Hernandez v. Equal Employment Opportunity Commission

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-22721-CIV-MORENO/GOODMAN

MARIO HERNANDEZ,

Plaintiff,

v.

CHARLOTTE BURROWS, CHAIR

OF THE EQUAL EMPLOYMENT

OPPURTNITY COMMISSION,

Defendant.

_____________________________________/

ORDER ON DEFENDANT’S EXPEDITED MOTION FOR PROTECTIVE ORDER

Defendant, the Chair of the Equal Employment Opportunity Commission, has

filed an expedited motion for a protective order [ECF No. 74], seeking relief for a

photograph taken of a non-party EEOC employee which was produced to Plaintiff in

discovery in this sexual discrimination and retaliation federal civil rights lawsuit.

According to an email from the EEOC’s Director of Field Programs [ECF No. 56-30], the

female employee (a supervisor) voluntarily allowed a male subordinate employee to

photograph her in a sexually explicit manner.

The photograph shows the female supervisor in front of a desk in the EEOC’s

Miami District Office with her top pulled down and her body exposed from her neck to

her stomach. Although the woman’s face is not visible in the photo, the supervisor at

issue later confirmed in a deposition that she is the woman in the photo.

The supervisor (who was later demoted and is the one who allegedly

discriminated against Plaintiff) is not a party to the lawsuit, and she did not seek to

intervene or otherwise advocate for a protective order concerning the photo. Plaintiff filed

a response and Defendant filed a reply. [ECF Nos. 79; 80].

For the reasons outlined in greater detail below, the Undersigned denies the EEOC

Chair’s motion. By way of summary, though, the Undersigned denies the motion because

(1) Defendant does not have standing to seek a protective order for the personal privacy

rights of non-parties; and (2) even if Defendant has standing (which she does not),

Plaintiff has already announced in a federal court submission [ECF No. 79] that he has no

intention to disclose the photo to anyone not involved in this lawsuit.

Factual and Procedural Background

Plaintiff Mario Hernandez is an EEOC investigator. According to the Amended

Complaint and Hernandez’s later deposition testimony, he alleges that he and Supervisor

Katherine Gonzalez had a consensual sexual relationship which then at some point (he

cannot pinpoint exactly when) evolved into a non-consensual sexual relationship. He

claims that Ms. Gonzalez pressured him into a non-consensual sexual relationship,

discriminated against him and retaliated against him when he rejected her unwanted

sexual advances. For her part, Ms. Gonzalez admits that she had a consensual sexual

relationship with Hernandez, but only from August 2013 through April 2014.

In the first quarter of 2017, another EEOC employee (not Hernandez, but another

client of Plaintiff’s law firm), took the photograph of Ms. Gonzalez. According to her

deposition testimony, she initially opposed the male employee’s efforts to pull down her

shirt and expose her breasts but then she began “kind of like play fighting [with him] in

a sense,” and “let him” take the picture, after which he purportedly showed her that he

had deleted the photograph. [ECF No. 80-4, pp. 4-5].

During a discovery hearing, I granted Plaintiff’s request for Defendant to produce

a copy of the photograph, which defense counsel said was being kept in a safe in an EEOC

office in Washington, D.C. The photo was responsive to request number 48 of Plaintiff’s

second request for the production of documents. During a hearing about that discovery

dispute, defense counsel contended that the photo is irrelevant and beyond the scope of

discovery. Plaintiff’s counsel explained that the photograph is relevant for discovery

purposes because, among other reasons, it would show the consensual nature of the

photograph. Neither Plaintiff’s counsel nor defense counsel told me at the time that the

woman’s face was not visible in the photograph. In any event, Defendant complied with

the discovery ruling and later produced a copy of the photo to Plaintiff’s counsel.

After producing a copy of the photo to Plaintiff’s counsel, Defendant filed the

instant motion for a protective order on an expedited basis. The Undersigned imposed a

briefing schedule and directed the parties to discuss, among other issues, whether

Defendant has standing to seek a protective order for the benefit of a non-party.

Defendant’s expedited motion for a protective order contends that any further

disclosure of the photograph “implicates the privacy and confidentiality of individuals

not a party to this litigation.” (emphasis added). The motion concedes that Ms. Gonzalez

is not a party to the litigation and then contends that “her privacy interests would be

severely implicated” if the photo were disclosed to others not involved in this lawsuit.

(emphasis supplied). It then says that further disclosure “could cause detrimentally

undue and irreversible hardship and embarrassment to Ms. Gonzalez and her family.”

(emphasis supplied).

Applicable Legal Principles and Analysis

Federal Rule of Civil Procedure 26(c) provides, in relevant part, that “a party or

any person from whom discovery is sought may move for a protective order.” The rule

authorizes a court, “for good cause, [to] issue an order to protect a party or person from

annoyance, embarrassment, oppression or undue burden or expense.” Id. Defendant

argues that the rule permits her to seek an Order protecting the personal privacy rights

of a non-party because, after all, she (as EEOC Chair) is a party and the rule authorizes

parties to file motions for protective orders.

But that argument is unpersuasive, as it completely ignores the fundamental and

critical concept of standing. Yes, Defendant is a party, and she therefore has standing to

seek a protective order for issues affecting her, as a party. But she does not have standing

to seek protection for non-parties on personal issues affecting only the non-parties. Rule

26(c) says nothing about standing either way, but the requirement is implicit and case

law authority has so recognized this underlying requirement.

If standing were not required, then Defendant’s technical, focus-only-on-the-

specific-words approach would mean that (1) a non-party could file a motion for a

protective order to protect a named party’s rights (because the rule authorizes a non-

party to file “a” motion for a protective order and does not expressly say that standing is

required) and (2) a party could file motions for protective orders to obtain protection for

non-parties for all sorts of reasons, such as the discovery is too expensive, complying with

discovery would take too long, responding to the discovery request would monopolize

the time of too many employees in a small, privately-held business and the time to

comply is unreasonably short.

The non-parties, of course, could seek a protective order for those reasons listed in

category two (because those reasons directly affect them), and those non-parties could

also seek similar relief under Federal Rule of Civil Procedure 45(d)(3) (assuming that a

subpoena is the discovery tool involved). But a party could not successfully file a Rule

26(c) motion for protective order or a Rule 45 motion to quash or modify based on the

concerns of only non-parties. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 8:20-CV-1328-T-

33CPT, 2020 WL 7138621, at *3 (M.D. Fla. Dec. 7, 2020) (“Defendant lack[ed] standing to

challenge [a] subpoena on the grounds that it would impose an undue burden on [non-

party] to produce documents outside of Rule 45's 100-mile limit.”); Roche Diagnostics Corp.

v. Priority Healthcare Corp., No. 2:18-cv-01479-KOB-HNJ, 2019 WL 4686352, at *6 (N.D. Ala.

Feb. 12, 2019) (“To the extent non-party subpoenas seek documents or information not

directly related to a party, such a party has no standing to assert that a subpoena to

another seeks irrelevant, burdensome, oppressive, or overly broad information.”); AF

Holdings LLC v. Does 1-31, No. 12-20922-CIV, 2012 WL 12874594, at *1 (S.D. Fla. June 28,

2012) (“To the extent [movant] is claiming any undue hardship on the part of [non-party],

[movant] has no standing to raise such an argument under Rule 26.").

But Defendant’s expedited motion is fundamentally inconsistent with these cases

(and would require them to be decided in a contrary way) because, under her view of

Rule 26(c), she can file a motion because her mere status as a party (and the use of the

word “party” in Rule 26(c)) somehow trumps basic standing principles.

Although Rule 26(c) does not mention a standing component either way, a party

does not have standing to challenge discovery propounded to a non-party, unless the

party has a personal right or privilege concerning the subject matter of the documents or

information sought. Frenkel v. Acunto, No. 11-62422-CIV, 2014 WL 4680738, at *3 (S.D. Fla.

Sept. 19, 2014) (and also explaining, at *2, an earlier order in the same case that a judgment

debtor lacked standing to challenge a subpoena served on a bank for records of non-

parties based on their privacy rights); see also Wheeler v. Blackbear Two, LLC, No. 6:12–cv–

583–ORL–37TBS, 2012 WL 5989423, at *3 (M.D. Fla. Nov. 30, 2012) (“Under Florida law,

Defendant does not have standing to object [to discovery] on the basis of its employees'

privacy rights,” as the right to privacy is “personal to the individual.”) (citing Alterra

Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 940 (Fla. 2002)); Adelman v. Boy Scouts of

America, 276 F.R.D. 681, 694 (S.D. Fla. 2011) (finding that party lacks standing to object to

discovery based on the privacy rights of non-parties).

Even the cases which Defendant cited acknowledge that a party may file a Rule

26(c) motion for a protective order concerning discovery propounded to a third party

when the basis for the objection concerns the party, as opposed to a motion based on the

concerns of others. An interest which concerns a party, for example, is a discovery request

to a third party, such as a subpoena which seeks irrelevant information. Auto-Owners Ins.

Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (“Defendants, however,

have made no showing of undue burden. Further, Defendants do not have standing to

quash the subpoenas on the grounds of oppression and undue burden placed upon the

third parties where the non-parties have not objected on those grounds”);1 see generally

8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure

§ 2035 (3d ed. updated Apr. 2021) (“A party may not ask for an order to protect the rights

1 Defendant submitted as an exhibit to its reply [ECF No. 80-2] Fair Housing Center

of the Greater Palm Beaches, N0. 05-81040-Civ., 2006 WL 8066685, at * 1 (S.D. Fla. Oct. 23,

2006), which cites Auto-Owners. Defendant also cited Armas v. Miabraz, LLC, No. 12-20063,

2012 WL 13014668, at *1 (S.D. Fla. June 22, 2012) (explaining that a party has standing to

seek a protective order “if the subpoenas seek irrelevant information” (emphasis added)).

of another party or a witness if that party or witness does not claim protection for himself,

but a party may seek an order if it believes its own interest is jeopardized by discovery

sought from a third person.” emphasis added)).

Defendant submitted Armor Screen Corp. v. Storm Catcher, Inc., which explained

that “[i]n the Eleventh Circuit, the general rule is that a party lacks standing to challenge

subpoenas served on another, unless that party alleges a ‘personal right or privilege with

respect to the materials subpoenaed.’” No. 07-81091-Civ., 2008 WL 5049277, at *2 (S.D.

Fla. Nov. 25, 2008) (quoting Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)) (emphasis

added).2

Based on Brown v. Braddick and its progeny, it is clear that Defendant could file a

motion for a protective order if she challenged the relevancy or discoverability of the

photo, as that argument is one in which she (as a named party) has a personal right or

2 Brown v. Braddick is binding law in our Circuit and is still good law even though

it was decided more than 41 years ago. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit

rendered before the close of business on September 30, 1981). District courts in our Circuit

continue to regularly cite to it and rely on it for the standing limit and the exception

(inapplicable here) where a party asserts a “personal right or privilege with respect to the

materials” at issue in the motion. See, e.g., Scoma Chiropractic, P.A. v. National Spine and

Pain Denters, LLC, No. 2:20-cv-430, 2021 WL 4991523, at *2 (M.D. Fla. Oct. 27, 2021) (citing

Brown v. Braddick for the view that the lack of standing rule “excludes challenges ‘on the

grounds of oppression and undue burden … where the non-parties have not objected on

those grounds’”); Tuna Family Mgmt. Inc., No. 20-14017-CIV, 2021 WL 4877692, at *1 (S.D.

Fla. Oct. 19, 2021); Aspen American Insurance Co. v. Tasal, LLC, No. 6:20-cv-875, 2020 WL

10140952, at *6 (M.D. Fla. Dec. 23, 2020) (citing Brown v. Braddick and holding that because

“Plaintiff has not established the existence of a privilege, it lacks standing to even bring

the [m]otion”).

privilege.

But that is not what this expedited motion is about. The lack-of-relevancy

argument was already raised and discussed at the hearing, when I ruled that the photo

was discoverable (but did not make any rulings about admissibility at trial or in other

forums, such as summary judgment motion practice). Defendant did not pursue

Objections to the relevancy ruling concerning the discoverability of the photo.

Brown v. Braddick (and other authorities discussed here) also make clear that Ms.

Gonzalez herself could have sought protection to limit the further disclosure of the photo

showing her in “a state of partial undress.” [ECF No. 74, p.2]. But she did not.

So we are left with a party (the EEOC Chair) who is seeking a protective order

based on a motion which is expressly designed to protect Ms. Gonzalez’s alleged privacy

interests and to prevent possible embarrassment to her. Defendant has not argued that

she (a named party) has a personal right or privilege at issue in the expedited motion

concerning the photo, nor could she, given the nature of the private concern.

Under these circumstances, Defendant lacks standing to seek protection based on

the sole argument asserted in the motion – i.e., to protect a non-party from

embarrassment.

However, Ms. Gonzalez is not without some level of protection. In a formal

response filed on the public docket, Plaintiff has unequivocally represented that he has

no intent to disclose the photo to anyone not involved in this litigation. The Undersigned

is confident that Plaintiff and his counsel will abide by that clear representation. If Ms.

Gonzalez were to learn that Plaintiff and/or his attorneys failed to comply with their

official assurance filed on the docket, then she may file an appropriate motion.

DONE AND ORDERED in Chambers, in Miami, Florida, on December 20, 2021.

Jgnathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Federico A. Moreno

All Counsel of Record

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