Miscellaneous Docket 1 v. Miscellaneous Docket 2

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1959

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Miscellaneous Docket Matter #1, *

*

Appellees, *

*

v. * Appeal from the United States District

* Court for the District of Minnesota.

Miscellaneous Docket Matter #2, *

*

Appellants. *

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Submitted: October 20, 1999

Filed: December 10, 1999

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Before BOWMAN, ROSS and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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ROSS, Circuit Judge.

Appellants are plaintiffs in a class action gender discrimination suit filed against

West Publishing Company (West) in the Middle District of Florida. Carter v. West

Publ'g Co., No. 97-CV-2537 (M.D. Fla. filed Oct. 16, 1997). They appeal from an

order of the district court1 entered in an ancillary proceeding quashing a subpoena on

1

The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota, affirming an order of Magistrate Judge John M. Mason. See Fed. R.

Civ. P. 72(a).

Dwight Opperman, West's former chief executive officer and president.2 We affirm.

BACKGROUND

The background leading to this appeal is as follows. In September 1997, Kim

Gosche, a former West salesperson, filed a Title VII, Equal Pay Act (EPA), and breach

of contract suit against West in Colorado district court, alleging gender discrimination

in its stock ownership program. In October 1997, Paula Carter and Maxine Jones,

former West employees who were represented by one of Gosche's lawyers, filed a class

action Title VII and EPA complaint in Florida, also alleging gender discrimination in

the stock ownership program. West's counsel and appellants' counsel agreed that

depositions taken in the Colorado or Florida case could be used in either case. In the

Gosche case, Opperman was deposed in Colorado for about nine and one-half hours

over two days. Before the second day, West's counsel wrote appellants' counsel

requesting that any questions relating to the Florida action should be asked at the

deposition, pointing out that Fed. R. Civ. P. 45 required parties to avoid imposing

undue burdens. At the conclusion of the second day, appellants' counsel stated he had

no further questions and "want[ed] to conclude the deposition in its entirety."

Pursuant to a protective order, Opperman was not asked questions regarding any

romantic or sexual relationships he or other West executives may have had with West's

female employees. However, after the order was modified and affirmed to permit

Opperman to be "asked if he had a sexual relationship with any female to whom he

decided to issue shares of stock within the relevant time period," Gosche sought to

schedule another deposition of Opperman in Minnesota. Opperman then filed an

ancillary action in Minnesota district court seeking to quash the subpoena. The court

granted his motion, holding that another deposition would constitute an undue burden

and subject Opperman to an invasion of privacy and embarrassment, citing Fed. R. Civ.

2

Although the district court sealed the proceedings, previously we have denied

Opperman's motion to proceed in camera.

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P. 26(c) and 45(c). Gosche, who settled her suit with West, did not appeal the order.

As to this appeal, in September 1998 appellants served a subpoena on Opperman

to appear for a deposition in Minnesota. Opperman filed a motion to quash under Rules

26 and 45, asserting another deposition would be an undue burden since it would be

duplicative and irrelevant. He also argued that appellants' intent in scheduling another

deposition was to embarrass and harass him as evidenced by the fact that appellants had

hired a public relations spokesperson and had issued press releases accusing Opperman

of sexual harassment.

After balancing appellants' need for the information with the burden on

Opperman, the district court granted the motion to quash. As to appellants' need, the

court held that an inquiry into a "sex for stock" claim would be irrelevant and an inquiry

into whether the relationships were nonconsensual would be of only limited relevancy,

which was outweighed by the burden on Opperman, who, as a nonparty, was entitled

to special protection. As to harm to Opperman, the court noted it could not ignore the

fact that appellants had hired a press spokesperson and issued press releases, and as in

the Gosche case, the proposed area of inquiry would unduly embarrass and harass

Opperman and invade his privacy. As an additional ground for granting the motion, the

court believed another deposition would subject Opperman to an undue burden because

appellants' counsel had the opportunity to ask questions relating to sexual harassment

and matters relating to the Florida suit during the Colorado deposition, but failed to do

so. The court noted West's counsel's letter to appellants' counsel requesting all

questions for both the Colorado and Florida actions be asked at the second day of the

Colorado deposition, appellants' counsel's lack of response and his firmness in wanting

to conclude Opperman's deposition.

DISCUSSION

Initially, we note our jurisdiction to review the order quashing the subpoena in the

ancillary proceeding. Although ordinarily discovery orders in pending cases are

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interlocutory and not subject to immediate appeal, in this case, because the ancillary

proceeding involves a nonparty and the main action is pending in a district court outside

this Circuit, appellants would have no "means, other than an immediate appeal, to obtain

appellate review." Hooker v. Continental Life Ins. Co., 965 F.2d 903, 905 (10th Cir.

1992). Thus, under the collateral order doctrine we have jurisdiction to review the order

quashing the subpoena. See Id.; see also In re Subpoena Served on California Public

Utilities Comm'n, 813 F.2d 1473, 1476 (9th Cir. 1987) (jurisdiction to review order

"issued by a district court in favor of a nonparty in connection with a case pending in

a district court of another circuit") .

We also note our standard of review. Appellants concede that we review motions

to quash for an abuse of discretion, see Mitzel v. Employers Ins. of Wausau, 878 F.2d

233, 235 (8th Cir. 1989), and that "[t]his standard applies equally to discovery sought

in a proceeding ancillary to the principal action." Marine Petroleum Co. v. Champlin

Petroleum Co., 641 F.2d 984, 991 (D.C. 1979). This deferential standard means "that

the court has a range of choice, and its decision will not be disturbed as long as it stays

within that range[,] is not influenced by any mistake of law" or fact, or makes a clear

error of judgment in balancing relevant factors. McKnight v. Johnson Controls, Inc.,

36 F.3d 1396, 1403 (8th Cir. 1994) (internal quotation omitted). Our review of the

record convinces us that the district court did not abuse its discretion.

Although the federal rules permit liberal discovery, it "is provided for the sole

purpose of assisting in the preparation and trial, or the settlement, of litigated disputes."

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). "It is clear from experience

that pretrial discovery by depositions . . . has a significant potential for abuse." Id.

"This abuse is not limited to matters of delay and expense; discovery also may seriously

implicate privacy interests of litigants and third parties." Id. at 34-35. Because of

liberal discovery and the potential for abuse, the federal rules "confer[] broad discretion

on the [district] court to decide when a protective order is appropriate and what degree

of protection is required." Id. at 36. Fed. R. Civ. P. 26(c) provides that "for good cause

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shown, the court . . . in the district where the deposition is to be taken may make any

order which justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P 45(c) provides

that a court shall quash or modify a subpoena if it "subjects a person to undue burden."

The district court correctly recognized that discovery may not be had on matters

irrelevant to the subject matter involved in the pending action, see Fed. R. Civ. P.

26(b)(1), and "[e]ven if relevant, discovery is not permitted where no need is shown, or

compliance would be unduly burdensome, or where harm to the person from whom

discovery is sought outweighs the need of the person seeking discovery of the

information." Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir.

1990) (emphasis omitted).

As to appellants' need, the court did not err as a matter of law in holding that an

inquiry into voluntary relationships would be irrelevant, see DeCintio v. Westchester

County Med. Center, 807 F.2d 304, 308 (2d Cir. 1986) ("voluntary, romantic

relationships cannot form the basis of a sex discrimination suit under either Title VII or

the Equal Pay Act"), cert. denied, 484 U.S. 825 (1987); see also Taken v. Oklahoma

Corp. Comm'n, 125 F.3d 1366, 1370 (10th Cir. 1997) (no Title VII liability where

"supervisor preselected his paramour for a [promotion] even though she was less

qualified than either Plaintiff").

Nor did the court abuse its discretion in holding that any proposed inquiry into

whether the relationships were nonconsensual would be outweighed by the harm to

Opperman. We agree with appellants that Opperman had the burden to demonstrate

good cause for issuance of the order and that his claim of harm must be based on more

than stereotypical and conclusory statements. General Dynamics Corp. v. Selb Mfg.

Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162 (1974). We,

however, disagree with their assertion that Opperman did not satisfy his burden or that

the district court gave his claim only minimal scrutiny. "While preventing

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embarrassment may be a factor satisfying the 'good cause' standard, an applicant for a

protective order whose chief concern is embarrassment must demonstrate that the

embarrassment will be particularly serious." Pansy v. Borough of Stroudsburg, 23 F.3d

772, 787 (3rd Cir. 1994) (internal quotation omitted). Although appellants would have

liked the district court to ignore the fact that they had issued press releases accusing

Opperman of sexual harassment, it did not and could not. See Seattle Times, 467 U.S.

at 35 ("There is an opportunity . . . for litigants to obtain -- incidentally or purposefully

-- information that not only is irrelevant but if publicly released could be damaging to

reputation and privacy."); Pansy, 23 F.3d at 787 (in balancing competing interests under

Rule 26 "a factor to consider is whether the information is being sought for . . . an

improper purpose").

At oral argument, appellants did not dispute that they had hired a press

spokesperson and issued press releases, but justified their actions in light of a local rule

which prevented them from contacting potential class members. See M.D. Fla. R.

4.04(e). They also did not dispute that they circulated to the press a declaration filled

with lurid details of a woman who claimed Opperman had harassed her, but could offer

no real justification for this action.3 We can see no purpose in circulating the

declaration other than to harass and embarrass Opperman. We remind appellants that

"[d]iscovery involves the use of compulsory process to facilitate orderly preparation for

trial, not to educate or titillate the public." Joy v. North, 692 F.2d 880, 893 (2d Cir.

1982), cert. denied, 460 U.S. 1051 (1983). "[D]istrict courts should not neglect their

power to restrict discovery where 'justice requires [protection for] a party or person from

annoyance, embarrassment, oppression, or undue burden or expense.' " Herbert v.

Lando, 441 U.S. 153, 177 (1979) (quoting Rule 26(c)). This is such a case.

Appellants also argue that the district court abused its discretion by focusing

solely on the sexual aspects of their proposed inquiry and neglecting their need for

3

We grant appellants' and Opperman's pending motions to supplement the record.

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information relating to stock ownership claims in the Florida action. They are incorrect.

The court also held that, apart from protecting Opperman from embarrassment, quashing

the subpoena on undue burden grounds was warranted because appellants had the

opportunity to ask questions concerning harassment and nonharassment matters

pertaining to the Florida case at the Colorado deposition, but did not do so. Although

appellants argue the district court erred in apparently believing that their lack of

response to West's letter proposing a single deposition showed their agreement, we do

not read the court's opinion in that manner. Rather, we read it as holding only that

quashing was warranted because appellants did not fulfill their duty under Rule 45 to

"take reasonable steps to avoid imposing undue burden or expense on a person subject

to that subpoena." Moreover, as the court noted, "concern for the unwanted burden

thrust upon non-parties is a factor entitled to special weight in evaluating the balance of

competing needs." Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998);

see also Exxon Shipping Co. v. United States Dept. of Interior, 34 F.3d 774, 779 (9th

Cir. 1994) (nonparties are afforded "special protection against the time and expense of

complying with subpoenas").

The district court believed it was reasonable for appellants to have asked the

questions about harassment and nonharassment matters at the Colorado deposition

because the protective order did not forbid such questions. The court also noted that

appellants' counsel, who also represented Gosche, appeared at the deposition; both

cases concerned discrimination in the stock ownership plan; and despite West's

reminder of Rule 45's obligation, at the end of the second day of the deposition

appellants' counsel stated he wanted "to conclude the deposition in its entirety." As the

Supreme Court has stated, because discovery rules should " be construed to secure the

just, speedy, and inexpensive determination of every action' . . . judges should not

hesitate to exercise appropriate control over the discovery process." Herbert, 441 U.S.

at 177 (quoting Fed. R. Civ. P. 1); see also Oliveri v. Rodriguez, 122 F.3d 406, 409 (7th

Cir. 1997) ("Pretrial discovery is time-consuming and expensive . . . and judges are to

be commended . . . for keeping tight reins on it.") cert. denied, 118 S. Ct. 1040 (1998).

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In the circumstances of this case, the district court did not abuse its discretion in

quashing the subpoena.

Accordingly, we affirm the district court's order.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT

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