Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS MOTION FOR PROTECTIVE ORDER REGARDING SUBPOENA FOR DOCUMENTS

Plaintiff Marcela Johnson respectfully moves this Court pursuant to Rule 26(c), Fed. R. Civ. P., for an order prohibiting the Custodian of Records for the City of Phoenix Police Department from providing documents in response to the Subpoena for Documents ("Subpoena") issued by Defendant Charles Schwab & Co., Inc. ("Schwab"). The Subpoena is overly broad and not reasonably calculated to lead to the discovery of admissible evidence and seeks documents that would cause embarrassment and annoyance and would invade Ms. Johnson's privacy. This motion is accompanied by the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES Factual Background In about 2004, Ms. Johnson applied for a position as police officer with the City of Phoenix Police Department ("Police") and began a series of required tests. In her Supplemental Response to Schwab's First Set of Non-Uniform Interrogatories, Ms. Johnson informed Schwab that she had applied with the Police, but was not offered a position. On March 10, 2006, Schwab issued a subpoena to the Police seeking "any and all file(s) regarding Ms. Johnson ... including, but not limited to: ... all correspondence
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between the Phoenix Police Department and Ms. Johnson, interview notes, evaluations, tests and test results, whether written, physical, oral, or polygraph, or other documents in any written form." See Subpoena attached as Exhibit A. II. ARGUMENT Schwab is entitled to non-privileged material that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1). "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable." Fed. R. Evid. 401. The information sought should be "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The Subpoena is overly broad, does not seek relevant evidence, and is not reasonably calculated to lead to the discovery of admissible evidence. As an initial matter, Schwab has not listed the Custodian of Records or any person from the Police on its witness list. The Subpoena is nothing more than a fishing expedition for irrelevant documents that Schwab hopes will paint Ms. Johnson in a bad light. Throughout this lawsuit, instead of addressing the shortcomings in its defenses, Schwab has focused entirely on attacking Ms. Johnson's credibility via her actions and behavior after Schwab fired her. This Court should invoke the Federal Rules of Civil Procedure to prevent Schwab from using the discovery process to engage in wholesale searches for evidence that might serve to limit damages for its wrongful conduct. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362-63 (1995); Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004) (district courts need not condone the use of discovery to engage in fishing expeditions). The Subpoena is overly broad in that it seeks "any and all file(s) regarding Ms. Johnson" or "all correspondence between the [Police] and Ms. Johnson."1 While Schwab
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Based on this Court's January 5, 2006, ruling, Schwab is not entitled to documents relating to "arrests, criminal charges, indictments and/or prosecutions in which [she was] identified as the arrestee, suspect, and/or defendant." See Order dated January 5, 2006 at
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is entitled to certain information regarding Ms. Johnson's application for employment with the Police, it is certainly not entitled to every piece of information regarding Ms. Johnson. Additionally, documents such as "interview notes, evaluations, tests, and test results"2 are not relevant to the issue in this case - whether Ms. Johnson, a Hispanic female, was terminated for reporting an incident of sexual harassment. The request is sought only to embarrass, annoy, and invade Ms. Johnson's privacy. Schwab's counsel, Karen Gillen, informed Ms. Johnson's counsel that Schwab sought interview notes and tests results to attack Ms. Johnson's credibility. It is Schwab's belief that any findings or conclusions made by interviewers or employees of the Police regarding Ms. Johnson's credibility can be introduced at trial to establish Ms. Johnson's lack of credibility. Schwab's defense in this action is based on the theory that Ms. Johnson was terminated for making a "false" report of sexual harassment. Evidently, Schwab seeks to show that Ms. Johnson's dishonesty, if any, 2 years after she was terminated is evidence that she fabricated a claim of sexual harassment. However, evidence, if any exists, that Ms. Johnson lied during her application process with the Police is not relevant under Fed. R. Evid. 401, nor is it admissible under Rules 403 or 404, Fed. R. Civ. P. Similarly, such evidence is not likely to lead to the discovery of admissible evidence. Finally, such "evidence" is irrelevant and inadmissible in a retaliation action, such as this. See Carmen v. San Francisco United School District, 237 F.3d 1026, 1028 (9th Cir. 2001) (whether claim had merit is irrelevant because an employer may not retaliate against someone whether or not claim is meritorious). See also Gomez v. Moyo, 40 F.3d 982 (9th Cir. 1995); Trent v. Valley Electric Association, Inc., 41 F.3d 524 (9th Cir. 1994). Docket No. 88. 2 On March 15, 2006, Schwab's counsel informed Ms. Johnson's counsel that Schwab was not seeking physical test results or other medical information and would either send a letter to the Police or would amend the Subpoena. If such a letter is not sent or the Subpoena is not amended, Ms. Johnson asks this Court to enter a protective order preventing the disclosure of Ms. Johnson's physical test results or medical records as an invasion of privacy. Ms. Johnson did not seek medical care for issues related to this lawsuit and has, therefore, not placed her medical history at issue.
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Furthermore, polygraph results to establish credibility, or lack thereof, are generally not admissible in this Circuit absent stipulation. See U.S. v. Ramirez-Robles, 386 F.3d 1234 (9th Cir. 2004); Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002); U.S. v. Campos, 217 F.3d 707 (9th Cir. 2000); U.S. v. Benavidez-Benavidez, 217 F.3d 720 (9th Cir. 2000); U.S. v. Cordoba, 194 F.3d 1053 (9th Cir. 1999); U.S. v. Orians, 9 F.Supp.2d 1168 (D.Ariz. 1998). Finally, the Employee Polygraph Protection Act restricts employers from disclosing information obtained from an employee's polygraph test. Orr, 285 F.3d at 785, citing 29 U.S.C. § 2008. An employer includes a prospective employer such as the Police. 29 U.S.C. § 2001. Schwab is entitled to the dates on which Ms. Johnson applied for and was denied a position with the Police. Schwab is also entitled to copies of Ms. Johnson's application and resumes. Anything beyond is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. III. CONCLUSION For the foregoing reasons, Ms. Johnson respectfully requests this Court to enter an order prohibiting the Police from disclosing information or documents other than the date on which Ms. Johnson applied for a position with the Police and the date on which she was turned down for that position and copies of her application and resumes. RESPECTFULLY SUBMITTED this 16th day of March, 2006. QUARLES & BRADY STREICH LANG LLP

By

s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

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I hereby certify that on March 16, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic filing to the following CM/ECF registrants: Joseph T. Clees Karen Gillen Michelle Ganz Ogletree, Deakins, Nash, Smoak & Stewart, P.C. A copy of this document was provided to The Honorable John W. Sedwick s/Dawn C. Valdivia
QBPHX\115637.00002\1997195.2

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