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U.S. Equal Employment Opportunity Commission v. Bojangles Restaurants, Inc.

United States District Court, E.D. North Carolina, Western Division

July 6, 2017




         This 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 set forth.


         I. CASE HISTORY

         This 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).


         On 27 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.

         On 5 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 wages." Id.

         Plaintiff 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.



         Rule 45 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. ...

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