Motion 19 to Compel. For the following reasons, the Court grants the Motion. 21 In this action, Plaintiff brings claims of employment discrimination and retaliation, 22 wrongful termination, and negligent infliction of emotional distress. Dkt. #1 at ¶¶ 104–141. 23 Plaintiff seeks “actual, compensatory, economic, non-economic, special, general, and/or punitive 24 damages.” Id. at ¶ 141. Plaintiff also seeks recovery for emotional distress including pain and 1 suffering. Id. at p.18, ¶ B. As the Court specifically found in a prior order resolving a separate 2 discovery dispute, 3 Plaintiff alleges that towards the end of 2018 he experienced “extreme stress” because of the discrimination and retaliation and was instructed by his doctor to 4 “take several days off of work.” [Dkt. #1] at ¶ 48. At the same time, “Plaintiff began his therapy sessions for work stress, and he has been undergoing [] 5 treatment ever since.” Id. Plaintiff alleges that he had to again “take several more days off of work due to the extreme stress caused by the discrimination and 6 retaliation against him.” Id. at ¶ 71. The stress “became so overwhelming that he slipped into a downward spiral with depression, anxiety, and alcohol abuse and 7 had to undergo treatment for several weeks, per doctor’s note.” Id.
8 Dkt. #28 at 2. 9 Plaintiff was involved in an auto accident on November 19, 2017. The parties and R&H 10 all agree that the accident was unrelated to Plaintiff’s employment, that Plaintiff suffered some 11 damages, and that the matter was settled with the at-fault driver’s insurance company with a 12 settlement agreement. Defendant presumably does not know the identity of the insurance 13 company, the date the matter was resolved, the nature of Plaintiff’s damages, or the terms of 14 settlement. Plaintiff and R&H do not provide any of this information. 15 After Defendant learned of these events, Defendant issued a subpoena to R&H. 16 Defendant specifically sought: 17 non-privileged information relating to [Plaintiff]’s motor vehicle accident that took place on or about November 18, 2018,[1] including but not limited to: 18 (a) the settlement demand letter sent by your attorneys . . . seeking money 19 damages for injuries or losses arising out of the motor vehicle accident; and
20 (b) the settlement agreement [] executed as part of the settlement of those claims. 21 22 23
1 The parties agree the relevant accident occurred November 18, 2017, and that the subpoena’s 24 identification of “2018” was an error. 1 Dkt. #33 at 81. R&H accepted service of the subpoena and subsequently objected to the request. 2 R&H objected that the subpoena: (1) was “vague and ambiguous,”2 (2) sought “disclosure of 3 privileged or confidential information,”3 and sought “irrelevant documents.”4 Id. at 88–89. 4 Defendant reiterated, by email, that “[t]he subpoena seeks all non-privileged documents in your 5 possession . . . . including correspondence to insurers, settlement demand letters issued to third
6 parties, [and] settlement agreements.” Id. at 90 (emphasis in original). During a meet and confer 7 prior to Defendant filing this Motion, R&H indicated that Defendant should acquire the 8 information sought from “the at-fault (third party) insurer” involved in the settlement. Dkt. #35 9 at ¶ 5. Those involved were unable to resolve the dispute. 11 A. Legal Standard 12 Attorneys issuing subpoenas have a duty to “avoid imposing undue burden or expense on 13 a person subject to the subpoena.” FED. R. CIV. P. 45(d)(1). Upon receiving a subpoena, 14
16 2 R&H objected that the subpoena was “vague and ambiguous” because it was “unclear from this language whether you are requesting the entire client or case file, absent ‘privileged’ information, 17 whether you are referring solely to attorney-client privilege or some other privilege, and to what extent you are asking for ‘privileged’ documents to be redacted, withheld, and/or logged.” Dkt. 18 #33 at 88. R&H further asserted that the subpoena did not clarify “whether you are seeking confidential medical records, attorney work product, or any other sensitive documents in which 19 [Plaintiff] may have a privacy interest.” Id.
20 3 R&H objected that the subpoena requested “disclosure of privileged or confidential information” because documents may be protected by the “work product doctrine, and/or 21 confidential medical records and other documents that are likely protected by various other applicable privileges and privacy laws.” Id. 22
4 R&H objected that the subpoena sought “irrelevant documents” because the 2017 accident “was 23 not related in any way to nor caused by any employer, to [Defendant], was not work-related, not related to race or discrimination, or any claims or claims for damages in the current litigation.” 24 Id. at 88–89. 1 recipients may comply, object, or move to quash or modify the subpoena. FED. R. CIV. P. 45(d). 2 A court is to quash or modify a subpoena that: 3 (i) fails to allow a reasonable time to comply;
4 (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); 5 (iii) requires disclosure of privileged or other protected matter, if no exception 6 or waiver applies; or
7 (iv) subjects a person to undue burden.
8 FED. R. CIV. P. 45(d)(3). Upon failing to obey a lawful subpoena without an adequate excuse, a 9 recipient may be held in contempt. FED. R. CIV. P. 45(g). 10 Subpoenas are further limited by the scope of discovery allowed under Federal Rule of 11 Civil Procedure 26. Under that rule, “[p]arties may obtain discovery regarding any nonprivileged 12 matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 13 FED. R. CIV. P. 26(b)(1). “Information within the scope of discovery need not be admissible in 14 evidence to be discoverable.” Id. The Rule makes clear that “[t]he parties and the court have a 15 collective responsibility to consider the proportionality of all discovery and consider it in 16 resolving discovery disputes.” FED. R. CIV. P. 26, Advis. Comm. Notes for 2015 Amends. Even 17 where evidence is relevant and proportional, the Court may limit discovery where “the discovery 18 sought is unreasonably cumulative or duplicative, or can be obtained from some other source that 19 is more convenient, less burdensome, or less expensive.” FED. R. CIV. P. 26(b)(2)(C)(i). 20 B. Subpoena Seeks Information Within the Permissible Scope of Discovery 21 Here, Defendant establishes that the material sought is within the permissible scope of 22 discovery. Defendant argues that the accident is relevant to “job accommodations [Plaintiff] 23 sought while working for Defendant, and because they may shed light on ‘causation and 24 magnitude’ of Plaintiff’s alleged emotional distress.” Dkt. #32 at 5. The Court agrees that 1 Plaintiff’s injuries from the auto accident and their impact upon his life are clearly relevant to his 2 claims in this case. Plaintiff continues to indicate that he is specifically claiming that the 3 employment discrimination caused “emotional distress resulting in anxiety, depression, alcohol 4 abuse, and the need for ongoing mental health treatment.” Dkt. #36 at 5. True, Plaintiff does not 5 allege that the discrimination harmed him emotionally until late 2018. But the parties have not
6 given any indication that the 2017 accident was necessarily resolved quickly or even within a 7 year.5 Put simply, “Defendant will be able to obtain more information about Plaintiff’s condition 8 before and during the period of the alleged discrimination.” Dkt. #32 at 6 (citations omitted). 9 C. R&H Does Not Raise Valid Objections 10 The Court first notes that neither R&H or Plaintiff has sought to quash the subpoena or a 11 protective order. Further, the Court notes that R&H advances new objections before the Court, 12 not the ones it initially raised with Defendant.6 Principally, R&H asserts that the subpoena will 13 be an “undue burden” because compliance with the subpoena may cause a loss of goodwill on 14 the part of Plaintiff. Dkt. #34 at 4 (citing Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (2006)).
15 But as Defendant notes, the ruling in Gonzales flowed from a perceived violation of the 16 customer’s expectation to privacy. Plaintiff surely did not have a reasonable expectation of 17 privacy in non-privileged documents that were shared with a third-party insurance company. 18 Likewise, R&H claims that the subpoena poses an undue burden on it because Defendant 19 could just as easily obtain the information from the third-party insurance company without any 20
5 The Court finds Defendant’s argument that the accident is linked to job accommodations 21 requested by Plaintiff to be underdeveloped as Defendant does not make clear how the issue is related to Plaintiff’s claims in this case. 22
6 Specifically, the Court notes that R&H no longer asserts privilege or confidentiality. 23 Presumably, this is because the subpoena sought only non-privileged documents—primarily those shared with third parties. R&H does not explain why it has not produced easily identifiable 24 and clearly unprotected records that are responsive to the subpoena. 1 concern about privilege, loss of goodwill, or breach of duties owed. Dkt. #34 at 5. That may be, 2 but it does not establish that it would be an undue burden for R&H to respond to the subpoena— 3 only that another party may be less burdened. Further, the argument is disingenuous in this case, 4 where Defendant does not know the identity of the third-party insurer and neither Plaintiff nor 5 R&H will provide Defendant the information. Obtaining the information from an unidentified
6 insurer is not a simple charge and is certainly not so simple that the undefined “burden” on R&H 7 is necessarily an undue burden. 8 Lastly, R&H asserts that it is limited by the Washington State Rules of Professional 9 Conduct to not “[u]se information relating to the representation to the disadvantage of the former 10 client.” Dkt. #34 at 5 (quoting RPC 1.9(c)). This argument lacks a factual basis as there is no 11 indication that R&H “uses” the information by disclosing it pursuant to a valid subpoena or that 12 the information will necessarily work “to the disadvantage of the former client.” R&H’s 13 arguments are wholly under-developed and unavailing. 14 R&H shall comply with the lawfully issued subpoena.7
15 D. Plaintiff’s Response 16 The Court need not consider Plaintiff’s response as it was not timely filed. Defendant’s 17 Motion to Compel was correctly noted for the Court’s consideration on June 5, 2020. See LCR 18 7(d)(3) (all other motions to be noted on third Friday after filing). Pursuant to the Court’s local 19 rules, “[a]ny opposition papers shall be filed and served not later than the Monday before the 20 noting date.” Id. Plaintiff’s response was not filed and served on Monday, June 1, 2020, but on 21 Tuesday, June 2, 2020. Accordingly, Plaintiff’s response is untimely and need not be considered. 22
7 The Court notes that much of its analysis is unlikely to apply equally to a settlement demand 23 sent by Plaintiff and a settlement agreement between Plaintiff and the insurance company. However, R&H has chosen not to make document-specific arguments, arguing instead that any 24 response is an undue burden. 1 However, even if the Court were to consider Plaintiff’s response, the arguments would 2 not alter the Court’s analysis. Plaintiff makes many of the same arguments the Court has already 3 rejected. For those arguments the Court has not addressed directly, the Court notes that 4 Defendant’s Reply generally explains why those arguments fail. See Dkt. #37. 5 E. Attorneys’ Fees
6 Defendant requests that it be awarded attorneys’ fees and costs should the Court rule in 7 its favor. Dkt. #32 at 7–8; Dkt. #37 at 5. Defendant relies upon Federal Rule of Civil Procedure 8 45(g) (court “may hold in contempt a person who, having been served, fails without adequate 9 excuse to obey the subpoena or an order related to it”). Here, R&H objected to the subpoena, 10 which is an appropriate response to the subpoena. The Court finds that the issue of attorneys’ 11 fees is better addressed should R&H fail to comply with this Order. See Pennwalt Corp. v. 12 Durand-Wayland, Inc., 708 F.2d 492 (9th Cir. 1983). 14 Having considered Defendant’s motion, the relevant briefing, the declarations and
15 records submitted in support thereof, and the remainder of the record, the Court hereby finds and 16 ORDERS that Defendant’s Motion to Compel Production of Documents by Russell & Hill, 17 PLLC, in Response to Defendant’s Subpoena and For Attorney Fees (Dkt. #32) is GRANTED 18 in part and DENIED in part. No later than seven (7) days from the date of this Order, Russell 19 and Hill, PLLC, shall fully comply with the subpoena served by Defendant Catholic Community 20 Services of Western Washington. 21 Dated this 23rd day of June, 2020. 22 A 23 RICARDO S. MARTINEZ 24 CHIEF UNITED STATES DISTRICT JUDGE