United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
day came on to be considered Plaintiff's motion to quash
and for protective order.
was employed by CPS Energy, the City's municipally owned
energy company. He worked there from 1990 until 2016. He
alleges he was discharged because he was disabled, or CPS
perceived him as disabled, or because of his association with
a disabled person (Mesa's wife was diagnosed with
cancer). He brings causes of action under the Americans with
Disabilities Act and the Rehabilitation Act. He further
alleges that CPS retaliated against him for taking FMLA
Leave. He also claims that he was wrongfully discharged
because of his age in violation of the Age Discrimination in
has now apparently secured employment with Aldez Containers.
CPS issued a Notice of Intention to take a Deposition by
Written Questions to Aldez Containers. CPS requests that
Aldez Containers produce copies of all personnel records it
has regarding Mr. Mesa. CPS also seeks payroll records,
medical records, and records relating to employee benefits.
In his motion to quash, Plaintiff argues that the records
sought are not relevant and invade Plaintiff's privacy.
He also argues that the requests are overly broad and lack
responds that the motion to quash should be denied because
Plaintiff's counsel failed to confer with counsel for
Defendant prior to the filing of the motion. Otherwise,
Defendant contends that the records sought are relevant.
should have conferred with opposing counsel prior to the
filing of this motion. Thereafter, both sides had an
obligation to confer in good faith in an attempt to resolve
this dispute without court intervention. Neither party
meaningfully reached out prior to the court hearing on this
matter. Both parties failed.
counsel for Defendant repeatedly asserts in its Response that
they are entitled to information that reasonably could lead
to other matters that may bear on this case. Defendant cites
pre-December 1, 2015 caselaw for its support.
Civ. P. 26(b) was amended effective December 1, 2015.
“Information is discoverable under revised Rule
26(b)(1) if it is relevant to any party's claim or
defense and is proportional to the needs of the case.”
See 2015 Committee Note. The “reasonably calculated to
lead to the discovery of admissible evidence” language
Plaintiff in his objections to the various discovery requests
improperly asserts global objections and objects on the basis
that the requests are not “reasonably calculated to
lead to the discovery of admissible evidence.” As
stated above, that language has now been deleted. Further,
Fed.R.Civ.P. 34(b)(2)(B) was amended on December 1, 2015 to
require that objections to Rule 34 requests be stated with
specificity. See 2015 Committee Note.
Counsel should delete their old form files.
CPS argues that the information sought is relevant because
Mr. Mesa allegedly told CPS that he intended to retire
effective December 1, 2016, and that he now is asserting that
his discharge was an “involuntary
retirement.” CPS contends that Plaintiff's
credibility is at issue. CPS also contends any statements Mr.
Mesa may have made regarding his departure from CPS is
relevant (e.g. did he state in his application that he
retired from CPS). It further asserts that any statements Mr.
Mesa may have made to his new employer regarding the severity
of his physical limitations (or lack thereof) is relevant, as
well as any medical records.
continuing to cite the now deleted “likely to lead to
the discovery of admissible evidence” language, CPS
contends it is entitled to see information regarding
Plaintiff's performance at his new place of employment,
disciplinary records, and whether he has refused any
promotions that would have paid a higher wage or salary. CPS
contends that such information may be relevant to
whether Plaintiff has adequately mitigated his damages.
motion to quash is granted in part and denied in part. The
subpoena shall be served upon Aldez Containers. Thereafter,
Aldez Containers will produce its response to Plaintiff's
counsel. Plaintiff's counsel will review the material and
produce any documents that reference any statement Plaintiff
may have made regarding why he left CPS Energy's
employment. Plaintiff's counsel will also produce to the
Defendant any documents that reference whether Plaintiff
claims to suffer any disability or not. Finally,
Plaintiff's counsel shall produce any wage and ...