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DeSanzo v. AHS Southcrest Hospital, LLC

United States District Court, N.D. Oklahoma

June 3, 2019

MAXINE Y. DESANZO, Plaintiff,
v.
AHS SOUTHCREST HOSPITAL, LLC, Defendant.

          OPINION AND ORDER

          FRANK H. MCCARTHY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff&#39');">39;s Motion to Quash Subpoena to Hydro Extrusion, [Dkt. 31');">31], for Protective Order, [Dkt. 32], and Defendant&#39');">39;s Motion to Compel or in the Alternative, enjoin Plaintiff from Interference with Subpoenas and for Sanctions, [Dkt. 39');">39, 4');">40], are fully briefed and before the undersigned United States Magistrate Judge for decision.

         Background

         Plaintiff&#39');">39;s employment at Defendant hospital was terminated. Plaintiff brought this lawsuit alleging age discrimination and retaliation for making an EEOC complaint. She seeks back pay, lost benefits, and front pay until retirement. Since her employment was terminated, Plaintiff moved to Arizona with her husband John DeSanzo when he took a job in that state. Defendant asserts that the move to Arizona cut off Plaintiff&#39');">39;s claim for front pay. Plaintiff asserts that she would not have moved if she were still working for Defendant. She points out that she did not move to Texas when her husband took a job there.

         Defendant issued subpoenas to Mr. DeSanzo&#39');">39;s Arizona employer, Hydro Extrusion North America, LLC (Hydro) and his former employers Ascend Custom Extrusions (Ascend) and IPSCO Tubulars LLC (IPSCO) seeking information about the terms of Mr. DeSanzo&#39');">39;s employment, compensation, and benefits. Plaintiff moved to quash the Hydro subpoena and instructed IPSCO not to respond to the subpoena without a court order. Plaintiff did not move to quash the IPSCO subpoena. Mr. DeSanzo is not a party to this lawsuit and he did not object to any of the subpoenas. Neither Hydro nor IPSCO have lodged objections to the subpoenas. IPSCO refuses to respond to the subpoena, absent a court order. Plaintiff&#39');">39;s counsel have not rescinded the instructions to IPSCO.

         Motion to Quash Subpoena to Hydro and for Protective Order [Dkt. 31');">31, 32]

         Defendant issued a subpoena to Mr. DeSanzo&#39');">39;s current employer, Hydro, seeking production of documents pertaining to Mr. DeSanzo&#39');">39;s employment, such as: offer letter, contract, hiring documents, starting salary, pay structure including bonuses, potential for bonuses, and expected changes in pay.[1]

         Although neither Hydro nor Mr. DeSanzo object to the subpoena, Plaintiff argues that she has a “personal right” to object to the subpoena of her husband&#39');">39;s employment information. Plaintiff objects on the basis that the subpoena is irrelevant on its face as she claims Mr. DeSanzo&#39');">39;s employment records have no bearing on her lost wages, mitigation efforts, infliction of emotional distress claim, or any other factor relevant to the claims. [Dkt. 31');">31, p. 7]. Alternatively, Plaintiff argues that the marginal relevance of the documents would be outweighed by the harm of the disclosure. According to Plaintiff, Hydro is involved in government contracts and “Mr. DeSanzo believes that [Hydro] is wary of its employees being involved in any sort of litigation.” [Dkt. 39');">39, p. 8]. Plaintiff argues the subpoena potentially puts Mr. DeSanzo&#39');">39;s employment at risk. Plaintiff further argues that the employment information is unnecessary as the DeSanzo&#39');">39;s tax returns have been produced.

         Defendant asserts that since the records being sought are not Plaintiff&#39');">39;s, and since Mr. DeSanzo has not joined the motion to quash, Plaintiff lacks standing to object to the subpoena and argues that the motion should be denied on that basis. Defendant further argues that the subpoena imposes no undue burden on Plaintiff, as she will not bear any expenditure of time or money in compliance with the subpoena. In addition, Defendant argues that the employment information is relevant to defenses to Plaintiff&#39');">39;s claim for lost wages. Defendant also states that the tax returns have not been produced for 2018 and further that Mr. DeSanzo&#39');">39;s employment with Hydro did not begin until August 2018, so the 2018 tax returns would contain little information about the current employment. Further, the 2018 tax returns will not contain the detail Defendant has requested in the subpoena.

         Plaintiff is seeking back pay and front pay. Defendant states it will have the burden to show Plaintiff failed to mitigate damages. On that point Defendant points out that although Plaintiff obtained full time employment, she quit that job after about a year and moved to Arizona with her husband. Defendant argues that, even if Plaintiff&#39');">39;s employment with Defendant had not been terminated, her employment would have ended in May 2018 when she moved to Arizona, which cuts off the back pay and front pay claims. Plaintiff testified at deposition that she would not have moved to Arizona if she had still been employed by Defendant. Defendant disputes this assertion and states that the information from Mr. DeSanzo&#39');">39;s employer will enable Defendant to develop arguments to refute Plaintiff&#39');">39;s claim she would not have moved to Arizona.

         Regardless of standing, the court finds that the motion to quash should be denied on its merits. There has been no showing that the subpoena imposes any burden on Plaintiff. Plaintiff&#39');">39;s comments about the possible impact on Mr. DeSanzo&#39');">39;s employment are speculative.[2] Mr. DeSanzo has not objected to the subpoena so there is no assertion that production of the information is objectionable to him. Given the fact that Plaintiff seeks back pay and front pay, and the possible impact Plaintiff&#39');">39;s move to Arizona may have on that claim, the court finds that information about Mr. DeSanzo&#39');">39;s job with Hydro is a fair area of inquiry for discovery purposes. Moreover, the court is not persuaded that tax returns are sufficient to provide the information Defendant seeks.

         Plaintiff&#39');">39;s Motion to Quash Subpoena to Hydro Extrusion, [Dkt. 31');">31], and for Protective Order, [Dkt. 32], are DENIED.

         Defendant&#39');">39;s Motion to Compel [Dkt. 39');">39]

         Defendant issued a subpoena to Mr. DeSanzo&#39');">39;s former employer, IPSCO. Defendant asserts that Plaintiff&#39');">39;s counsel have improperly interfered with the IPSCO subpoena. Defendant seeks an order compelling ...


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