Jorge Rudelli v. Eli Lilly & Company Civil Action No. 19-07464 (BRM) (ZNQ) United States District Court, D. New Jersey Filed November 13, 2020 Quraishi, Zahid N., United States Magistrate Judge LETTER ORDER *1 Dear Counsel: This matter comes before the Court upon a discovery dispute between the parties. (ECF Nos. 35, 37.) Defendant Eli Lilly & Company (“Eli Lilly”) objects to Plaintiff Jorge Rudelli's (“Rudelli”) intent to subpoena subsequent employers of several former Eli Lilly employees who are not parties to this action. (Def.’s October 7, 2020 Letter 1, ECF No. 35.) Defendant raises three issues before the Court: (1) whether Defendant has standing to object to the subpoenas, (2) whether the subpoenas seek relevant information or likely admissible evidence, and (3) whether the subpoenas for personnel records are objectionable because they seek to intrude into Defendant's former employees’ privacy interests. (Id. at 2-5.) On September 25, 2020, Plaintiff informed Defendant that he intended to serve subpoenas to produce documents on the subsequent employers of former Eli Lilly employees Brian Goss, Henry Hoehn, and Joseph Papini. (Id. at 1.) The former employees and their subsequent employers are not parties to this action. Each subpoena requests the following: 1. Any and all documents contained in the company's personnel file or human resources file for employee [Brian Goss, Henry Hoehn, and Joseph Papini] related to complaints of discrimination, harassment, and inappropriate conduct including but not limited to disciplinary records, performance reviews, incident reports and termination reports. 2. Any and all communications related to complaints of discrimination, harassment, and inappropriate conduct concerning [Brian Goss, Henry Hoehn, and Joseph Papini]. (Id. at 2.) As a preliminary matter, the Court must determine whether Defendant has standing to object to the subpoenas on behalf of the third parties. Defendant argues that it has standing to object to Plaintiff's subpoenas. (Id. at 2.) Plaintiff argues that Defendant does not have standing to object to the subpoenas because the subpoenas are directed to third parties and seek documents in which Defendant “has no legally protectable interest.” (Pl.’s October 15, 2020 Letter 3, ECF No. 37.) Plaintiff further argues that the subpoenas do not seek information from or pertaining to Defendant. (Id.) Additionally, Plaintiff argues that Defendant's “[c]ounsel does not represent Papini or Goss in any capacity and has no legal right to make any arguments on their behalf.” (Id.) Moreover, Plaintiff argues that although Defendant's counsel will “represent Hoehn for purposes of his subpoenaed deposition, Hoehn does not have a legally protectable interest in preventing Plaintiff from obtaining documents in his personnel file that may be relevant to this claim.” (Id.) Ordinarily, “a party does not have standing to quash a subpoena served on a third party.” Thomas v. Marina Associates, 202 F.R.D. 433, 434 (E.D. Pa. 2001) (citing Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997). However, “[a] party to an action has standing to quash or modify a non-party subpoena where the party seeking to quash or modify the subpoena claims a privilege or privacy interest in the subpoenaed information.” Malibu Media, LLC v. Doe, 2015 WL 7776895, at *3 (D.N.J. Dec. 2, 2015). A party seeking to quash a subpoena does not have standing to assert a claim of privilege where the serving party is seeking information about persons other than the objecting party itself. See Thomas, 202 F.R.D. at 434. *2 Here, Defendant has no relationship with any of the subpoenaed non-party employers. Defendant cannot object to the subpoenas on privilege grounds as Defendant does not assert that the requested information is privileged, and the subpoenas are not seeking any information regarding or involving Defendant. Additionally, Defendant does not have a privacy interest in the subpoenaed information. The subpoenas solely seek information from the subsequent employers regarding their own personnel files and communications concerning the conduct of Goss, Hoehn, and Papini. Moreover, Defendant does not provide any legal basis to support its argument that it has standing to object on behalf of the third parties. Accordingly, the Court finds that Defendant has no standing to object to the third-party subpoenas. Nonetheless, Defendant additionally argues that it “has standing to seek a protective order to prevent requests directed to the non-party [subsequent] employers of Goss, Hoehn, and Papini” pursuant to Fed. R. Civ. P. 26(c). (Def.’s October 7, 2020 Letter 2.) A party may move for a protective order for a subpoena issued to a non-party if the party's interests “are jeopardized by discovery from a third party” or if the discovery sought from a third party is irrelevant. EEOC v. United Galaxy, 2011 WL 4072039, at *4 (D.N.J. Sept. 13, 2011); see also Lilac Dev. Grp., LLC v. Hess Corp., 2016 WL 3457012, at *2 (D.N.J. June 20, 2016). Although no such motion or request is presently before the Court, such motion would be moot because the Court finds that the subpoenaed information is relevant, and Defendant's interests are not jeopardized. Defendant argues that the subpoenaed information is irrelevant because: (1) Defendant “struggles to understand how any complaints lodged against former employees with their subsequent employers has anything to do with Rudelli's claims that Lilly discriminated and retaliated against him years ago,” and (2) the “alleged conduct of Goss, Hoehn, or Papini during their employment with other employers after their employment with Lilly ended is simply not a ‘material fact in issue’ in this case, and any ‘chain of logic’ [ ] depends on many inferences that they are predisposed ‘to do bad acts.’ ” (Def.’s October 7, 2020 Letter 3.) In his response, Plaintiff argues that the subpoenaed information is relevant to this action to show intent and/or pretext. (Pl.’s October 15, 2020 Letter 4.) Plaintiff explains that “[t]he disputed issue is whether the Former Supervisors were acting with prohibited animus when they performed [the alleged] adverse employment actions in violation of the New Jersey Law Against Discrimination.” (Id.) Evidence is relevant if: “(a) it has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Additionally, although Fed. R. Evid. 404(b), prohibits evidence of other bad acts offered for the purpose of establishing propensity, such evidence can be offered for other purposes to include intent. To be clear, the issue before this Court at this juncture is one of discoverability, not admissibility. The Court finds that the subpoenaed information is relevant and discoverable as to intent. The subpoena is narrowly tailored to seek information specific to complaints of discrimination, harassment, and inappropriate conduct. Whether Goss, Hoehn, and Papini engaged in the alleged actions is not in dispute, but rather, whether they acted with discriminatory intent while employed by Defendant. As such, the subpoenaed information concerning Gross, Hoehn, and Papini is being sought to establish “[the supervisors’] intent when [they] acted, or more precisely, whether the reason offered by [the supervisors] was pretextual.” Ansell v. Green Acres Contracting Co., 347 F.3d 515, 522 (3d Cir. 2003). At this time, it is unknown whether any responsive information exists, and whether such evidence would ultimately be admissible is an issue left for another day. *3 Additionally, the subpoenas do not seek information concerning or relating to Defendant. Nor does Defendant provide the Court with any factual or legal basis that would support a finding that its interests are jeopardized by the subpoenaed information. In sum, 1. Defendant's objection to Plaintiff's intent to subpoena the subsequent employers of Brian Goss, Henry Hoehn, and Joseph Papini is overruled; and 2. To the extent Defendant intended to move for a protective order, such request is denied as moot since the requested information is relevant and Defendant has failed to demonstrate its interests are jeopardized.