Morrison v. Scotia Capital Inc.

Background

Emily Morrison brought an employment action against Scotia Capital (USA) Inc. asserting gender discrimination, sexual harassment, hostile work environment, unequal pay, and retaliation claims under federal and state laws. Morrison moved for a protective order, which is a court order limiting or preventing burdensome or improper discovery. She sought to prevent Scotia Capital from serving ten subpoenas on potential employers and recruiters that she said she had contacted while trying to obtain new employment and mitigate her damages.

Morrison represented that she had already produced all documents in her control showing her efforts to mitigate damages. Scotia Capital contended that she had produced only emails appearing to confirm that she submitted job applications. The proposed subpoenas sought records from ten nonparty entities. Nine subpoenas contained six broad requests for documents and communications concerning Morrison’s job searches, employment prospects, qualifications, applications, business ventures, and related subjects. The subpoena directed to an employee of First Horizon Bank contained requests for Morrison’s medical, psychological, therapeutic, and treatment records, including recordings of appointments or sessions.

Legal standard

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. Third-party subpoenas under Rule 45 must satisfy that relevance requirement. Under Rule 26(c), a court may issue a protective order when discovery would cause annoyance, embarrassment, oppression, or undue burden or expense.

The court explained that, in discrimination cases, information about a plaintiff’s later employment may sometimes be relevant to mitigation of damages. A plaintiff must use reasonable diligence to find suitable employment, but that obligation is not onerous and does not require success. The employer bears the burden of showing that the plaintiff failed to meet that obligation. Courts generally prefer that relevant information about later employment be obtained from the plaintiff rather than through subpoenas to potential employers, which should be used only as a last resort.

Court’s analysis

The court found that information about Morrison’s efforts to mitigate damages was potentially relevant. But it held that the proposed subpoenas were improper as written for several reasons.

First, the requests in the First Horizon subpoena sought medical and therapeutic information. The court stated that such information would not be in the custody or control of a prospective employer and was clearly improper if directed to one because it could reveal private medical information. The court said the medical requests could not be included in any subpoena directed to a future employer.

Second, all ten subpoenas reached back to 2003. Morrison’s employment did not end until 2020, and the court stated that she did not have a duty to mitigate until she knew that her employment was ending because of the closure of Scotia Capital’s Louisiana office. Because the subpoenas were intended to gather information about mitigation, the court found them overbroad and irrelevant to the extent they sought information from before that duty arose.

Third, each of the six requests sought “all documents and communications.” The court described that kind of request as presumptively improper and found the time period grossly overbroad. Although Scotia Capital lacked direct access to some information, it could depose Morrison and learn more from her before seeking third-party subpoenas. The court concluded that the requests sought much more than was necessary to evaluate mitigation and were not proportional to the needs of the case.

Finally, the court considered the possible harm to Morrison and the nonparty entities. It found that subpoenas to potential employers could interfere with Morrison’s ability to obtain future employment, particularly because she described the financial-services sector as relatively insular and because the entities might have future jobs or serve as future references. The court found Scotia Capital’s argument that there was no employment risk unpersuasive.

Disposition

The court found that the subpoenas were improper at that time and overbroad as written. Judge Katharine H. Parker granted Morrison’s request for a protective order. The court stated that, after Morrison’s deposition, Scotia Capital could file a motion seeking permission for additional third-party discovery if the record demonstrated that such discovery was warranted. The Clerk was directed to terminate Morrison’s motion at ECF No. 94.