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McClendon v. TelOhio Credit Union

August 14, 2006


The opinion of the court was delivered by: Judge Watson


This employment-related action is before the Court to consider a motion to quash subpoenas filed by plaintiffs, Lloyd McClendon, Jack Salvato, and Emma Flewellen. The subpoenas were issued by defendant TelOhio Credit Union, the former employer of the three plaintiffs, and served upon entities for whom the plaintiffs had previously worked. The subpoenas called for the production of employment records including job applications, payroll records, personnel evaluations and disciplinary records.

The motion to quash raises two issues. First, plaintiffs assert that they were not given timely notice of the issuance of the subpoenas in accordance with the requirements of Fed. R. Civ. P. 45(b)(1). Second, they contend that the subpoenas do not call for the production of evidence which is either admissible or which is reasonably calculated to lead to the discovery of admissible evidence. For the following reasons, the motion to quash will be granted in part and denied in part.


Plaintiffs' first argument relates to the timeliness of the notice given to them concerning the issuance of the subpoenas. As they note, Fed. R. Civ. P. 45(b)(1) provides, in pertinent part, that "[p]rior notice of any commanded production of documents" required by a subpoena issued under Rule 45 "shall be served on each party in the manner prescribed by Rule 5(b)." Rule 45 has been amended to include such language because, at one time, a non-party to litigation could not be commanded to produce documents by way of a subpoena, but rather was required to produce documents only in connection with a deposition which the non-party was compelled to attend. Now that the rule permits subpoenas for documents alone, Rule 45(b)(1) provides that other parties in the case are entitled to "prior notice" of the requested production. As stated in the Advisory Committee notes to the 1997 amendments to Rule 45, "[t]he purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or serve a demand for additional documents or things" because "when production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced."

Before addressing the parties' dispute concerning whether appropriate notice was given, it is helpful to set forth what notice was provided by TelOhio. According to TelOhio's memorandum in opposition to the motion to quash, all the subpoenas were served by the company named Cefaratti Court Reporting. That company sent all the subpoenas to the non-parties by way of certified mail which was post-marked July 5, 2006. The Cefaratti Group also mailed the subpoenas to plaintiffs' counsel on the same day. Plaintiffs' counsel apparently received some of the subpoenas on July 7 and the remainder on July 10. All of the subpoenas requested production of the documents described in the subpoenas on July 11, 2006 at the offices of TelOhio's attorneys in Cleveland.

The Court notes in passing that proper procedure does not appear to have been followed with respect to service of the subpoenas and the return date. Rule 45(b)(1) requires personal service of subpoenas and does not permit service by certified mail. Further, a subpoena to a non-party must allow the non-party reasonable time for compliance. Fed. R. Civ. P. 45(c)(3)(A)(i). Although the Rule does not specify exactly what a reasonable time is, Rule 45(c)(2)(B) appears to set a presumptive time of 14 days after service to respond. Subpoenas which are sent by certified mail on July 5, 2006 and which require production of documents by non-parties on July 11, 2006 would not appear to permit the non-parties a reasonable time to comply even if the non-parties waive the requirement of personal service and choose to honor the subpoena. However, those defects are not identified by plaintiffs as a particular problem, although the amount of time allowed for compliance is directly related to plaintiffs' assertion that the required "prior notice" was not given.

With this background in mind, the Court now turns to plaintiffs' specific argument, which is that the "prior notice" required by Rule 45(b)(1) means notice given prior to the issuance of the subpoenas, rather than notice given simultaneously with that issuance or prior to the date on which document production is commanded to occur. The case law is not uniform on this issue, although there are decisions which indicate that, whatever else it may mean, the "prior notice" requirement mandates notice to the opposing parties at least simultaneously with the issuance of the subpoenas. These cases, many of which are cited in plaintiffs' motion to quash, reject the notion that notice is sufficient under Rule 45(b) as long as it is given at some time (and usually a very short time) prior to the date established for production of the subpoenaed documents. Because Rule 45(b)(1) contemplates that sufficient advance notice will be given to permit the other parties in litigation to respond in some way to the subpoena, either by making objections, participating in the document production, or asking for additional documents, the notice must be given sufficiently in advance of the production lead so that those things may occur. Ordinarily, if the subpoenas are promptly served on opposing counsel the same day they are issued or served on the non-parties, and if the subpoenas also permit a reasonable time for response (presumptively 14 days), there will be no problem because the fourteen days will also give opposing parties ample opportunity to register their objections or otherwise participate in the process. Here, because the date fixed for compliance was only six days after service of the subpoenas, and, as it turns out, only four days after plaintiffs' counsel's receipt of some of the subpoenas and one day after receiving the others, a problem did occur. Under these particular circumstances, the Court could well conclude that the prior notice required by Rule 45(b)(1) was not given, although the conclusion would have been based just as much on the short compliance time as on the question of whether TelOhio was required to give plaintiffs' notice of its intent to serve subpoenas on some unspecified date before the subpoenas were actually served.

However, in this case, the parties were able to agree that those former employers who had not produced documents by the time the motion to quash was filed could wait until the motion was decided, and that any documents received by TelOhio would not be viewed until that date. Under these circumstances, although there may have been some technical violation of Rule 45(b), plaintiffs have not been prejudiced by that violation. In such a situation, the Court is entitled to move beyond the alleged violation of Rule 45(b) and look to the merits of the issue of whether the subpoenaed information is properly discoverable.

See, e,g., Seewald v. II5 Intelligence Information Systems, 1996 WL 612497 (E.D.N.Y. Oct. 16, 1996).


In support of its argument that this information is discoverable, TelOhio contends that because the plaintiffs assert that they were fraudulently induced to leave their prior employment based upon misrepresentations as to the financial condition of TelOhio and their prospects for a success at that company, information concerning their employment status at their prior employer is relevant. TelOhio also asserts that it is relevant as to whether any of the plaintiffs made similar allegations (although it is not clear whether TelOhio refers to the age discrimination allegations, the fraudulent misrepresentation allegations, or both) against a prior employer and that information contained in the files of prior employers might relate to the extent of the plaintiffs' purported business connections which plaintiffs claim to have possessed. Only one of the these arguments has any persuasive force.

First, the Court notes that only two of the three plaintiffs, Mr. Salvato and Ms. Flewellen, have alleged that they were lured away from a prior employer based upon representations made to them by TelOhio. Mr. McClendon simply alleges that he turned down other offers of employment in order to go to work for TelOhio. Thus, with respect to Mr. McClendon, information from his prior employers would not shed light on this allegation. The Court agrees that information concerning the immediate past employer of Mr. Salvato and Ms. Flewellen might pertain to whether they relied upon the alleged inducements given to them by TelOhio or whether they chose to leave their prior employment for other reasons. As a result, this information is discoverable. This rationale does not, however, justify discovery from any past employers other than the ones for whom Mr. Salvato and Ms. Flewellen were working immediately before they went to work for TelOhio.

TelOhio also asserts that it is relevant to determine whether any of the plaintiffs made similar allegations against any prior employers. It is difficult to see why this has any relationship either to the question of whether these plaintiffs were treated differently than younger employees who were similarly-situated to the plaintiffs or whether TelOhio substantially misled them with respect to statements it made to them in connection with their choice to become employed by TelOhio. Even in the reverse situation, Courts have concluded that employment discrimination plaintiffs are usually not entitled to introduce evidence that other employees have made similar claims against the current employer. See, e.g., Scaramuzzo v. Glenmore Distilleries, 501 F.Supp. 727, 733 (N.D. Ill. 1980) (the leveling of similar charges of discrimination against the plaintiff's former employer is of minimal probative value in determining whether the employer discriminated against this employee). In other words, whether any of the three plaintiffs also made an age discrimination claim against a prior employer appears irrelevant to the question of whether TelOhio either did or did not discriminate against them on the basis of their age. Such evidence would also not likely be admissible under Rule 406 because it is unlikely that the making of a prior discrimination ...

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