Natalie Roby, Plaintiff, v. Bloom Roofing Systems, Inc., Defendant Case No. 22-10622 United States District Court, E.D. Michigan, Southern Division Filed October 13, 2022 Grey, Jonathan J.C., United States Magistrate Judge ORDER GRANTING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER (ECF NO. 15) AND DENYING DEFENDANT'S MOTION TO AMEND (ECF NO. 20) *1 Natalie Roby brings this complaint against Bloom Roofing Systems, Inc. (“Bloom Roofing”), alleging unlawful termination and retaliation in violation of the Family Medical Leave Act (FMLA), sex discrimination in violation of Michigan's Elliot-Larson Civil Rights Act (ELCRA), and disability discrimination in violation of Michigan's Persons with Disabilities Civil Rights Act (PDCRA). (ECF No. 1.) On August 12, 2022, Roby filed a motion for protective order requesting to quash subpoenas issued to her former and current employers and protect Roby from Bloom Roofing issuing similar subpoenas. (ECF No. 15.) On August 26, 2022, Bloom Roofing moved to amend its answer, adding the affirmative defense of failure to exhaust administrative remedies. (ECF No. 20.) The motions are fully briefed. The Court held a hearing on both motions on September 19, 2022. For the reasons stated on the record and in this order, the Court GRANTS Roby's motion for protective order (ECF No. 15), and the Court DENIES Bloom Roofing's motion to amend as futile (ECF No. 20). I. Background According to the civil complaint, on August 25, 2021, Bloom Roofing fired Roby, a service account specialist, after Roby took twelve weeks of leave under the Family Medical Leave Act to recover from her pregnancy and care for her premature child. (ECF No. 1.) Roby claims that she is an expert in the commercial roofing industry with over 15 years of experience and that in that time, she has performed her job duties excellently. (Id.) Roby also claims that her Bloom Roofing supervisor, Mr. Shaw, made many disparaging comments that were based on her gender before and after her pregnancy. (Id.) Further, she claims that Bloom Roofing terminated her in retaliation for Roby taking leave for a medical need, an activity protected by FMLA. (Id.) However, Bloom Roofing claims that it fired Roby for her erratic, unreliable, and ineffective performance. (ECF Nos. 6, 18-1.) Roby's alleged failures include missing deadlines, working limited hours without permission, receiving complaints from customers, and submitting poor work product. (ECF Nos. 6, 18-1.) II. Motion for Protective Order A. Legal Standard “Parties may obtain discovery on any non-privileged matter that is relevant to any party's claim or defense, and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). The scope of discovery should be “accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). However, “the court must limit the frequency or extent of discovery otherwise allowed ... if ... 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 ... or the proposed discovery is outside of the scope permitted by [Federal ] Rule [of Civil Procedure] 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Additionally, “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending ... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). To establish good cause for a protective order, the movant is required to illustrate one of Rule 26(c)(1)'s enumerated harms “with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (citations omitted). *2 Courts have authority under Federal Rule of Civil Procedure Rule 26(b) and 26(c) to limit discovery. Further, courts have broad discretion over discovery matters. Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999). B. Analysis In this district, judges have granted protective orders to employees suing their former employers for wrongful termination, protecting them from defendant former employers issuing subpoenas to non-party past employers. See Oates v. Target Corp., No. 11-14837, 2012 WL 4513731, at *3 (E.D. Mich. Oct. 2, 2012) (quashing all subpoenas issued to former employers); Tribula v. SPX Corp., No. 08-13300, 2009 WL 87269, at *2 (E.D. Mich. Jan. 12, 2009) (quashing subpoenas to some of the plaintiff's former employers and leaving some unquashed). Those decisions reasoned that the information sought would be irrelevant to the case and that the defendants could have obtained the information before hiring the plaintiff employees. See Tribula, 2009 WL 87269, at *2; Oates, 2012 WL 4513731, at *3. In Tribula, the plaintiff sued his former employer for violation of FMLA. Tribula, 2009 WL 87269, at *1. The defendant sent subpoenas to plaintiff's subsequent and past employers. Id. The court found that good cause existed to grant a Rule 26(c) protective order and quashed the subpoenas sent to some of the plaintiff's former employers because the defendant could have sought that information before terminating the plaintiff and no specific need was established. Id. at *2. But the court did not find good cause to quash subpoenas to two of plaintiff's former employers because the plaintiff did not disclose those former employers to the defendant prior to his employment; thus, the defendant could not have discovered the information prior to hiring the plaintiff. Id. at *3. Additionally, in Tribula, pursuant to the parties' prior agreement, the defendant was allowed to subpoena certain subsequent employers who had terminated the plaintiff. Id. at *2. In Oates, the plaintiff sued her former employer for wrongful termination based on race and disability discrimination. Oates, 2012 WL 4513731, at *1. The court denied the defendant's motion to compel production of documents from non-party past employers because they were irrelevant to an after-acquired evidence defense. Id. at *2. Additionally, the court found that all the relevant information needed for damages was contained in records from her subsequent employers, which the plaintiff had already voluntarily provided to the defendant. Id. While those cases are helpful to the Court in understanding the good cause requirements of Rule 26(c)(1) and the relevancy of discovery sought from former employers, those cases covered different issues and concerned different kinds of evidence and defenses than in this case. See Oates, 2012 WL 4513731 (concerning an after-acquired evidence defense[1] and facts regarding misstatements on an employment application); Tribula, 2009 WL 87269 (concerning an after-acquired evidence defense and regarding omissions on an employment application and plaintiff's military records); Fed. R. Civ. P. 26(c)(1). More importantly, those cases relied on Rule 26(c)(1), which has a higher standard for limiting discovery than under Rule 26(b)(2).[2] See Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 122 (E.D. Mich. 2019) (stating that neither Rule 26(b)(1) nor 26(b)(2) requires a showing of good cause as required by Rule 26(c)(1)). Judges in this district have limited discovery on motions for a protective order or denied discovery on motions to compel under Rule 26(b)(2). Edwards, 331 F.R.D. at 117, 122, 126 (granting in part, under Rule 26(b)(2), a motion for protective order to limit a deposition); In re DaimlerChrysler AG Securities Litigation, 216 F.R.D. 395, 406 (E.D. Mich. Jul. 2, 2004) (denying, under Rule 26(b)(2), a motion to compel compliance with subpoenas); Greater Lakes Ambulatory Surgical Ctr., PLLC v. State Farm Mut. Auto. Ins. Co., No. 11-11003, 2011 WL 5245141, *3 (E.D. Mich. Nov. 3, 2011) (denying, under Rule 26(b)(2), a motion to compel as the request was too burdensome). *3 Notwithstanding the material differences between this case and Tribula and Oates, the Court finds the reasoning in those decisions regarding past employers and the arguments espoused by Roby persuasive. The information sought from past employers is irrelevant for a case alleging a wrongful termination in violation of FMLA and based on sex and disability discrimination. Roby's prior performance at her other jobs have no bearing on whether Bloom Roofing wrongfully terminated her unless Bloom Roofing had that information and relied on it in its decisions to hire or fire her. See Tribula, 2009 WL 87269, at *2; Oates, 2012 WL 4513731, at *2. That is, either Bloom Roofing already possessed information about Roby's alleged prior misconduct at her past employers and relied on that information when making its employment decisions regarding Roby, or Bloom Roofing did not know about any prior conduct and did not rely on that information when making its employment decisions. See Tribula, 2009 WL 87269. The former situation would make discovery unnecessary as Bloom Roofing would already have the information, which would make Bloom Roofing the most convenient source of the information. See Fed. R. Civ. P. 26(b)(2)(C)(i). The latter situation would make the information irrelevant and not proportional because Bloom Roofing would not have relied on it in making any employment decisions. See Fed. R. Civ. P. 26(b)(2)(C)(ii). Roby's statement in her complaint that she performed “excellently” at her prior jobs does not necessarily put that statement or the facts supporting it at issue in this case. Her performance at her prior jobs is not an indication of her performance with Bloom Roofing, making the information sought from the past employers irrelevant. Therefore, the Court QUASHES the subpoenas issued to Roby's former employers as irrelevant and not proportional. Further, under Federal Rule of Civil Procedure 26(b)(2)(C)(ii), the Court limits the issuance of any additional subpoenas to Roby's former employers. Bloom Roofing SHALL refrain from issuing additional subpoenas to any of Roby's former employers. Additionally, the Court finds that the subpoena issued to Roby's current employer also seeks irrelevant information. Relevant information concerning back pay and damages can be found exclusively with Bloom Roofing, Roby, and her subsequent employer as she is seeking compensatory damages, lost wages, and liquidation damages, all of which can be determined by her wages from her current employer and by her wages earned at Bloom Roofing. This inquiry can be answered with Roby's pay stubs and benefits information from Bloom Roofing and her current employer; thus, the most convenient sources are Roby and Bloom Roofing. Subpoenaing this information from Roby's current or subsequent employer is not proportional to the needs of the case as it creates an unnecessary burden on a non-party when the parties themselves can provide the information. Fed. R. Civ. P. 26(b)(2)(C)(i). Further, Roby's counsel stated at the hearing on the motion to quash that Roby will provide the requested information concerning pay stubs from her current job to substantiate damages, lost wages, and liquidation damages. Thus, the Court QUASHES the subpoenas issued to Roby's current employer as not proportional to the needs of the case. Additionally, Bloom Roofing SHALL not issue any further subpoenas to Roby's current employer or any subsequent employers without leave of Court. III. Motion for Leave to Amend Answer A. Legal Standard A party may amend its pleadings once as a matter of course within 21 days after serving it, or if there is a responsive pleading or motion, within 21 days after service of a responsive pleading or a Rule 12 motion. Fed. R. Civ. P. 15(a)(1). Alternatively, a party may amend its pleading with the opposing party's consent or the court's leave, which should be given freely when justice so requires. Fed. R. Civ. P. 15(a)(2). A court should deny a motion for leave to amend only if there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis 371 U.S. 178,182 (1962) (emphasis added). “[I]f the proposed change is clearly frivolous or advances a claim or defense that is legally insufficient on its face, the court may deny leave to amend.” Iron Workers' Local No. 25 Pension Fund v. Klassic Services, Inc., 913 F. Supp. 541, 542 (E.D. Mich. 1996) (emphasis added). B. Analysis *4 Roby has not made any claims in her complaint that require exhaustion of administrative remedies. 29 U.S.C. § 2617(a)(2) (an employee may bring action to recover damages for violations of FMLA without the need to exhaust any administrative remedies); Mich. Comp. Laws Ann. § 37.2801 (West 2022) (a person alleging a violation of ELCRA may bring a civil action for relief without the need to exhaust any administrative remedies); Mich. Comp. Laws Ann. § 37.1606 (West 2022) (a person alleging a violation of PDCRA may bring a civil action for relief without the need to exhaust any administrative remedies). Thus, adding a defense of failure to exhaust remedies to Bloom Roofing's answer would be to “advance a claim or defense that is legally insufficient on its face.” Iron Workers' Local No. 25, 913 F. Supp. at 542. Bloom Roofing argues that Roby did not exhaust her administrative remedies on Title VII and ADA discrimination claims because she has not received a right-to-sue letter from the EEOC. (ECF No. 27, PageID.464.) Bloom Roofing is correct in that Roby has not exhausted administrative remedies as to those claims. However, Roby has not yet made a Title VII or ADA discrimination claim in this case. Bloom Roofing cannot add a defense to a hypothetical future claim. Additionally, Bloom Roofing argues that the Court lacks supplemental jurisdiction over Roby's state law claims (Id.), but that has no bearing on a defense of failure to exhaust administrative remedies. Further, the Court received a referral only for Bloom Roofing's motion to amend and Roby's motion for protective order and cannot address the question of subject matter jurisdiction. (ECF Nos. 17, 23.) The Court, therefore, DENIES Bloom Roofing's motion to amend (ECF No. 20) as futile. IV. Conclusion For the preceding reasons, the Court GRANTS Roby's motion for a protective order (ECF No. 15) and QUASHES the subpoenas issued to her former and subsequent employers. Additionally, Bloom Roofing SHALL refrain from issuing any additional subpoenas to Roby's past, current, or subsequent employers. Finally, the Court DENIES Bloom Roofing's motion to amend (ECF No. 20) as futile. SO ORDERED. Footnotes [1] Bloom Roofing includes a sub-section in their response brief labeled “After-acquired evidence of note to date” under the background heading but does not make any substantive arguments that the requested evidence at issue would support that defense. (ECF No. 18-1.) The Court concludes that the information in that section was part of the factual background and not an indication of the defense that the requested information would support. [2] Rule 26(c) provides: The court may, for good cause, issue an order to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense ... (emphasis added). Rule 26(b)(2)(C) provides: On a motion or on its own, the court may limit the frequency or extent of discovery ... if it determines that: [1] 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 ... [2] the proposed discovery is outside the scope permitted by Rule 26(b)(1) (emphasis added).