Taylor (Smith) BURKS, Plaintiff, v. CHECKERS DRIVE-IN RESTAURANTS, INC. d/b/a Rally's and Wellspring Capital Management, Inc., d/b/a Rally's, Defendants CAUSE NO. 3:17-cv-00316-PPS-MGG United States District Court, N.D. Indiana, South Bend Division Signed November 01, 2018 Counsel Jeffrey S. Wrage, Colby A. Barkes, Blachly Tabor Bozik & Hartman LLC, Valparaiso, IN, for Plaintiff. Nicholas S. Andrews, PHV, Pro Hac Vice, Richard C. McCrea, PHV, Jr., Pro Hac Vice, Sara G. SanFilipp, PHV, Pro Hac Vice, Greenberg Traurig PA, Tampa, FL, Scott E. Andres, Due Doyle Fanning & Alderfer LLP, Indianapolis, IN, for Defendant Checkers Drive-In Restaurants, Inc. Gotsch Sr., Michael G., United States Magistrate Judge ORDER *1 Pending and ripe before the Court is Plaintiff's Motion to Quash Non-Party Subpoenas issued to Plaintiff's subsequent and present employers. On June 15, 2018, Plaintiff filed the instant motion asking the Court to quash the entirety of Defendant, Checkers Drive-In Restaurants’, non-party subpoenas to Life Care Center of Michigan City (“LCCMC”), Plaintiff's immediate past employer, and Franciscan Health Michigan City a/k/a St. Anthony's Hospital (“St. Anthony's”), her current employer. Through the motion, Plaintiff argues that (1) the proposed subpoenas are burdensome on her relationship with LCCMC and St. Anthony's; (2) the information sought by Defendant is not relevant to any affirmative defense; and (3) Defendant has already received sufficient information via less intrusive means. Plaintiff's motion became ripe on July 16, 2018, after Defendant filed a response brief and Plaintiff filed a reply brief. For the reasons stated below, Plaintiff's motion is granted in part and denied in part. I. RELEVANT BACKGROUND Burks brought this action against Checkers, her former employer, alleging claims of violation of Title VII of the Civil Rights Act of 1964, based upon her sex plus pregnancy, sex plus caregiver responsibilities, and retaliation; violation of 42 U.S.C. § 1981, which prohibits racial discrimination and retaliation of engagement in protected activities; and violation of the Fair Labor Standards Act. In her complaint, Burks alleges that her supervisor at Checkers, Gloria Reed, informed her on February 4, 2015 that Burks could not be a manager at Checkers while she was pregnant. Burks alleges that Reed never again scheduled Burks for work. After a favorable cause finding by the Equal Employment Opportunity Commission and the birth of her child, Burks sought other employment to mitigate her damages. Burks subsequently held a position at LCCMC and voluntarily left employment at LCCMC to take a position with St. Anthony's. Burks is currently employed at St. Anthony's. On June 7, 2018, Defendant served Plaintiff's counsel with its notice with copies of the proposed subpoenas to LCCMC and St. Anthony's. Defendant seeks the following information about Plaintiff from the respective non-parties: (a) employment applications; (b) resumes; (c) interview notes; (d) evaluations; (e) disciplinary records; (f) documents reflecting reasons for leaving, if any; and (g) documents reflecting all wages or remuneration paid to Taylor (Smith) Burks. [DE 29-1 at 3]. II. ANALYSIS A. Standard of Review “Federal Rule of Civil Procedure 45(a) permits the issuance of subpoenas to produce documents and other tangible things in the custody or control of a person.” Malibu Media, LLC v. John Does 1-14, 287 F.R.D. 513, 516 (N.D. Ind. 2012) (citations omitted). Therefore, under Rule 45, all parties have the ability to seek discovery from non-parties using subpoenas. “On timely motion, the court for the district where compliance is required must quash or modify a subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). To determine whether a subpoena is unduly burdensome, a court weighs a number of factors including relevance, need, the breadth of the document request, the time period covered by it, the particularity with which the documents are requested, the burden imposed, and non-party status. WM High Yield v. O'Hanlon, 460 F. Supp. 2d 891, 896 (S.D. Ind. 2006). A party seeking to quash a subpoena bears the burden of establishing that the subpoena falls within Rule 45’s exceptions. See Malibu Media, 287 F.R.D. at 516; LaSalle Nat. Assoc. v. Nomura Asset Capital Corp., No. 03 C 4065, 2003 WL 21688225, at *1 (N.D. Ill. July 16, 2003). *2 As a general rule, “a party lacks standing to quash a subpoena issued to a nonparty unless the party has a claim of privilege attached to the information sought or unless it implicates a party's privacy interests.” Malibu Media, 287 F.R.D. at 516; Hard Drive Prods. v. Does 1-48, No. 11 CV 9062, 2012 WL 2196038, at *3 (N.D. Ill. June 14, 2012); see also Brady v. Cent. Ind. Reg'l Blood Ctr. Inc., No. 1:99-MC-19, 1999 WL 33912610, at *1 (N.D. Ind. Oct. 6, 1999) (citations omitted). In other words, “[a] party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests.” United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982). A party needs only a minimal privacy interest to establish standing to quash a subpoena. Malibu Media, 284 F.R.D. at 516. B. Plaintiff's Motion to Quash In the instant motion to quash, Plaintiff challenges Defendant's non-party subpoenas to LCCMC and St. Anthony's arguing that (1) she has standing to challenge both subpoenas; (2) the subpoenas were filed without proper notice; (3) the requested production would pose a significant undue burden on her; (4) the requested production is not relevant to her claims; and (5) less intrusive means are available to, and have been used by, Defendant to obtain the desired information. In its response brief, Defendant argues that the Plaintiff lacks standing to challenge the subpoenas and the requested production is relevant in this case. Furthermore, Defendant argues it has attempted to pursue less intrusive means to no avail. 1. Standing A party has standing to move to quash a non-party subpoena if “the subpoena infringes upon the movant's legitimate interests.” Raineri, 670 F.2d at 712. Because a party's legitimate interests include privacy, a party has standing to quash a non-party subpoena when “it implicates a party's privacy interests.” Hard Drive, 2012 WL 2196038, at *3. A plaintiff's interests in the private information contained in her employment records does not mean the subpoenas must quashed, but it means that the Court should hear the plaintiff's arguments on the issue. Woods v. Fresenius Med. Care Grp. of N. Am., No. 1:06-cv-1804-RLY-WTL, 2008 WL 151836, at *1 (S.D. Ind. Jan. 16, 2008). Here, the documents from Burks’ current and immediate past employers are part of her personnel files, and so clearly implicate privacy concerns. Burks does have a legitimate privacy interest in “protecting the confidentiality of much of the information contained in her employment records and also in maintaining her relationship with her current employer.” Id. Therefore, Plaintiff has standing to challenge Defendant's proposed subpoenas to both LCCMC and St. Anthony's. 2. Notice If a subpoena commands “the production of documents, electronically stored information, or tangible things,” Federal Rule of Civil Procedure 45(a)(4) requires the party to first serve notice and a copy of the subpoena on each party before the subpoena is served on the person to whom it is directed. In support of her motion to quash, Plaintiff argues that Defendant violated Federal Rule of Civil Procedure 45(a)(4) by failing to provide her notice of the LCCMC and St. Anthony's subpoenas before serving them to the non-parties on June 6, 2018. Defendant explains that the subpoenas were never served, and Plaintiff acknowledges this misunderstanding in its reply brief. [DE 40 at 1]. Defendant served Plaintiff notice of the subpoenas, along with copies of the proposed subpoenas as required by Federal Rule of Civil Procedure 45(a)(4) on June 6, 2018. Defendant claims it withheld service of the subpoenas to LCCMC and St. Anthony's pending the resolution of Plaintiff's objection. Therefore, sufficient notice was given by Defendant pursuant to Federal Rule of Civil Procedure 45(a)(4) and Plaintiff was able to timely file the instant motion to quash. *3 As a result, the sanctions Plaintiff seeks to compensate for Defendant's alleged abuse of the discovery process through insufficient notice are not warranted. Discovery sanctions should only be awarded when a party acts in “bad faith, vexatiously, wantonly, or for oppressive reasons.” Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 386 (7th Cir. 2008) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43–44 (1991)). Nothing in the record suggests anything more than an inadvertent failure to communicate effectively concerning the service of the subpoenas. 3. Quashing the LCCMC and St. Anthony's Subpoenas As explained in Section II.B.1, Plaintiff has a strong interest in maintaining her relationship with her current employer, which implicates a legitimate privacy interest in the information sought by Defendant through its subpoenas on LCCMC and St. Anthony's. When privacy concerns are at issue, the Court must weigh whether the requesting party has a compelling need for discovery and whether that need outweighs the privacy interest. Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 554 (N.D. Ill. 2008); see also Woods, 2008 WL 151836, at *1 (explaining the Court's duty to consider “whether the burden or expense of the proposed discovery outweighs its likely benefits”). The party opposing discovery has the burden of showing the discovery is overly broad, unduly burdensome, or not relevant. Graham v. Casey's Gen. Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002). In the instant case, Plaintiff argues that the discovery requested by LCCMC and St. Anthony's is not relevant, and thus the burden the subpoena would impose on the relationship with her employer outweighs the potential relevance of the information sought. Through the non-party subpoenas at issue, Defendant seeks seven specific categories of documents related to the Plaintiff's employment at LCCMC and St. Anthony's. Specifically, the subpoenas request production of employment applications, resumes, interview notes, evaluations, disciplinary records, documents reflecting reasons for leaving, if any, and documents reflecting all wages or remuneration paid to Burks. Defendant claims that the information sought from these documents is relevant to: (1) Burks’ efforts to mitigate her damages; (2) Burks’ alleged emotional distress as a result of the alleged discrimination and retaliation she claims she suffered; and (3) Burks’ statements about her separation from Checkers. Defendant relies upon Brady v. Central Indiana Regional Blood Center, Inc. to argue that its limited list of requested documents are “reasonably calculated to lead to relevant, and potentially admissible evidence in response to the Plaintiff's Title VII claim.” 1999 WL 33912610, at *2. Plaintiff, on the other hand, has produced her W-2 summaries created by the Internal Revenue Service, which is considered sufficient evidence to substantiate income. See Woods v. Von Maur, Inc., No. 09-C-7800, 2011 WL 6945763, at *1 (N.D. Ill. Dec. 12, 2011) (accepting W-2 forms as evidence of the Plaintiff's back-pay damages). Thus, to the extent that Defendant seeks information relevant to the mitigation of Plaintiff's damages, it has been produced. Additionally, Plaintiff rejects Defendant's claim that the applications, resumes, and interview notes it seeks may contain missing information about Plaintiff's employment history. Plaintiff explains that she already disclosed all information about her employment history in response to Defendant's Interrogatories. Importantly, Plaintiff also asserts that she can provide any missing information Defendant needs related to her employment history and reasons for leaving her job at Checkers, which would be less intrusive than burdening non-parties LCCMC and St. Anthony's. Plaintiff acknowledges in her Response Brief that Defendant has an interest in discovering Plaintiff's exact date of hire and rate of pay upon hiring from Plaintiff's first employer subsequent to Checkers, LCCMC. Because this information is relevant to determine accurate damages and will not burden Plaintiff's relationship with her current employer, the Court will allow Defendant to serve a narrowly tailored subpoena to LCCMC seeking Plaintiff's exact date of hire and rate of pay upon hiring. *4 Further, Plaintiff objects to Defendant's requests for job applications, resume, interview notes, evaluations, disciplinary records, and documents reflecting reasons for leaving as written as overly broad. Plaintiff explains that she is only seeking back-pay damages for the time period from leaving Checkers until she was hired by LCCMC. Accordingly, she argues that documents reflecting reasons for leaving her job at LCCMC, which would be relevant if she were seeking damages beyond her unemployment period, are not reasonably calculated to produce relevant and admissible evidence. Defendant claims the documents relating to Plaintiff's disciplinary records are relevant to her claim for emotional distress because Plaintiff has put her mental state at issue by making this claim. When a plaintiff narrows her claim to general pain and suffering involving only the “negative emotions that she experienced as the intrinsic result of defendant's alleged conduct,” she cannot introduce evidence as to any resulting symptoms or conditions that she may have suffered. Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999). Additionally, medical evidence of mental or emotional impairment is not necessary to sustain an award of compensatory damages for subjective pain and suffering inferred from circumstances or established by testimony. Seaton v. Sky Realty Co., 491 F.2d 634, 637-38 (7th Cir. 1974). Here, Plaintiff limits her emotional distress claim for “garden-variety emotional distress, general mental pain and anguish, humiliation, embarrassment to name, character and reputation....” [DE 1 at 13]. She has not indicated that she will make any specific claims about her symptoms or conditions stemming from her mental state. Therefore, any information Defendant could gather about Plaintiff's emotional symptoms or conditions through Plaintiff's disciplinary records is not relevant to Plaintiff's emotional distress claim. Defendant has failed to prove a compelling need for the information in relation to any affirmative defense it asserts that could outweigh Plaintiff's substantial privacy interests in the information. Defendant may again seek employment applications and resumes from Plaintiff in order to discover information relevant to mitigation of damages, calculation of back-pay, and statements about why Plaintiff left her employment at Checkers. If Plaintiff cannot produce or refuses to produce this information, Defendant may file an appropriate motion under the Rules in order to compel this discovery. III. CONCLUSION For the reasons stated above, the Court now GRANTS in part Plaintiff's Motion to Quash Non-Party Subpoena intended to be served on St. Anthony's [DE 29-2]. Plaintiff's Motion to Quash Non-Party Subpoena intended to be served on LCCMC is GRANTED in part and DENIED in part. [DE 29-1]. Defendant may serve a narrowly tailored subpoena, seeking only Plaintiff's date of hire and rate of pay upon hiring, upon LCCMC by November 15, 2018. Both parties request attorney's fees under Federal Rule of Civil Procedure 37(a)(5)(A), which mandates the party whose conduct necessitated the motion to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. The Court finds that Defendant's non-party subpoenas were shown to be substantially justified pursuant to Federal Rule of Civil Procedure 37(a)(5)(A)(ii) and DENIES any request for attorney's fees. Plaintiff has also asked that any information produced from this subpoena be protected under seal from public disclosure. To address this concern, the Court will entertain a motion for a protective order, including an agreed proposed protective order. The court notes that any such motion will only be granted if the proposed protective order comports with standards set forth in Citizens First National Bank of Princeton v. Cincinnati Insurance Company, 143 F.3d 943 (7th Cir. 1999). *5 Lastly, the Court acknowledges Plaintiff's pending Motion for Relief from the Case Management Deadline of June 18, 2018 for Completion of Discovery, filed on June 15, 2018 and fully briefed as of June 29, 2018. Over Defendant's objections, the Court finds good cause to extend the discovery deadline in this case to allow time for the parties to pursue remaining discovery resulting from the Court's decision on Plaintiff's motion to quash as well as other matters—some of which should have been addressed in the three and a half months since Plaintiff filed her motion to extend the discovery deadline. Accordingly, the Court GRANTS Plaintiff's motion. [DE 31]. The deadline for the close of all discovery is EXTENDED until November 30, 2018. SO ORDERED.