TONY MORROW, Plaintiff, v. TYSON FRESH MEATS, INC., Defendant No. 20-cv-2033-CJW United States District Court, N.D. Iowa, Eastern Division Filed June 04, 2021 Counsel Melissa Carol Hasso, Emily Elaine Wilson, Sherinian and Hasso Law Firm, Des Moines, IA, Menaka Fernando, Pro Hac Vice, Outten & Golden LLP, San Francisco, CA, Aliaksandra Ramanenka, Pro Hac Vice, Tammy Marzigliano, Pro Hac Vice, Outten & Golden LLP, New York, NY, for Plaintiff. Michael R. Reck, Kelsey J. Knowles, Mariah L. Slocum, Erika Lauren Bauer, Belin McCormick PC, Des Moines, IA, for Defendant. Roberts, Mark A., United States Magistrate Judge ORDER *1 Before me is a Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order filed by Plaintiff Tony Morrow on May 5, 2021. (Doc. 44.) Defendant Tyson Fresh Meats, Inc. timely filed a resistance. (Doc. 50.) Plaintiff Tony Morrow timely filed a reply. (Doc. 52.) I have determined that no hearing is necessary. I. BACKGROUND I summarized the pertinent background in a prior order as follows: Plaintiff was employed by Defendant from August 2012 through August 2019. She alleges she was subject to workplace harassment because of her gender and sexual orientation and seeks, among other things, damages for emotional distress. Plaintiff has obtained an opinion from her expert witness regarding the nature of her injuries, their cause, and anticipated treatment. Defendant claims it requires additional medical and mental health records to respond to this report and prepare its defense. Defendant also contends it needs all of Plaintiff's social media content for these purposes. (Doc. 43 at 1.) A. Applicable Standards While the motion nominally seeks to quash subpoenas and enter a protective order, in essence the motion seeks one thing, i.e., to prevent Defendant from obtaining certain information by subpoenas on third parties. Federal Rule of Civil Procedure 45(d) requires attorneys responsible for issuing subpoenas to avoid undue burden and expense on a person subject to the subpoena. A subpoena must be quashed or modified under certain circumstances: On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A) (emphasis added). It should be noted that none of the third parties subject to subpoena have raised the objections before the Court. Thus, in my discussion of the various subpoenas, I will address whether Plaintiff has standing to raise certain objections. Rule 26(b) governs the scope of discovery in general. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain 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 be discoverable. Fed. R. Civ. P. 26(b)(1). Subsection 26(b)(2)(B) limits discovery regarding electronically stored information: A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. *2 Fed. R. Civ. P. 26(b)(2)(B). Subsection 26(b)(2)(C) provides that the court “must limit” the extent of discovery if it determines: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C) “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Rule 34(a) provides for discovery by production requests “within the scope of Rule 26(b).” A party may obtain, as of right, discovery “relevant to any party's claim or defense.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2008 (3d ed. 2010). B. The Marcus Patrick Subpoena Plaintiff moves to quash a subpoena that seeks to obtain all of the text messages she exchanged with her friend Marcus Patrick. Plaintiff also seeks to quash subpoenas to her former employees, McDonald's and Hy-Vee, that seek her employment records. With regard to Mr. Patrick, Plaintiff claims the subpoena is “overly broad, seeks communications not relevant to any party's claim or defense, not proportional to the needs of the case of the case, not drafted with reasonable particularity, and is nothing but a fishing expedition designed to harass Plaintiff by seeking her private communications with her friend.” (Doc. 44-1 at 1-2.) Plaintiff has offered to review Mr. Patrick's texts and provide messages that fall within the following parameters: (A) text messages relating to the parties' claims and defenses in this lawsuit; and (B) text messages that fall under the social media production parameters adopted by the Court in its April 29, 2021 Order, including the text messages, if any, relating to (1) use of alcohol/drugs at work; (2) being impaired due to alcohol/drugs at work. Defendant rejected this proposal. (Id.at 3.) Defendant points to numerous instances where it believes Plaintiff made contradictory statements or where her statements are readily refuted. Defendant contends that Plaintiff's credibility is a central issue in the case. Defendant further contends that Mr. Patrick is Plaintiff's primary witness. One of Plaintiff's complaints relates to an assault by a former plant manager. Defendant believes Mr. Patrick will be called to support Plaintiff's version of events, including testifying to prior consistent statements Plaintiff made regarding the assault. It appears that Mr. Patrick is not only a witness to disputed events, but also a close friend to whom Plaintiff could be expected to confide and in whom Plaintiff claims she did confide about important issues in the case. Also, given the reported close relationship between them, the absence of communication about significant events could also be relevant. Defendant challenges Plaintiff's standing to object on grounds of undue burden. Defendant relies on, among other cases, Crain v. Crain which held that a party lacked standing to challenge the breadth of subpoenas directed to third parties because any “undue burden” would not fall on her. 2:20-CV-2038, 2020 WL 8182189, at *3 (W.D. Ark. Nov. 5, 2020). Crain, in turn, relied on Streck, Inc. v. Research & Diagnostic Sys., which held that “third parties themselves are in the best position to negotiate with the requesting party and, if necessary, raise their own objections pursuant to Fed. R. Civ. P. 26(c) or Fed. R. Civ. P. 45(c).” 2009 WL 1562851, at *3 (D. Neb. June 1, 2009). Plaintiff did not address this standing argument. I am reluctant, under these circumstances, to resolve the issue based on Plaintiff's alleged lack of standing. As one of the participants in the texts, Plaintiff has as great an interest in protecting the communications (to the extent they are entitled to protection) as Mr. Patrick. Under the circumstances of this case, the real undue burden would be to require Mr. Patrick to appear in his friend's litigation, perhaps at significant expense, to litigate the issue. In any event, the undue burden argument is readily disposed of. There is not undue burden in producing a string of text messages. It may take some time (and perhaps some instruction) to produce the messages, but even if he is required to screenshot and email all of them,[1] there is no showing that this creates a significant, let alone undue, burden. *3 Whether the subpoena lacks particularity, is disproportionate to the needs of the case, or is merely designed to harass Plaintiff by seeking her private communications is also easily disposed of. Plaintiff likens the request to the prior demand that she download her entire Facebook profile for Defendant's inspection which I did not permit. (Doc. 43.) I see the earlier request as essentially different than the subpoena at issue. Unlike that prior request, the subpoena is targeted toward communications between Plaintiff and a crucial witness and confidant. Unlike downloading an entire Facebook profile which is, essentially, a database of communications, pictures, and posts about almost anything, a request for communications between Plaintiff and a key witness is not so overbroad or lacking in particularity to render it objectionable. The request is not akin to a request that Plaintiff provide all her communications with every person with whom she may have communicated about something relevant to the case. Rather, it is targeted toward the person who Plaintiff has identified as the person with whom she actually communicated about crucial incidents. Thus, as Defendant points out, even the absence of communications may be relevant. This also leads to the conclusion that the subpoena is not disproportionate to the needs of the case or merely designed to harass Plaintiff. Plaintiff's motion to quash and motion for protective order regarding the subpoena upon Mr. Patrick are denied. C. Subpoenas to Plaintiff's Former Employers Plaintiff's prior employers include McDonald's and Hy-Vee, Inc. Defendant has subpoenaed Plaintiff's personnel file from each employer. Plaintiff objects as follows: “In addition to infringing upon Ms. Morrow's privacy interest in her employment records, these subpoenas are also overly broad, seek discovery not proportional to the needs of the case, and are harassing.” (Doc. 44-1 at 4.) Defendant contends these records will reflect on Plaintiff's credibility especially regarding her assertions that she suffered no distress prior to working at Tyson despite her admission of having been harassed at McDonalds. Defendant also claims there are differing accounts of whether Plaintiff was fired from her job at Hy-Vee. This is relevant because her expert has opined termination would be a significant source of distress. Before I stayed the enforcement of the subpoenas so the issues could be briefed (Doc. 45), Hy-Vee produced records showing Plaintiff had been fired for theft, contrary to Plaintiff's testimony. Plaintiff requests these records now be treated as inadvertently disclosed privileged communications. Plaintiff asserts she has a privacy interest in her personnel files. This is undoubtedly true, especially where someone seeks a non-party's personnel records. See e.g., Austin v. CRST Expedited, Inc., C13-91-EJM, 2014 WL 12603140, at *2 (N.D. Iowa Aug. 19, 2014) (request seeking “the personnel files of any female employee who was hired by [the defendant] and did not get hired on full-time.”) However, as Defendant points out, that privacy interest is diminished where a plaintiff initiates an employment lawsuit. (Doc. 50 at 16 citing Botta v. PricewaterhouseCoopers LLP, No. 18-CV-02615-RS (LB), 2018 WL 6257459, at *2 (N.D. Cal. Nov. 30, 2018). Both parties have cited cases regarding discovery of former employer's records. As the Honorable Chief Judge Leonard Strand stated when he was a Magistrate Judge facing a similar issue, “I find other cases to be of limited value with regard to an issue of this nature because each case turns on very specific facts.” Cornell v. Jim Hawk Truck Trailer, Inc., 298 F.R.D. 403, 406 (N.D. Iowa 2014). However, Cornell is helpful. In Cornell, unlike the case at bar, the request was narrowed from entire personnel files to performance evaluations and disciplinary reports. Cornell ordered production of the plaintiff's personnel files from prior employment.[2] where the defendant “articulated a sufficient, logical explanation of potential relevance to permit discovery.” Id. at 407. Here, I conclude Defendant has articulated such an explanation to permit the requested discovery. On its own, the issue of Defendant's credibility might not justify the intrusion into the personnel files. In other words, a mere quest to find something potentially inconsistent with a plaintiff's story that might be hidden in a personnel file seems more like the “fishing expedition” Plaintiff complains about. In this case, whether the damages Plaintiff claims are properly attributed to her experience with Defendant or her prior employers makes those records relevant and discoverable. Also, the issue of whether Plaintiff was fired or quit her job at Hy-Vee is relevant to her damages and her credibility. *4 These records requests do not pose an undue burden on the former employers. Indeed, we know that Hy-Vee's records are minimal and have already been produced. Human resources departments routinely make personnel files available to employees and otherwise in litigation. I also find the subpoenas to be proportional to the needs of the case. Therefore, Plaintiff's motion to quash and for a protective order is denied regarding the subpoenas issued to McDonald's and Hy-Vee. II. CONCLUSION Defendant's Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order (Doc. 36) is denied as explained above. The stay imposed by my prior order (Doc. 45) is hereby lifted. Defendant shall provide a copy of the order to each subject of the subpoena and they are ordered to comply with the subpoenas. IT IS SO ORDERED this 4th day of June, 2021. Footnotes [1] I do not intend this to be a comment on the appropriate means of producing the texts. [2] Cornell addressed the plaintiff's personnel file at her current employment. That is not an issue here.