Free Uncategorized - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 M arcela Johnson, 9 Plaintiff, 10 vs. 11 12 13 14 15 16 Pending before the Court is Plaintiff's M otion for Protective O rder prohibiting the 17 Custodian of Records for the City of Phoenix Police Department (P olice Department) from 18 providing documents in response to Defendant 's Subpoena for Documents (Subpoena). 19 (Dkt. 122). The M otion is fully briefed. 20 BACKGROUND 21 O n A p ril 22, 2004, Plaintiff filed this case alleging that Defendant failed to remedy 22 known instances of sexual harassment, discriminated against her because of her race and 23 terminated her in retaliation for her filing a sexual harassment comp laint. (Dkt. 1). Sometime 24 aft er her t ermination, Plaintiff applied for a position with the Police Department. (Dkt. 122 25 at p g. 1). On M arch 10, 2006, Defendant obtained a subpoena requesting that the Police 26 Department produce: 27 28 True and correct copies of any and all document s referencing or relating t o an application for employment and/or for contract Case 2:04-cv-00790-EHC Document 170 Filed 11/30/2006 Page 1 of 5 Charles Schwab Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0790-PHX-EHC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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services by M arcela A. Johnson, Social Security No. XXXXXX-XXXX. These documents should include, but are not be limited to: 1. Complete copy of any and all file(s) regarding M s. Johnson, whether maintained by Human Resources or other administrative department, including, but not limited to: employment applications, resumes, any and all correspondence between the Phoenix Police Department and M s. Johnson, interview not es, evaluations, tests and test results, whether written, phy s ical, oral or polygraph, or other documents in any written form. (Dkt. 122, Subpoena In A Civil Case). Plaintiff has filed a M otion for Protective Order to prohibit the Police Department from providing certain documents in response to Defendant's Subpoena. (Dkt. 122). DIS CUS S ION A court may enter orders designed to protect the parties during the discovery process. See Fed. R. Civ. P . 26(c). M otions for protective orders asserting good cause are entered when "justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense."

Foltz v. State Farm Mut. Auto.

Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003) (citations omitted). Plaintiff asks the Court to limit the Subpoena t o copies of Plaintiff's applications and res umes, the dates on which she applied and was turned down and documents that reflect the reason s he w as not selected for employment. Plaintiff argues that the Court should

grant her M otion for Protective Order because the Subpoena is overly broad and not reasonably calculated to lead to the discovery of admissible evidence and seeks

documents that could cause embarrassment and annoyance and invade Plaintiff's privacy. A. Overly Broad Plaintiff argues the Subpoena is overly broad because it seeks "any and all file(s) regarding [Plaintiff]" or "all corres p ondence between the [Police Department] and [Plaintiff]." Plaintiff's concern is that Defendant, while entitled to certain information

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regarding Plaintiff's employment application with the Police Department, is not entitled to all of the requested information regarding Plaintiff. (Dkt. 122 at pg. 2). Although the Subpoena does include seemingly all-inclusive language, it als o states that Defendant is requesting "copies of any and all documents referencing or relating to an application for employmen t an d/or for contract services by [Plaintiff]." Defendant

has represented in its Response that it only intended to reques t employment related information from the Police Department which would not include any documents relat ing to "arrests, criminal charges, indictments and/or prosecutions in which [she was] identified as the arrestee, suspect, and/or defendant." (Dkt. 124 at pg. 5). Subpoena is not overly broad. The Court finds that the

The Court will limit the Subpoena to exclude arrests,

criminal charges, indict ments and/or prosecutions are not within the scope of the Subpoena. B. Reasonably Calculated to Lead to The Discovery of Admissible Evidence Plaintiff also argues that a protective order should be entered because many of the documents sought by Defendant are not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff specifically objects to the relevance of interview notes, F ederal Rule of Civil Procedure 26(b) provides that

evaluations, tests and test results.

"[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to [a] claim or defense...[r]elevant information need not be admissible at trial if the dis covery appears reasonably calculated to lead to the discovery of admissible evidence." Defendant claims that all of the documents are relevant to Plaintiff's request for damages because if Defendant is found liable to Plaintiff any damages may be reduced or eliminated if Plaintiff did not make good faith efforts to mitigate her damages. Defendant also argues that they are entitled to discover information that relates to her credibilit y as a witness. Finally, Defendant argues that any interview not es or ap plications may likely include Plaintiff's explanation with respect to why she was terminated from her previous position. The Court finds that the interview notes , evaluations, written and oral tests

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and test results are discoverable for the reasons Defendant argues. The Court does not find the results of the polygraph and medical t ests relevant to these proceedings. The polygraph test itself will not be admissible at trial t o impeach Plaintiff's credibility as a witness. See U.S. v. Ramirez-Robles, 386 F.3d 1234 (9th Cir. 2004) (holding probat ive value of polygraph test was outweighed by its prejudicial impact). Further, whether Plaintiff

passed a medical examination or not is irrelevant t o whether she made good faith efforts to mitigate her damages. And finally, neither the results of the poly grap h t es t nor the

p hysical test are likely to lead to the discovery of evidence relevant to these p roceedings . D efendant has agreed to exclude from the Subpoena any information relating t o Plaintiff's medical testing.1 Additionally, because the Court has found the polygraph and

medical tests irrelevant to these proceedings, the Court will enter a protective order excluding those matters from the Subpoena. C. S tipulation to the Confidentiality of the Documents P laint iff argues that the Subpoena covers material that is embarrassing to her. Court will order that the documents be used only in connection with this case. Accordingly, IT IS ORDERED that Plaintiff's "M otion for Protective Order Regarding Subpoena for Documents" is GRANTED IN PART and DENIED IN PART to the extent that Defendant's Subpoena for Documents is limited to exclude: (1) any documents relating to arrests, criminal charges, indictments and/or T he

prosecutions in which Plaintiff is identified as the arrestee, suspect, and/or defendant; (2) any documents relating to Plaintiff's physical t es t results or other medical information; and (3) any documents relating to Plaintiff's polygraph test results.

Defendant has informed t he P olice Department that the Subpoena excludes documents relating to Plaintiff's medical testing. (Dkt. 124, ex. B). -4Filed 11/30/2006

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IT IS FURTHER ORDERED that Defendant's use of t he documents produced in compliance with the Subpoena for Documents is limited to use in this case. IT IS FURTHER O RD ERED that Defendant file under seal any documents produced by the City of Phoenix Police Department pursuant to the Subpoena for Documents. DATED this 29th day of November, 2006.

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