JAMES P. O'HARA, Magistrate Judge.
The case is before the undersigned U.S. Magistrate Judge, James P. O'Hara, on defendants' motion for a protective order
For a very short period of time, from September 2011 until April 30, 2012, plaintiff worked for defendant Tortoise Capital Advisors, LLC ("Tortoise"), an investment management firm, as a vice president for business development. Following plaintiff's termination, he filed a federal lawsuit, asserting religious and national-origin discrimination claims against Tortoise pursuant to 42 U.S.C. § 2000e ("Title VII"), and claims against two individual defendants affiliated with Tortoise, pursuant to 42 U.S.C. § 1981. On February 24, 2014, plaintiff was granted leave to amend his complaint to add a claim against defendants for retaliation under the Dodd Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank Act")
In December 2014, plaintiff signed and issued subpoenas to third parties requesting documents regarding defendants' alleged "securities law and other federal law violations."
Morgan Stanley and Philadelphia both served formal written objections, asserting that the subpoenas are overly broad, burdensome, and seek information that is privileged and irrelevant to the parties' claims and defenses.
After meeting resistance from the subpoenaed nonparties, plaintiff moved to amend his civil cover sheet.
Federal Rule of Civil Procedure 26(c) provides that a court may, upon a showing of good cause, "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order has the burden to show good cause for it.
In their motion, defendants assert that plaintiff should not be permitted to engage in overly broad and harassing third-party discovery that is irrelevant to his claims. Defendants assert that plaintiff is attempting to broaden discovery beyond the second amended complaint by requesting documents that relate to withdrawn or precluded securities-based claims (i.e., his former RICO claims). Defendants explain that the third-party discovery sought by plaintiff has no bearing on his existing causes of action, all of which are employment-based claims. Yet, plaintiff admits that he is seeking discovery from these nonparties regarding securities law and other federal law violations. Defendants assert that the subpoenaed nonparties are valued clients with whom they have business relationships. Further, defendants insist that the harassment and annoyance of these nonparties is unjustified and must be stopped. Defendants point to the e-mail plaintiff sent to Mr. Sena to show how plaintiff is "annoying, harassing, intimidating and threatening Tortoise's clients and interfering with its business relationships without cause."
In his response, plaintiff asserts that the purpose of his opposition is: (1) to establish that his subpoenas conform with the discovery rules; (2) to show the court how defendants are using this motion as a way to manage public relations; and (3) to set the record straight about defendants' alleged lies in this matter.
Rule 26(c) states that a motion for protective order "must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action."
Here, plaintiff asserts that defendants did not confer or attempt to confer with him to resolve the dispute prior to filing their motion. Defendants respond that by reviewing plaintiff's response to their motion in conjunction with plaintiff's e-mail exchanges with the subpoenaed nonparties, it is clear that any such conferring would have been futile. Further, defendants assert that the recipients of the subpoenas already conferred in good faith with plaintiff and informed defense counsel of the same.
Although the court could deny defendants' motion for failure to sufficiently confer, given the particular circumstances of this case, the court declines to do so and will decide the motion on the merits. Based on the parties' submissions, it is clear that plaintiff has conferred with the subpoenaed nonparties. Additionally, the parties appeared before the undersigned for an informal telephone status conference
Next, plaintiff asserts that the court should deny defendants' motion for failure to show good cause. Plaintiff argues that defendants' representations in their motion regarding third-party harassment are false. Plaintiff insists that defendants' real reason for filing the motion is "to evade discoverable information that directly leads to the veracity of plaintiff's allegations and claims."
The court disagrees with plaintiff. Defendants have set forth specific facts to show how plaintiff's attempt to conduct significant discovery, through third-party subpoenas, on areas outside the scope of appropriate discovery has and will embarrass, harass, and annoy defendants and nonparties. The threatening statements already made by plaintiff to Mr. Sena and any like behavior by plaintiff likely would have an adverse impact on defendants' business relationships. In his response, plaintiff states that conducting depositions and serving discovery on these nonparties is necessary to counter any summary judgment motions or dispositive motions by defendants and he intends to do both. Plaintiff's motion is chocked full of inflammatory language accusing defendants of actions and behavior that is irrelevant to the pending claims in this action. Based on the actions already taken by plaintiff and his stated intent to conduct like discovery in which defendants and/or nonparties are likely to be embarrassed or harassed, defendants have shown good cause for the entry of a protective order.
Although relevancy is not a basis for a protective order,
Plaintiff's second amended complaint alleges that defendants violated the Dodd-Frank Act by retaliating against him after he reported their violations of securities laws. As previously discussed in the court's order regarding plaintiff's motion for leave to file second amended complaint,
Plaintiff's retaliation claim under the Dodd-Frank Act is an employment-based claim. The information plaintiff has requested regarding Tortoise's certification as a minority or disadvantaged enterprise, or information regarding Tortoise's so-called "covered call strategy" has no bearing on or relevancy to plaintiff's remaining claims. Even if the court adopted plaintiff's suggested-authority out of the District of Colorado regarding the elements of a Dodd-Frank claim (which it declines to do so at this time),
Plaintiff argues that if a protective order is entered and he goes without the information that he seeks, defendants will win a dispositive motion on the Dodd-Frank Act claim. However, the information plaintiff seeks will have no effect on the outcome of such a motion. Defendants have already indicated that their arguments on the Dodd-Frank Act claim include that plaintiff does not qualify as a whistleblower because he only reported his complaints internally and that Dodd-Frank does not provide for individual liability, such that plaintiff should not be permitted to name individuals as defendants in this claim. In any event, the discovery plaintiff seeks from third parties regarding alleged securities-based violations has no relation or relevancy on his narrow Dodd-Frank Act claim and would have no impact on the parties' arguments in a dispositive motion.
In consideration of the foregoing, the court grants defendants' motion for a protective order. For good cause shown, plaintiff is prohibited from seeking discovery about alleged securities-based improprieties or violations from nonparties that is irrelevant to his pending claims and similar to the information requested in the three already-issued subpoenas.
Plaintiff is hereby informed that, within fourteen days after he receives this order via CM/ECF, he may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file written objections to this order in a motion for review of this order. Plaintiff must file any objections within the fourteen-day period if he wants to have appellate review of this order. If plaintiff does not timely file his objections, no court will allow appellate review.
IT IS SO ORDERED.