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IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CALVIN FLUKER, RICARDO

WRIGHT, BERYL JACKSON,

TRACEY MARTIN, LISA

PITCHFORD, KIMBERLY LOVE,

RESHANDA BROWN,

PLAINTIFFS,

v.

U.S. FOODSERVICE, INC. and

U.S. FOODSERVICE, INC. -

MONTGOMERY DIVISION,

Defendants.

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) CIVIL ACTION NO.:

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) 2:06cv785-MHT

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MOTION TO QUASH AND/OR MODIFY SUBPOENA

COMES NOW, Calvin Fluker, a Plaintiff in the above-captioned matter, and

movesthis Court to quash the subpoena sent by the Defendant to Glover/Auten Food

Service. In support of this motion, the Plaintiff states the following:

1. Introduction

On December 6, 2007, the Defendant issued a subpoena to Glover/Auten Food

Service which is Calvin Fluker’s current employer. The subpoena requests that

Glover/Auten Food Service produce all of Plaintiff Calvin Fluker’s

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employment/personnel records. (See, Exhibit A - Subpoena.).

PlaintiffCalvin Flukerresigned fromhis position with Defendant on March 23,

2007, and went to work for Glover/Auten Food Service, his current employer in

April 2007 . Plaintiff is not maintaining a constructive discharge claim in the abovecaptioned matter. Therefore, Plaintiff’s personnel/employment records with his

current employer, which would be relevant if backpay was at issue, are not relevant.

Attempts to confer with opposing counsel have not resolved this dispute and

Plaintiff moves to quash this subpoena under Federal Rule of Civil Procedure 45, or

in the alternative, Plaintiff seeks a protective order under Federal Rule of Civil

Procedure 26.

2. Standing

Calvin Fluker has a personal right with respect to information contained in his

employment/personnel records with his current employer. Generally, an individual

does not have standing to challenge a subpoena served on another, unless that

individual has a personal right or privilege with respect to the subject matter of the

subpoena. See Washington v. Thurgood Marshall Academy, 230 F.R.D. 18, 22

(D.C.Cir.2005). In considering whether a party had standing to move to quash a

subpoena duce tecum, courts have repeatedly found an individual possesses a

personal right with respect to information contained in employment records and, thus

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hasstanding to challenge such a subpoena. See, Barrington v. Mortgage IT, Inc.,slip

copy, 2007WL4370647 (S.D. Fla. 2007);Chamberlain v.Farmington SavingsBank,

2007 WL 2786421 (D. Conn. Sept 5, 2007); Richards v. Convergys Corp., 2007 WL

474012 (D.Utah Feb. 7, 2007). These records likely contain highly personal

confidential information, such a social security numbers, medical information

protected from disclosure under various federal and state laws, payroll information,

income tax information, and information aboutfamilymembers.Therefore, Plaintiffs’

personal privacy concernssurrounding the employmentrecordsissufficient to confer

standing to move to quash the subpoenas duces tecum.

3. The Subpoena Is Overboard and Seeks Irrelevant Information

Rule 45 subpoena incorporates the provisions of Rules 26(b) and 34.

Accordingly, the Court must determine whether the subpoena duces tecum at issue

seeksirrelevant information and/oris overly broad under the same standardsset forth

in Rule 26(b) and as applied to Rule 34 requests for production.

A review of the subpoena at issue shows that it is not narrowly tailored to

obtain relevant information. (See Exhibit A - Subpoena). The subpoena seeks

essentially every document in Glover/Auten Food Service’s possession that relates

in any manner to Calvin Fluker. Further, Defendant’s subpoena seeks irrelevant

matterincluding, but not limited to, Fluker’s current pay information. Plaintiff Fluker

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voluntarily resigned fromhis position with U.S. Foodservice and Defendant does not

require information about his present salary because there is no claim that backpay

accrues beyond the date of his resignation. Consequently, the information being

sought is not relevant. Fluker’s salary information is a private matter which should

not be invaded without a clear purpose.

The subpoena also seeks “any and all evaluations, performance reviews or

otherrecords critiquing the employee’s performance during his/her employment, and

any and all counseling, warnings, corrective actions other records concerning

discipline or discharge of the employee.” This information is not reasonably

calculated to lead to the discovery of admissible evidence in this case. Fluker’s job

performance with a different employer in a different position does not tend to make

any fact at issue in the instant case more or less probable.

Ultimately, this subpoena amounts to a fishing expedition to harass Plaintiff

and to interfere with Plaintiff’s current employment relationship and to deter himand

other plaintiffsfrom pursuing their claimsin this case. The documentssought are not

relevant to Plaintiff’s or Defendant’s claims and/or defenses.

4. Annoyance, Embarrassment, Oppression and Undue Burden

The subpoena to Plaintiff’s current employer may cause problems in the

employment relationship. Fluker’s employer, whether previously aware of the

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litigation or not, may resent the burden of complying with the discovery request,

especially one as overbroad as this one. At least one court has recognized that an

employee “has a legitimate concern that a subpoena sent to their current employer

under the guise of a discovery request could be a tool for harassment and result in

difficulties for her in her new job.” Graham v. Casey’s General Stores, 206 F.R.D.

251, 256 (S.D.Ind 2002).Plaintiff contends that discovery of records from present

employer has put an undue burden on Plaintiff and may have an unnecessarily

negative effect on his employment situation as well as future prospects.

5. Alternatively, Fluker asksthat the Court engage in an in camera inspection

of the materialssought prior to production or otherwise modify the subpoena to

include only requests reasonably calculated to lead to admissible evidence.

Although this alternative will notspare the potential negative consequences of

having his employer burdened with responding to the subpoena, Fluker requests that

this Court review the materials produced in camera prior to production in order to

maximize Fluker’s privacy interests without interfering with the Defendant’s ability

to collect truly pertinent information.

WHEREFORE PREMISES CONSIDERED, the Plaintiff respectfully

requests that the subpoenas at issue be quashed. In the alternative, the Plaintiff

respectfully requests that this Court enter an Order modifying the subpoena to limit

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its scope, or Order an in camera inspection of the documents sought prior to their

production to U.S. Foodservice.

Respectfully Submitted,

/s/ Ethan R. Dettling

Jon C. Goldfarb

Ethan R. Dettling

Counsel for Plaintiff

OF COUNSEL:

WIGGINS, CHILDS, QUINN & PANTAZIS, LLC

301 19th Street North

Birmingham, Alabama 35203

Telephone No.: (205) 314-0500

Facsimile No.: (205) 254-1500

CERTIFICATE OF SERVICE

I hereby certify that I have filed a true and correct copy of the above and

foregoing document the Clerk of Court using the CM/ECF system which will

electronically notify the following counsel of record:

Tammy L. Baker, Esq.,

Jackson Lewis, LLP

First Commercial Bank Building

800 Shade Creek Parkway Suite 870

Birmingham, Alabama 35209

Telephone No.: (205) 332-3106

Facsimile No.: (205) 332-3131

on this the 22

nd

day of January, 2008.

/s/Ethan R. Dettling

OF COUNSEL

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