Some Good Language to Fight off Subpoenas in Overtime Misclassification Cases

Here is some good language that I came across, drafted by a New York overtime rights lawyer, in an attempt to prohibit the employer in a store manager misclassification case from issuing subpoenas that seek information pertaining to the plaintiff’s job search. This might be helpful to you in fighting off similar subpoenas in your misclassification cases:

The Federal Rules permit a subpoena to be quashed to protect the person affected by the subpoena from unnecessary or unduly harmful disclosures of confidential information. Rule 45(c)(3)(A) provides that, “[o]n timely motion, the issuing court must quash or modify a subpoena that: . . . (iii) requires disclosure of privileged or other protected matter, if not exception or waiver applies; or (iv) subjects a person to undue burden.” FED. R. CIV. P. 45(c)(3)(A).

Courts have found that a party has a constitutionally protected privacy interest in his or her personal records, which may provide a basis for standing to challenge subpoenas served on non-parties. See, e.g., Koch v. Greenberg, 2009 WL 2143634 (S.D.N.Y. July 14, 2009) (finding that the defendant has standing to challenge a subpoena served on a non-party because it is likely to divulge personal and confidential financial information); Arias-Zeballos v. Tan, 2007 WL 210112 (S.D.N.Y. Jan. 24, 2007) (finding that defendant has standing to quash plaintiff’s subpoena to a non-party of defendant’s personal checks and documents that involved the defendant).

The scope of a subpoena is tempered by the relevancy standard of Rule 26, which provides that parties may obtain, through discovery, information that is relevant to the subject matter involved in the pending action or reasonably calculated to lead to the discovery of admissible evidence. Although the contours of discovery are broad under the Federal Rules, parties should not be permitted to roam, in what are referred to as the “shadow zones” of relevance, to explore matters that are not pertinent, merely on the theory that it might become so. In re Surety Assoc. of America, 388 F.2d 412 (2d Cir. 1967). When the relevance of a particular discovery is questionable, discovery will generally be denied when the party seeking discovery has made no showing of relevance. Payne v. Howard, 75 F.R.D. 465 (D.D.C. 1997).

Any records obtained from these subpoenaed non-parties here will not provide any additional materially relevant evidence. Moreover, there is a distance between whatever indicia of relevance these records may have and anything likely to be determinative of what constitutes an exempt employee within the meaning of the New York Labor Law. When courts consider exemption issues, the “appropriate inquiry . . . is into [plaintiffs’] actual job duties and not into what [they] list[] on [their] resume.” Boring v. World Gym- Bishop, Inc., 2009 U.S. Dist. LEXIS 21061, at *42 (N.D. Ill. 2009). “The key to determination of whether an employee is covered by an exemption . . . does not depend on an employee’s general characterization of his or her job in a resume designed to enhance the employee’s duties and responsibilities to obtain a job . . . . What is important is what an employee actually does on a day-to-day basis.” Ale v. TVA, 269 F.3d 680, 688 (6th Cir. 2001); Perkins v. S. New. Eng. Tel. Co., 669 F. Supp. 2d 212, 219 n.3 (D. Conn. 2009).

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