TEAM 1003D

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

WYNNWOOD DIVISION

THEODORE McNALLY, :

:

Plaintiff, : CIVIL ACTION FILE

: NO. 10-X441-CIV-R

v. :

:

HOSTRAM, INC., :

:

Defendant. :

DEFENDANT’S SUPPLEMENTAL BRIEF IN SUPPORT OF

DEFENDANT’S MOTION FOR EXPEDITED DISCOVERY AND

SUMMARY JUDGMENT SCHEDULE AND DEFENDANT’S RESPONSE

TO PLAINTIFF’S MOTION TO QUASH SUBPOENA AND MOTION FOR

A PROTECTIVE ORDER

i

TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................... i

INDEX OF CITATIONS ................................................................................... iii

STATEMENT OF JURISDICTION .................................................................. v

QUESTIONS PRESENTED ...............................................................................vi

STATEMENT OF FACTS .................................................................................. 1

SUMMARY OF THE ARGUMENT ................................................................. 3

ARGUMENT AND CITATIONS OF AUTHORITY ........................................ 5

I. THE COURT MUST GRANT THE MOTION FOR EXPEDITED

DISCOVERY AND SUMMARY JUDGMENT SCHEDULE,

BECAUSE HOSTRAM’S AFTER-ACQUIRED EVIDENCE DEFENSE

IS A DECISIVE ISSUE THAT WILL NARROW THE SCOPE OF

LITIGATION AND ENCOURAGE EARLY SETTLEMENT,

PREVENTING IRREPARABLE INJURY TO HOSTRAM AND

SAVING SIGNIFICANT RESOURCES ................................................... 5

A. Hostram will suffer irreparable injury if the Court does not grant its

motion for expedited discovery because Hostram will have to exhaust

significant personnel and financial resources, as well as time that cannot

be monetarily compensated. ..................................................................... 7

B. Hostram can succeed based on the merits of its after-acquired evidence

defense because Plaintiff‟s taking and distributing of confidential

company material is severe misconduct that would have led to his

termination from Hostram had it known about it. ..................................... 8

C. Hostram‟s Motion for Expedited Discovery and Summary Judgment

Schedule is connected to its concern that it will suffer irreparable injury

by continuing with the normal, protracted discovery schedule. .............. 11

ii

D. The possibility of irreparable injury to Hostram significantly outweighs

any burden expediting discovery will have on Plaintiff. ......................... 12

II. THE COURT MUST DENY PLAINTIFF’S MOTION TO QUASH

AND ISSUE A PROTECTIVE ORDER, BECAUSE PLAINTIFF’S

POSSIBLE POST-TERMINATION MISCONDUCT IS AN

ADDITIONAL BASIS FOR HOSTRAM’S AFTER-ACQUIRED

EVIDENCE DEFENSE AND HOSTRAM’S SUBPOENAS ARE

NARROWLY FOCUSED AND REASONABLY CALCULATED TO

LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE. .......... 13

A. Plaintiff‟s possible post-termination misconduct is an additional basis for

Hostram to assert its after-acquired evidence defense, and therefore

relevant to administering the appropriate remedy, if any. ....................... 14

B. The Charleston subpoenas seeking Plaintiff‟s personnel documents and

testimony related to Plaintiff‟s termination from Charleston are narrowly

focused on finding information relevant for Hostram‟s after-acquired

evidence defense. ................................................................................... 20

CONCLUSION ................................................................................................... 23

iii

INDEX OF AUTHORITIES

Cases:

Crapp v. City of Miami Beach,

242 F.3d 1017 (11th Cir. 2001) ............................................................. 15, 18, 20

Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth.,

234 F.R.D. 4 (D.D.C. 2006). ............................................................................. 12

Fimab-Finanziaria Maglificio Biellese Fratelli Filia S.P.A. v. Helio Import/Export,

601 F. Supp. 1 (S.D. Fla. 1983) ........................................................................... 8

Jeffries v. Harris Cnty. Cmty. Action Ass‟n.,

615 F.2d 1025 (1980) .............................................................................. 9, 10, 11

Kempcke v. Monsanto Co.,

132 F.3d 442 (8th Cir. 1998) ................................................................... 9, 10, 11

Kona Spring Water, LTD. v. World Triathlon Corp.,

No. 06 C 1078, 2007 WL 905517 (M.D. Fla. 2007) .......................................... 14

Lentjes Bischoff GmbH v. Joy Envtl. Tech., Inc.,

986 F. Supp. 183 (S.D.N.Y. 1997) ...................................................................... 7

McKenna v. City of Philadelphia,

636 F. Supp. 2d 446 (E.D. Pa. 2009) ........................................................... 15, 19

McKennon v. Nashville Banner Publ‟g. Co.,

513 U.S. 352 (1995) ................................................................................... passim

Medlock v. Ortho Biotech, Inc.,

164 F.3d 545 (10th Cir. 1999) ..................................................................... 15, 17

Nassau Terminals, Inc. v. M/V Bering Sea,

No. 99-104-CIV-J-20C, 1999 WL 1293476 (M.D. Fla. 1999) ............................. 7

Nesselrotte v. Allegheny Energy, Inc.,

No. 06-01390, 2007 WL 3147038 (W.D. Pa.) ................................................... 15

iv

O‟Day v. McDonnell Douglas Helicopter Co.,

79 F.3d 756 (9th Cir. 1996) ........................................................................ passim

Platinum Mfg. Int‟l., Inc. v. Uninet Imaging, Inc.,

No. 8:08-cv-310-T-27MAP, 2008 WL 927558 (M.D. Fla. 2008) ........................ 7

Precision Window Mfg., Inc. v. N.L.R.B.,

963 F.2d 1105 (8th Cir. 1992) ........................................................................... 18

Premer v. Corestaff,

232 F.R.D. 692 (M.D. Fla. 2005) ...................................................................... 20

Qwest Commc‟n Intl. Inc. v. Worldquest Networks, Inc.,

213 F.R.D. 418 (D. Colo. 2003) .......................................................................... 8

Sellers v. Mineta,

358 F.3d 1058 (1995) ................................................................................. passim

Sigmon v. Parker, Chapin, Flattau & Klimpl,

901 F. Supp. 667 (S.D.N.Y. 1995) .................................................................... 15

Smith v. World Ins. Co.,

38 F.3d 1456 (8th Cir. 1994) ............................................................................. 15

Wallace v. Dunn Constr. Co., Inc.,

62 F.3d 374 (11th Cir. 1995) ............................................................................. 15

Statutes:

29 U.S.C. § 621 ...................................................................................................... 5

29 U.S.C. § 623 ................................................................................................ 9, 16

29 U.S.C. § 626 ...................................................................................................... 5

Rules:

Fed. R. Civ. P. 26 .......................................................................................... passim

Fed. R. Civ. P. 45 .................................................................................................. 13

v

STATEMENT OF JURISDICTION

Plaintiff, Theodore McNally (“Plaintiff”), filed suit against Defendant,

Hostram, Inc. (“Hostram”), asserting claims of discrimination in violation of the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et. seq. (R. 2).

Hostram‟s principle place of business is in Tampa, Florida. (R. 2). Plaintiff

invokes the jurisdiction of this court pursuant to 29 U.S.C. §§ 621 et. seq. and 28

U.S.C. § 1331. Venue is proper in the Middle District of Florida, Wynnwood

Division pursuant to 28 U.S.C. § 1391(b)(2) because the actions complained of

took place in this district and Hostram‟s principal place of business is located here.

vi

QUESTIONS PRESENTED

I. Whether This Court Should Grant a Motion for Expedited Discovery and

Summary Judgment Schedule When Minimal Discovery Has Occurred to

Date and Discoverable Information Exists That Would Allow Hostram to

Adequately Assert its After-Acquired Evidence Defense.

II. Whether Plaintiff‟s Possible Post-Termination Misconduct Is An Additional

Basis For Hostram‟s After-Acquired Evidence Defense and Therefore

Relevant to Administering the Appropriate Remedy.

1

STATEMENT OF FACTS

Hostram, Inc. is a lobbying firm based in Tampa, Florida. (R. 2). It engages

in political consulting services to industry and interest groups, predominantly large

agriculture companies. Id. Hostram employed Plaintiff as a lobbyist for 10 years

until his termination on February 8, 2010. Id. On May 3, 2010, Plaintiff filed this

action against Hostram claiming that Hostram terminated the employment

relationship because of his age in violation of the federal Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 et. seq. (“ADEA”).

After Hostram terminated Plaintiff, he obtained employment at Charleston

Industries (“Charleston”), a company engaged in similar business to Hostram. (R.

2). Plaintiff performed similar duties at Charleston to those he performed at

Hostram. His duties included representing agricultural clients and presenting their

interests to the state and federal legislatures. Id. However, his employment with

Charleston ceased after only four months into the employment relationship. Id.

The Plaintiff, in his interrogatory responses, asserted that his termination was a

“mutual decision” between Charleston and him. Id.

Based on this information, Hostram served Charleston subpoenas (the

“Charleston subpoenas”) to obtain Plaintiff‟s personnel file and other related

documents concerning Charleston‟s and Plaintiff‟s “mutual decision” to terminate

the employment relationship after only four months. Id. The subpoenas also seek

2

to depose Plaintiff‟s supervisor at Charleston about the termination decision. Id.

Plaintiff filed a motion to quash the subpoena and issue a protective order to

prevent Hostram from obtaining Plaintiff‟s employment documents from

Charleston. (R. 2-3).

During the pre-trial conference, Hostram also brought forth new concerns

alleging that Plaintiff might have engaged in terminable misconduct while

employed there. (R. 3). Pursuant to this concern, Hostram filed the motion to

expedite discovery and summary judgment schedule, seeking to narrow the scope

of the litigation and encourage early settlement. Id.

3

SUMMARY OF THE ARGUMENT

There are two motions before this Court. Hostram filed a motion requesting

this Court to expedite the discovery and summary judgment schedule. Plaintiff

also filed a Motion to Quash and issue a Protective Order on the Charleston

subpoenas. This brief discusses Hostram‟s support for its Motion to Expedite

Discovery and Summary Judgment Schedule and its response to Plaintiff‟s Motion

to Quash the Charleston subpoenas and issue a Protective Order.

This Court should grant Hostram‟s Motion to Expedite Discovery and

Summary Judgment Schedule because its after-acquired evidence defense is a

decisive issue that will narrow the scope of litigation and encourage the parties to

reach an early settlement. The after-acquired evidence defense seeks to determine

what remedies are available, as well as to determine the appropriate value to

award. Permitting the discovery to occur more rapidly will answer whether this

defense applies. If it does apply, then Plaintiff may have more of an incentive to

enter settlement negotiations. This will save significant resources and achieve the

parties‟ goal of reaching an amicable result.

This Court should deny Plaintiff‟s Motion to Quash and issue a Protective

Order because Plaintiff‟s possible post-termination misconduct at Charleston is an

additional basis for Hostram‟s after-acquired evidence defense. His possible post-

termination misconduct could limit the remedies available. For example,

4

Plaintiff‟s misconduct at Charleston may be egregious enough to make

reinstatement or front pay impractical or even inequitable. Furthermore, the

Charleston subpoenas are narrowly focused and reasonably calculated to lead to

relevant, admissible evidence in support of Hostram‟s after-acquired evidence

defense.

5

ARGUMENT AND CITATIONS OFAUTHORITY

I. THE COURT MUST GRANT THE MOTION FOR EXPEDITED

DISCOVERY AND SUMMARY JUDGMENT SCHEDULE,

BECAUSE HOSTRAM’S AFTER-ACQUIRED EVIDENCE DEFENSE

IS A DECISIVE ISSUE THAT WILL NARROW THE SCOPE OF

LITIGATION AND ENCOURAGE EARLY SETTLEMENT,

PREVENTING IRREPARABLE INJURY TO HOSTRAM AND

SAVING SIGNIFICANT RESOURCES.

The ADEA of 1967 is part of a congressional effort to eradicate all

discrimination in the workplace. 29 U.S.C. § 621 et. seq. The statute contains

remedial measures that serve as a “spur or catalyst” to cause employers to “self-

examine and self-evaluate their employment practices and to endeavor to

eliminate, so far as possible, the last vestiges” of discrimination. McKennon v.

Nashville Banner Publ‟g Co., 513 U.S. 352 (1995). The statutes objectives are

deterrence and compensation. Id. at 358. In keeping with these objectives, the

ADEA grants an injured employee a right of action to obtain the authorized relief.

29 U.S.C. §626(c).

It is within the District Court‟s discretion to afford relief by means of

reinstatement, backpay, injunctive relief, declaratory judgment, attorney‟s fees,

liquidated damages equal to the backpay award when a willful violation occurs, or

“grant such relief as may be appropriate to effectuate the purposes of [the Act].”

McKennon, 513 U.S. at 357-58 (citing 29 U.S.C. § 626(b)). In determining

whether to grant relief, the court must balance “the purpose of the Act to protect

6

the persons reasonably engaging in activities opposing . . . discrimination against

Congress‟ equally manifest desire not to tie the hands of employers in the objective

selection and control of personnel.” O‟Day v. McDonell Douglas Helicopter Co.,

79 F.3d 756, 763 (9th Cir. 1996). The after-acquired evidence defense addresses

this balancing act by accomplishing its purpose of determining the appropriate

remedy.

In the instant case, Hostram seeks to assert the after-acquired evidence

defense because Plaintiff committed terminable misconduct that would have led to

his termination had Hostram known about it at the time. “Where an employer

seeks to rely upon after-acquired evidence of wrongdoing it must first establish

that the wrongdoing was of such severity that the employee in fact would have

been terminated on those grounds had the employer known of it at the time of

discharge.” McKennon, 513 U.S. at 362. Hostram has sufficient evidence to

believe that Plaintiff engaged in terminable misconduct and this Court should grant

their motion to expedite discovery of this information. This will allow the parties

to narrow the scope of litigation and enhance the possibility of a more rapid

resolution to this case.1

Federal Rule of Civil Procedure 26 governs discovery and the duty of

disclosure. The rule grants broad discretion to this court to alter timing, sequence,

1 This Court agrees that disposition of this issue “will be useful to managing the litigation.” (R.

8).

7

and volume of discovery requests. See Fed. R. Civ. P. 26(b)(2), 26(d). However,

the moving party must show good cause for departing from the normal discovery

procedures. Nassau Terminals, Inc. v. M/V Bering Sea, No. 99-104-CIV-J-20C,

1999 WL 1293476 (M.D. Fla. 1999).

In evaluating a request for expedited discovery, courts balance the following

factors to determine if the requisite good cause exists: (1) irreparable injury, (2)

some probability of success on the merits, (3) some connection between expedited

discovery and avoidance of the irreparable injury, and (4) some evidence that the

injury that will result without the expedited discovery looms greater than the injury

that the defendant will suffer if the expedited relief is granted. Lentjes Bischoff

GmbH v. Joy Envtl. Tech., Inc., 986 F. Supp. 183, 189 (S.D.N.Y. 1997). Each of

these factors weigh in favor of granting Hostram‟s motion to expedite discovery

and summary judgment schedule. This section discusses each factor in turn below.

A. Hostram will suffer irreparable injury if the Court does not grant its

motion for expedited discovery because Hostram will have to exhaust

significant personnel and financial resources, as well as time that cannot

be monetarily compensated.

Failure to grant Hostram‟s motion will result in irreparable injury to

Hostram. The normal discovery process will unnecessarily delay the resolution of

this dispute and force all parties involved to exhaust significant personnel and

financial resources, as well as time. While there is no bright-line standard for what

constitutes irreparable injury, “the essence of the concept requires a substantial

8

threat of harm to the movant that cannot be compensated by money.” Qwest

Commc‟n Intl. Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 421 (D. Colo.

2003). The Court should grant a motion for expedited discovery when some

unusual circumstances or conditions exist that would likely prejudice the party if

he were required to wait the normal time. Fimab-Finanziaria Maglificio Biellese

Fratelli Filia S.P.A. v. Helio Import/Export, 601 F. Supp. 1 (S.D. Fla. 1983).

In order prevent the unnecessary exhaustion of resources and time, Hostram

must be permitted to expedite discovery in order to obtain support for their after-

acquired evidence defense. Their assertion of the after-acquired defense has a

direct impact on negotiations and potential settlement between the parties before

trial. Because the after-acquired evidence is integral to the pending litigation, the

normal discovery process will only unnecessarily prolong resolution of a

dispositive issue. Hostram will exhaust substantial resources and time if the

normal discovery process continues. Therefore, the Court should grant Hostram‟s

motion to expedite discovery, preventing irreparable injury to Hostram and the

senseless waste of resources.

B. Hostram can succeed based on the merits of its after-acquired evidence

defense because Plaintiff‟s taking and distributing of confidential

company material is severe misconduct that would have led to his

termination from Hostram had it known about it.

9

Plaintiff took confidential company material and disseminated it to get other

Hostram employees to join his lawsuit. This misconduct is severe enough that

Hostram would have terminated Plaintiff had it known about it at the time. While

Title VII2 makes it unlawful for an employer to discriminate against any of its

employees . . . because such individual has opposed any practice made unlawful by

the Title VII statute3, Plaintiff‟s misconduct is clearly not protected “opposition”

activity.

To be protected activity, Courts have required that the employee‟s conduct

be reasonable in light of the circumstances, holding that “the employer‟s right to

run his business must be balanced against the rights of the employee to express his

grievances and promote his own welfare.” Jeffries v. Harris Cnty. Cmty. Action

Ass‟n., 615 F.2d 1025 (1980). In Kempcke v. Monsanto Co., the court held a

plaintiff engaged in protected conduct where the plaintiff innocently acquired

confidential documents by discovering them on his company-assigned computer

and delivering them to his attorney. 132 F.3d 442, 446 (8th Cir. 1998). The

plaintiff in that case refused to return the documents upon demand, which resulted

in his termination for insubordination. The court found that the employee had a

good faith reason to believe that his employer had engaged in unlawful age

2 29 U.S.C. 623(d) (2006).

3 Courts apply the same standard for what constitutes protected activity under Title VII to claims

under the ADEA. See O‟Day 79 F.3d at 763.

10

discrimination and had a “legitimate interest in preserving evidence of his

employer‟s unlawful employment practices.” Id.

Conversely, in O‟Day v. McDonnell Douglas Helicopter Co., the court held

a plaintiff‟s conduct was unprotected activity where the plaintiff rummaged

through his supervisor‟s office and took, copied, and distributed restricted

personnel files. 79 F.3d at 764. In balancing the employer‟s interest in

maintaining a “harmonious and efficient” workplace with the protections of the

anti-discrimination laws, the court held the plaintiff‟s conduct did not constitute

protected activity and he could have been legally discharged for his actions. Id.

Similarly, in Jeffries v. Harris Cnty. Cmty. Action Ass‟n, the court held an

employee‟s conduct was not protected activity where the employee photocopied

confidential documents and personnel records and disseminated them to a co-

worker without authorization in violation of company policy. 615 F.2d at 1025.

The court ruled that the plaintiff had failed to establish that the employer would

have destroyed the documents had she not taken action to preserve them or to

make any other colorable claim that there was a need for the surreptitious copying

and dissemination of the documents. Id.

Similar to the plaintiffs in O‟Day and Jeffries, Plaintiff rummaged through

the trash looking for the confidential materials. (R. 3). He shared those

confidential documents with other employees to persuade them to join his anti-

11

discrimination lawsuit. Id. Plaintiff has not proffered any information indicating a

concern that evidence of Hostram‟s alleged discriminatory employment practices

were in danger of destruction if he had not taken the documents. Nor did he take

any steps similar to those taken by the plaintiff in Kempcke who gave the

confidential documents to his attorney. 132 F.3d at 446. Plaintiff‟s conduct could

reasonably lead to the interruption of a harmonious and efficient workplace. It

could also compromise the security and confidentiality of Hostram‟s proprietary

information, as well as other employees‟ personal privacy. Accordingly, Hostram

can succeed on the merits of its after-acquired evidence defense.

C. Hostram‟s Motion for Expedited Discovery and Summary Judgment

Schedule is connected to its concern that it will suffer irreparable injury

by continuing with the normal, protracted discovery schedule.

In assessing whether a party is entitled to expedited discovery, the party

requesting expedited discovery must show that the need for expedited discovery, in

consideration of administration of justice, outweighs prejudice to the responding

party. Fed. R. Civ. P. 26(d)(1). The factors considered under the standard of

reasonableness and good cause are (1) whether a preliminary injunction is pending;

(2) the breadth of discovery requests; (3) the purpose of requesting the expedited

discovery; (4) the burden on the defendants to comply with the requests; and (5)

how far in advance of the typical discovery process the request is being made.

Courts consider reasonableness in light of the entire record to date and all of the

12

surrounding circumstances. Disability Rights Council of Greater Wash. v. Wash.

Metro. Area Transit Auth., 234 F.R.D. 4 (D.D.C. 2006).

In the instant case, resolving whether a basis exists for Hostram to assert the

after-acquired evidence defense will expedite the administration of justice by

reducing the amount of time the parties need to gather the critical information

necessary to negotiate a settlement amount, if any. Expedited discovery will

facilitate the achievement of both parties‟ goal to dispose of the case expeditiously

with a minimum outlay of time and litigation expenses. Following the normal

discovery process will only result in the delay of the resolution of the lawsuit‟s

most critical issue: how much can Plaintiff recover if he succeeds on his age

discrimination case? This issue is dispositive and can be settled before reaching

trial. Delaying resolution can only lead to protracted litigation and an inefficient

use of the Court‟s time and resources.

D. The possibility of irreparable injury to Hostram significantly outweighs

any burden expediting discovery will have on Plaintiff.

Hostram‟s ability to assert the after-acquired evidence defense will

determine the remedies available to Plaintiff. Gathering the evidence necessary to

Hostram‟s defense by expediting the discovery process will provide both parties

with the information they need to determine how best to resolve the dispute earlier

rather than later. In fact, expediting the discovery process will benefit all parties

13

involved – Hostram, Plaintiff, and the Court. All could potentially save significant

resources and time if the issue of Hostram‟s after-acquired evidence defense is

decided rapidly.

Furthermore, Hostram has not suggested any course of action that will

significantly burden Plaintiff. The facts provided do not indicate that Hostram‟s

requests unduly burden the Plaintiff, requiring him to go above and beyond normal

discovery. The facts also do not suggest that excessive or extraordinary discovery

is necessary to ascertain whether Plaintiff‟s misconduct is a basis for Hostram‟s

after-acquired evidence defense.

Hostram merely requests that discovery occur sooner than it normally would

in an effort to narrow the scope of litigation and encourage settlement discussions.

In the interest of efficient administration of justice and based upon the evaluation

of the above factors, the Court should grant Hostram‟s Motion to Expedite

Discovery and Summary Judgment Schedule.

II. THE COURT MUST DENY PLAINTIFF’S MOTION TO QUASH

AND ISSUE A PROTECTIVE ORDER, BECAUSE PLAINTIFF’S

POSSIBLE POST-TERMINATION MISCONDUCT IS AN

ADDITIONAL BASIS FOR HOSTRAM’S AFTER-ACQUIRED

EVIDENCE DEFENSE AND HOSTRAM’S SUBPOENAS ARE

NARROWLY FOCUSED AND REASONABLY CALCULATED TO

LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE.

Federal Rule of Civil Procedure 45(c) lays out the provisions for when a

federal court is required or permitted to quash a subpoena. Fed. R. Civ. P. 45(c).

14

It is also well settled that a court must examine whether a subpoena is overly broad

or seeks irrelevant information under the same standards as the scope of discovery

and discovery production. Kona Spring Water, LTD. v. World Triathlon Corp.,

No. 06 C 1078, 2007 WL 905517 (M.D. Fla. 2007). In the present case, Plaintiff

challenges the Charleston subpoenas stating that the sought after information is

irrelevant to Hostram‟s after-acquired evidence defense. (R. 5). In light of the

forgoing standards, and the cases discussed below, the Court must deny Plaintiff‟s

motion to quash the Charleston subpoenas for two reasons.

First, the circumstances of Plaintiff‟s termination from Charleston are a basis

for Hostram‟s after-acquired evidence defense, and therefore relevant to the

Court‟s determination of available remedies. Second, Hostram‟s subpoenas are

narrowly focused and reasonably likely to lead to the discovery of admissible

evidence. This section discusses each of these arguments in turn.

A. Plaintiff‟s possible post-termination misconduct is an additional basis

for Hostram to assert its after-acquired evidence defense, and therefore

relevant to administering the appropriate remedy, if any.

"Parties may obtain discovery regarding any matter, not privileged, that is

relevant to the claim or defense of any party…." Fed. R. Civ. P. 26(b)(1)

(emphasis added). The Charleston subpoenas seek Plaintiff‟s post-termination

information relevant to establishing Hostram‟s after-acquired evidence defense.

The reason the information is relevant is because “after-acquired evidence of the

15

[Plaintiff‟s] wrongdoing bears on the specific remedy to be ordered.” McKennon,

513 U.S. at 360; see Wallace v. Dunn Constr. Co., Inc., 62 F.3d 374, 378 (11th Cir.

1995). Therefore, the Court should deny Plaintiff‟s motion quashing the

Charleston subpoenas, because the information is relevant to Hostram‟s defense

and, ultimately, the Court‟s assessment of the appropriate remedy, if any, to award

Plaintiff.

The Court of Appeals for the Eleventh Circuit has not addressed the issue of

post-termination misconduct as a basis for the after-acquired evidence defense. In

fact, there is a sharp division among courts regarding this issue.4 However, in light

of the Supreme Court‟s reasoning in McKennon v. Nashville Banner Co., post-

termination misconduct is a basis for the after-acquired evidence defense, because

in certain circumstances the remedies5 the Court can administer may be

inappropriate.6

4 Compare Sellers v. Mineta, 358 F.3d 1058 (8th Cir. 2004) (holding post-termination

misconduct is relevant to determining the appropriate remedy); Smith v. World Ins. Co., 38 F.3d

1456 (8th Cir. 1994); Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999); McKenna

v. City of Philadelphia, 636 F. Supp. 2d (E.D. Pa. 2009); Crapp v. City of Miami Beach, 242

F.3d 1017 (11th Cir. 2001) with Sigmon v. Parker, Chapin, Flattau & Klimpl, 901 F. Supp. 667

(S.D.N.Y. 1995) (declining to extend McKennon to post-termination misconduct); Nesselrotte v.

Allegheny Energy, Inc., No. 06-01390, 2007 WL 3147038 (W.D. Pa.). 5 It is within the District Court‟s discretion to afford relief by means of reinstatement, backpay,

injunctive relief, declaratory judgment, attorney‟s fees, liquidated damages equal to the backpay

award when a willful violation occurs, or “grant such relief as may be appropriate to effectuate

the purposes of [the Act].” McKennon, 513 U.S. at 357-58 (citing 29 U.S.C. § 626(b)). 6 The after-acquired defense serves the purpose of assessing equitable relief, balancing the

employee‟s injury against the employer‟s “lawful prerogatives… in the usual course of its

business and the corresponding equities that it has arising from the employee‟s wrongdoing.” Id.

at 361.

16

In McKennon, the United States Supreme Court addressed a situation where

an employer terminated an employee on the basis of age.7 The employee filed suit

against the employer seeking a variety of legal and equitable remedies available

under that statute. McKennon, 513 U.S. at 361. The issue before the Court was

whether the after-acquired evidence defense completely barred plaintiff‟s relief

when the defendant-employer affirmatively engaged in discrimination. Id. at 354.

The Court held that an employer‟s after-acquired evidence does not

completely bar relief, but may be used to bar or limit certain remedies. Id. at 362.

Furthermore, the Court established a rule for courts to apply when employers assert

the after-acquired evidence defense, “Where an employer seeks to rely upon after-

acquired evidence of wrongdoing, it must first establish the wrongdoing was of

such severity that the employee in fact would have been terminated on those

grounds alone if the employer had known of it at the time of the discharge.” Id. at

363-64 (emphasis added).8

The Court‟s McKennon rule is very deferential to courts addressing these

unique factual situations where an employer asserts the after-acquired evidence

defense. The Court said this of applying the rule:

7 The ADEA makes it unlawful for any employer “to discharge any individual or otherwise

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges or employment, because of such individual‟s age.” 29 U.S.C. § 623(a)(1). 8 While the McKennon rule applies, it is not substantively at issue yet in the present case because

the parties are still early in discovery.

17

“The proper boundaries of remedial relief in the general class of

where, after termination, it is discovered that the employee engaged in

wrongdoing must be addressed by the judicial system in the ordinary

course of further decisions, for the factual permutations and the

equitable considerations they will raise will vary from case to case.”

Id. at 361 (emphasis added).

Such fluidity implies that not all factual situations accord the same relief. The

Court‟s focus appears to be on the rule‟s purpose - balancing the parties‟ interests

to administer the appropriate remedy. Id. (The Court stated that determining the

appropriate remedial measure requires consideration of the employee‟s

misconduct, “not to punish… but to take due account of the lawful prerogatives of

the employer in the usual course of its business and the corresponding equities that

it has arising from the employee‟s wrongdoing.”).

This purpose drives the rule and it does not foreclose the applicability of

post-termination misconduct as a basis for asserting the defense.9 In certain

situations post-termination misconduct is evidence that courts consider for

assessing the appropriate remedy. This case is one of those situations, and the

Court should permit Hostram to obtain the information it seeks with the Charleston

subpoenas.

This Court would not be alone in holding that post-termination misconduct

is a basis for the after-acquired evidence defense and relevant to assessing

9 See Medlock, 164 F.3d at 555 (“We do not foreclose the possibility that in appropriate

circumstances the logic of McKennon may permit certain limitations on relief based on post-

termination misconduct.”).

18

available remedies. The Court of Appeals for the Eighth Circuit had reason to

address this issue in Sellers v. Mineta. 358 F.3d at 1058. In that case an employee

filed suit against her employer under Title VII alleging gender discrimination and

retaliation. Id. at 1059. After her termination, the employee gained employment at

a bank. Id. at 1060. Her employment with the bank ended when she used her

position to fraudulently obtain her spouse‟s, ex-wife‟s credit history. Id. The bank

fired her and the defendant-employer learned of this incident. It requested a stay of

the proceedings to investigate for purposes of assessing the remedy.10

The Sellers Court addressed the issue of whether the employee‟s post-

termination misconduct at the bank was relevant to the assessment of the front pay

remedy awarded. Id. at 1060. The Court held that the plaintiff‟s post-termination

misconduct was relevant to determine whether the front pay remedy should have

been available and to what extent. Id. at 1064. The Court stated that certain

situations make it unreasonable to award certain equitable remedies, and that post-

termination misconduct in certain situations renders the plaintiff ineligible to

receive some of those remedies. Id.; See also Crapp, 242 F.3d at 1021 (holding

reinstatement was an inappropriate remedy where a police officer lost his

certification post-termination); Precision Window Mfg., Inc. v. N.L.R.B., 963 F.2d

10

Id. at 1060. The case went to trial and the jury awarded the plaintiff a substantial front pay

award. Front pay is a disfavored remedy awarded when reinstatement is impractical or

impossible due to circumstances not attributable to the plaintiff. Id. at 1064.

19

1105, 1108 (8th Cir. 1992) (stating that an employee does not have an unlimited

right to engage in misconduct without losing his remedial rights); McKenna, 636

F. Supp. 2d at 461 (holding that reinstatement was an inappropriate remedy where

a police officer suing the city was convicted of marijuana possession after his

termination).

While these cases are not binding upon this Court, they stand as a helpful

analytical tool for this Court to address Plaintiff‟s motion to quash the Charleston

subpoenas. Hostram seeks to gain documents and testimony from Plaintiff‟s

employment relationship with Charleston. (R. 3). The sought after information

might contain evidence of wrongdoing that would render any one of the remedies11

available for award by the Court impractical or even inequitable.

Plaintiff‟s termination from Charleston is relevant for Hostram‟s defense and

the Court‟s assessment of the appropriate remedy. If he engaged in wrongdoing

that would prevent him from being re-hired, then reinstatement is an inappropriate

remedy. See Crapp, 242 F.3d at 1021; McKenna, 636 F. Supp. 2d at 461. If his

wrongdoing does not foreclose the possibility of reinstatement but some reason

exists making reinstatement impractical or impossible, then front pay may be an

appropriate award. See Sellers, 358 F.3d at 104. However, even if front pay is an

11

See supra note 5.

20

available remedy, the Plaintiff‟s post-termination misconduct is still relevant to

determine the extent of the award. Id.

These are only a few of the factual scenarios that may exist in this case. Any

one of them demonstrates that Plaintiff‟s termination from Charleston is relevant to

Hostram‟s defense and, ultimately, the remedies available. In light of the facts of

this case and the fact that the scope of discovery is so broad12

, the Court should

deny Plaintiff‟s motion to quash and permit discovery of Plaintiff‟s personnel

documents and testimony related to his termination from Charleston. To rule

otherwise would frustrate Hostram‟s ability to assert its defense and engage in

discovery of all relevant information that could lead to admissible evidence.

B. The Charleston subpoenas seeking Plaintiff‟s personnel documents and

testimony related to Plaintiff‟s termination from Charleston are narrowly

focused on finding information relevant for Hostram‟s after-acquired

evidence defense.

The Charleston subpoenas are narrowly focused and reasonably likely to

lead to admissible evidence relevant to Hostram‟s after-acquired evidence defense.

This Court grants motions to quash subpoenas where the subpoenas are overly

broad and not reasonably calculated to lead to the discovery admissible evidence.

Premer v. Corestaff Services, L.P., 232 F.R.D. 692 (M.D. Fla. 2005). The

12

"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim

or defense of any party…." Fed. R. Civ. P. 26(b)(1) (emphasis added).

21

Charleston subpoenas are not of the type that this Court would find overly broad

and unreasonably calculated.

Premer v. Corestaff Services is an example of what this Court holds as being

overly broad and unreasonably calculated. In Premer, the plaintiff sought a

protective order quashing the employer‟s subpoenas duces tecum demanding

discoverable information from plaintiff‟s former employer. Id. at 692. The

defendant sought “production of „any and all notes, memoranda, records, and

documentation whatsoever (with the exception of medical records) which regard or

reference [the plaintiff]… including but not limited to her personnel file and her

benefit files as well as records relating to her hiring, termination, her performance,

any disciplinary action received by her in the course of her employment,

compensation, benefits and the like.‟” Id. Judge Pizzo of this Court granted the

plaintiff‟s motion holding that the employer‟s subpoenas were overly broad and

not reasonably calculated to lead to the discovery of admissible evidence. Id. at

693.

The Charleston subpoenas are narrower in scope than the subpoenas quashed

in Premer. The subpoenas seek Plaintiff‟s personnel file and other related

documents, as well as testimony related to Plaintiff‟s termination from Charleston.

(R. 2). They seek to acquire information solely pertaining to Plaintiff‟s termination

22

from Charleston, and it is on this information that Hostram believes it will find

relevant, admissible evidence to support its defense.

Though the Plaintiff argues that Hostram‟s subpoenas are solely based on

the after-acquired evidence defense, Hostram‟s subpoenas are supported by other

evidence. (R. 2). After receiving the Plaintiff‟s interrogatory responses, Hostram

noticed Plaintiff ceased employment at Charleston after only four months. Id.

Furthermore, Plaintiff, not Charleston, stated that the decision was a “mutual

decision” between Charleston and Plaintiff. Id. The brevity of Plaintiff‟s

employment and his uncorroborated claim that it was a mutual decision is the basis

for Hostram‟s interest in obtaining discovery from Charleston. Hostram‟s after-

acquired defense is not the only basis for Hostram‟s subpoenas and its subpoenas

are narrowly focused and reasonably calculated to lead to discovery of admissible

evidence.

23

CONCLUSION

For the foregoing reasons, Hostram respectfully requests this Court to grant

its Motion for Expedited Discovery and Summary Judgment Schedule and deny

Plaintiff‟s Motion to Quash and issue a Protective Order.

Respectfully submitted by Counsel for the Defendant this 17th day of

September 2010.

/s/ Team 1003D