IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DUKE TRAN,

 Plaintiff,

v.

WELLS FARGO BANK, N.A.,

 Defendant.

 3:15-cv-00979-BR

 OPINION AND ORDER

BROWN, Judge.

This matter comes before the Court on Plaintiff’s Motion

(#41) to Quash Subpoenas that Defendant proposes to issue to

obtain Plaintiff’s employments records from U.S. Bank, his

current employer, and medical records from Northwest Primary

Care, his primary-care provider. Plaintiff has also filed a

Motion to Strike as part of his Reply (#47) in Support of the

Motion to Quash in which he requests the Court to strike

Defendant’s Response to the Motion to Quash on the basis that it

was not timely filed.

For the following reasons, the Court DENIES both Motions.

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BACKGROUND

In June 2015 Plaintiff filed a Complaint against Defendant

and alleged claims for violation of the Family and Medical Leave

Act (FMLA) pursuant to 29 U.S.C. § 2601, et seq.; violation of

the Oregon Family Leave Act (OFLA) pursuant to Oregon Revised

Statute § 659A.183; whistleblower retaliation in violation of

Oregon Revised Statute § 659A.199; race and national origin

discrimination and harassment in violation of Oregon Revised

Statute § 659A.303(a) and (b); retaliation in violation of Oregon

Revised Statute § 659A.030(f); wrongful discharge; and violation

of the False Claims Act pursuant to 31 U.S.C. § 3729.

On June 29, 2016, Plaintiff filed an Amended Complaint in

which he alleges all of the above claims except the claim brought

pursuant to the False Claims Act.

In November 2016 Defendant sent notice to Plaintiff that it

intended to issue subpoenas for the records indicated. Although

the parties conferred and, as a result, narrowed the scope of the

subpoenas, Plaintiff continues to object to the issuance of the

subpoenas.

DISCUSSION

I. Plaintiff’s Motion to Strike (#47)

Plaintiff seeks to strike Defendant’s Response to

Plaintiff’s Motion to Quash Subpoenas on the ground that

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Defendant did not timely respond to the Motion. 

Plaintiff relies on the Court’s Case Management Order (#38)

that provides a response to a “discovery motion” must be filed

within seven calendar days. On December 5, 2016, Plaintiff filed

his Motion to Quash Subpoenas which Plaintiff contends was a

“discovery motion” and, therefore, Defendant’s Response was due

by December 12, 2016, under the Court's Case Management Order. 

Defendant, however, did not file its Response to Plaintiff’s

Motion until December 22, 2016, and, according to Plaintiff,

Defendant’s Response was, therefore, filed untimely and should be

stricken.

The Court’s intention with regard to managing discovery

disputes is to resolve such issues quickly and informally when

possible. Generally such disputes merely relate to the exchange

of discovery between the parties and, because full conferral is

required before any discovery motion is filed, a reply is

ordinarily not warranted. Plaintiff’s Motion to Quash Subpoena

to a third-party, however, is a formal process that falls more

appropriately within regular motion practice pursuant to Local

Rule 7(e), which allows a party 14 days to respond to a motion. 

In this context, the Court concludes Plaintiff’s Motion is not

the type of “discovery motion” for which a seven-day response

time was required by the Case Management Order.

Accordingly, the Court DENIES Plaintiff’s Motion to Strike

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Defendant’s Response submitted within Plaintiff’s Reply (#47) in

support of his Motion to Quash Subpoenas.

II. Plaintiff’s Motion to Quash Subpoenas (#41)

Plaintiff contends his employment records from his current

employer are not relevant to the pending litigation, his records

are inadmissable character evidence, Defendant’s request is

overly broad, and production of the records would violate

Plaintiff’s privacy rights. Plaintiff specifically objects to

production of performance evaluations, disciplinary records,

complaints, and records of complaints involving Plaintiff. 

Plaintiff argues the requested subpoena should be modified “to

only seek Plaintiff’s employee file.”

Plaintiff also contends the subpoena for his medical records

should be quashed or modified to allow only discovery of 

Plaintiff’s medical records pertaining to his FMLA and OMLA leave

claims on the grounds that his medical records are privileged and

that he has not waived any privilege by asserting FMLA/OMLA

claims or by seeking “garden variety” emotional-distress damages. 

In the event the Court denies Plaintiff’s Motion to Quash,

Plaintiff asks the Court to review Plaintiff’s medical records in

camera before they might be released to Defendant in order to

determine their relevancy as to Plaintiff’s FMLA/OMLA claims

and/or to issue a Protective Order as to those records.

According to Defendant, however, Plaintiff’s employment

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records are relevant to his work qualifications and work-related

habits, his healthcare records are relevant to his claims, and

Plaintiff placed his overall health and medical conditions at

issue when he brought claims involving his FMLA/OMLA leave. 

Because Plaintiff also alleges he suffers from, among other

things, depression, anxiety, inability to sleep, and upset

stomach, Defendant argues Plaintiff’s damages claims are for more

than “garden variety” emotional distress. Accordingly, Defendant

maintains it is entitled to discovery of medical records

reflecting treatment for those symptoms.

A. Standards

Federal Rule of Civil Procedure 26(b)(1) permits discovery

of “any nonprivileged matter that is relevant to any party’s

claims or defense and proportional to the needs of the case.” 

Rule 26(c) authorizes the Court to limit discovery upon motion by

a party with “good cause” shown to protect a party from

“annoyance, embarrassment, oppression, or undue burden or

expense.” Rule 45(d)(3) authorizes the Court to quash a subpoena

under specified circumstances, including when the subpoena

requires disclosure of privileged or protected materials, when an 

exception or waiver does not apply, or when the subpoena subjects

a person to undue burden.

B. Plaintiff’s Employment Records

Plaintiff misstates the scope and limits of discovery under

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Rule 26(b)(1), which provides “[i]nformation within the scope of

discovery need not be admissible in evidence to be discoverable.” 

Thus, Rule 26 requires the discovery must only be relevant to a

claim or defense and proportional to the needs of the case and no

longer requires the discovery to appear “reasonably calculated to

lead to the discovery of admissible evidence.” 

The Court concludes Plaintiff’s current employment records

are relevant to his claims in light of his allegation that

Defendant’s conduct resulted in “damage to [Plaintiff’s] career”

and resulted in his “lack of confidence in the banking system.” 

Although Plaintiff has a legitimate privacy interest in the

contents of his employment-related files, Abu v. Piramco Sea-Tac,

Inc., No. 08-1167, 2009 WL 279036, at *1 (W.D. Wash. Feb. 5,

2009), courts have allowed production of personnel files when the

party seeking production has shown the information is relevant. 

If the court determines the requested evidence is relevant, the

court must then balance the defendant’s interest in obtaining the

information against the plaintiff’s privacy interest and the

burden to the third parties. Id., at *3. 

In addition, although Plaintiff has not asserted any

specific privacy interests that would be violated if this

discovery is allowed, Plaintiff contends his employment records

constitute inadmissible character evidence under Rule 404 and,

therefore, are not discoverable is incorrect. At this stage of

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the litigation, however, Plaintiff’s employment records are

discoverable because they are relevant to Plaintiff’s claims. 

Their potential admissibility at trial is not the issue at this

stage. 

C. Plaintiff’s Medical Records

As noted, Plaintiff contends his medical records are

privileged and he has not waived any privilege because he merely

alleges “a garden variety” emotional-distress claim. Plaintiff

asserts he will not rely on any treating psychotherapist or

expert to prove emotional-distress damages, and, therefore,

Defendant is only entitled to medical records pertaining to

Plaintiff’s FMLA/OMLA claim.

The extent to which a plaintiff’s claim for emotionaldistress damages constitutes a waiver of the plaintiff’s

psychotherapist-patient privilege is not yet settled in this

Circuit. Courts generally follow one of three different

approaches: (1) the broad approach - plaintiff waives the

privilege merely by alleging emotional distress in the complaint;

(2) the middle approach - plaintiff waives the privilege by

alleging either a separate tort of distress or unusually severe

emotional distress (i.e., more than “garden variety” emotional

distress); or (3) the narrow approach - plaintiff waives the

privilege by affirmatively relying on the psychotherapist-patient

communication. Fitzgerald v. Cassil, 216 F.R.D. 632, 636-38

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(N.D. Cal. 2003).

Here although Plaintiff characterizes his emotionaldistress claim as “garden variety,” he states in his Amended

Complaint that he “suffered emotional harm including and not

limited to embarrassment, anxiety, depression, lack of confidence

in the banking system, low self-esteem, inability to sleep, lack

of enjoyment of activities, upset stomach, anger, frustration,

hopelessness, and other negative emotions.” Am. Comp. ¶ 51. 

In E.E.O.C. v. California Psychiatric Transitions the court,

adopting the broad approach, held the employee waived the

psychotherapist-patient privilege in a Title VII sexual

harassment against his employer by asserting a claim for

emotional damages even though the employee did not allege any

specific emotional injury or claim of intentional infliction of

emotional distress and the only remedy sought was emotionaldistress damages. 258 F.R.D. 391, 400 (E.D. Cal. 2009). The

Court finds the California Psychiatric Transitions Court's

reasoning is helpful to resolving this dispute.

Although emotional distress is not the “crux” of Plaintiff’s

damages claim here and he has not alleged a specific intentional

infliction of emotional-distress claim, Plaintiff’s allegations

are, quite literally, more than “garden variety” allegations; for

example, Plaintiff alleges “lack of confidence in the banking

system, . . . lack of enjoyment of activities, . . . frustration,

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hopelessness, and other negative emotions.” Such allegations

place Plaintiff’s mental health at issue, and, therefore, the

Court finds Plaintiff has waived the privilege.

The Court notes Defendant also raises an issue specifically

as to the legitimacy of Plaintiff’s FMLA/OMLA claim and suggests

Plaintiff may have fabricated the alleged reason for his absence

only after Defendant denied Plaintiff’s request for “personal

time off,” which also places Plaintiff’s medical health at issue. 

On this record, therefore, the Court concludes Defendant is

entitled to discovery of Plaintiff’s employments records from

U.S. Bank, his current employer, and medical records from

Northwest Primary Care, his primary-care provider. Accordingly,

the Court DENIES Plaintiff’s Motion (#41) to Quash Subpoenas.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Motion (#41)

to Quash Subpoenas and Plaintiff’s Motion to Strike submitted

within his Reply (#47) to Defendant’s Response to the Motion to

Quash.

With respect to whether the discovery produced pursuant to

the subpoenas should be reviewed in camera or subject to a

Protective Order, the Court directs the parties to confer in an

effort to resolve this issue. After full conferral, the parties

must submit no later than February 7, 2017, a stipulation

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resolving this issue or a Joint Status Report concisely stating

their positions on the issue.

IT IS SO ORDERED.

DATED this 20th day of January, 2017.

 

 s/ Anna J. Brown 

ANNA J. BROWN

United States District Judge

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