United States District Court, E.D. North Carolina, Western Division
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
BOJANGLES' RESTAURANTS, INC., Defendant.
E. GATES MAGISTRATE JUDGE.
case comes before the court on the motion to quash a subpoena
and for a protective order (D.E. 18) by plaintiff United
States Equal Employment Opportunity Commission
("plaintiff or "EEOC"). Defendant
Bojangles' Restaurants, Inc. ("defendant")
opposes the motion. See D.E. 20. For the reasons set
forth below, the motion will be allowed and the subpoena will
be quashed without prejudice to its reissuance on the terms
case arises from alleged employment discrimination by
defendant against Jonathan Wolfe ("Wolfe"),
defendant's employee who plaintiff contends was subjected
to a hostile work environment because of her gender identity.
See generally Compl. (D.E. 1). Specifically, in its
complaint, plaintiff alleges that Wolfe identified as a
transgender female and defendant discriminated against her on
that basis. Id. ¶¶ 39, 42. Plaintiff also
alleges that defendant discriminated and retaliated against
Wolfe by involuntarily transferring her and terminating her
for complaining about the alleged harassment. Id.
¶ 49. In its complaint, plaintiff seeks injunctive
relief, compensatory damages, punitive damages, and the costs
of this action. Id. Prayer for Relief. Defendant
denies the material allegations in plaintiffs complaint.
See generally Ans. (D.E. 6).
ISSUANCE OF NONPARTY SUPBOENAS
April 2017, plaintiffs counsel sent an email to
defendant's counsel regarding the anticipated service of
nonparty subpoenas. 27 Apr. 2017 Email (D.E. 18-3). In it,
plaintiffs counsel requested that defendant
provide notice of its intent to serve and a copy of any
subpoena at least five full business days prior to service.
This short time frame will not burden [defendant] and will
provide [plaintiff] reasonable opportunity to review and take
any steps, if necessary to object. If [plaintiff] is not
permitted sufficient reasonable time to object, [plaintiff]
intends to seek the protection of the court.
Id. On 4 May 2017, plaintiffs counsel again emailed
defendant's counsel, renewing plaintiffs request for an
opportunity to review the substance of any subpoena prior to
service. 4 May 2017 Email (D.E. 18-4). Plaintiff noted that
it anticipated objecting to any subpoena issued to
Wolfe's current employer. Id.
May 2017 at 10:41 a.m., a notice of service of subpoenas,
accompanied by four nonparty subpoenas, was emailed to
plaintiffs counsel with an indication in the notice that the
subpoenas "will be served" on the third parties
identified. Brian Church Dec. (D.E. 20) ¶¶ 3, 4;
Notice of Service of Subpoenas (D.E. 20-1) 3-4. After sending
the email, the subpoenas were served by certified mail on the
nonparties that same day. Brian Church Dec. ¶ 5. The
subpoenas were issued to Wolfe's current employer, Worth
the Weight, Incorporated ("Worth the Weight") in
Fayetteville, North Carolina, and three of Wolfe's former
employers. See Worth the Weight Subpoena (D.E.
18-2). The Worth the Weight subpoena calls for production of
the requested documents on 26 May 2017 at defendant's
counsel's office in Charlotte, North Carolina.
Id. The documents sought from Worth the Weight
consist of "[a]ny and all personnel records, documents,
files or correspondence relating to Johnathan J. Wolfe of
Fayetteville . . . and Wolfe's employment with Worth the
Weight, including but not limited to job application, resume,
interview, positions held, rate(s) of pay and aggregate
moves to quash the subpoena served on Worth the Weight on
that grounds that it is procedurally defective, seeks
irrelevant and duplicative information, is overbroad, and
imposes an undue burden. Defendant opposes the motion. Worth
the Weight has not objected to the subpoena or provided
documents in response to it.
APPLICABLE LEGAL PRINCIPLES
of the Federal Rules of Civil Procedure permits a party to
issue subpoenas for the production of documents and other
things from nonparties. See Fed. R. Civ. P.
45(a)(1)(C); Fed.R.Civ.P. 34(c) ("As provided in Rule
45, a nonparty may be compelled to produce documents and
tangible things or to permit an inspection."); In re
Subpoena to Robert Kochan, No. 5:07-MC-44-BR, 2007 WL
4208555, at *4 (E.D. N.C. 26 Nov. 2007) ("Rule 45
expressly permits a party to issue discovery subpoenas to a
nonparty for documents and things in the nonparty's
possession, custody, or control.") (citing Fed.R.Civ.P.
45(a)(1)(C)). A subpoena is to be issued from the court where
the action is pending. Fed.R.Civ.P. 45(a)(2). Rule 45(a)(4)
requires that before serving a subpoena on a nonparty,
counsel must serve a notice and copy of the subpoena on each
party. Fed.R.Civ.P. 45(a)(4) ("If the subpoena commands
the production of documents, electronically stored
information, or tangible things or the inspection of premises
before trial, then before it is served on the person to whom
it is directed, a notice and a copy of the subpoena must be
served on each party.")- "This notification
requirement exists, in part, to allow a party to object to
both the substance of the subpoena and its service on the
nonparty." Solais v. Vesuvio's II Pizza &
Grill, Inc., No. 1:15-cv-227, 2015 WL 6110859, at *5
(M.D. N.C. 16 Oct. 2015). Rule 45(c)(2) provides that a
subpoena may command production of documents at a place
within 100 miles of where the subpoenaed person resides, is
employed, or regularly transacts business in person.