Boyer v. Novo Nordisk Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 THOMAS BOYER, No. 2:24-cv-1866 DJC AC 12 Plaintiff, 13 v. ORDER 14 NOVO NORDISK INC., 15 Defendant. [16] 17 This matter is before the court on plaintiff’s motion for a protective order against 18 defendant’s third-party subpoena issued to Intuitive Surgical, Inc. ECF No. 28. This discovery 19 motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(1). The parties submitted 20 the required joint statement (ECF No. 28-1) and the matter was submitted on the papers. ECF 21 No. 29. For the reasons stated below, the court DENIES plaintiff’s motion. 22 I. Relevant Background 23 This action involves claims of disability discrimination, age discrimination, and retaliation 24 in violation of the Fair Employment and Housing Act, Cal. Gov. Code § 12940 et seq. 25 (“FEHA”), retaliation for protected whistleblower activities in violation of Cal. Labor Code § 26 1102.5, and wrongful termination in violation of public policy. ECF No. 22 (operative First 27 Amended Complaint, “FAC”). The FAC alleges that plaintiff was employed by defendant Novo 28 Nordisk and is a person with type 1 diabetes. ECF No. 22 at 3. Plaintiff alleges that he suffered 1 age and disability discrimination at Novo Nordisk, and when he complained about the 2 discrimination and other violations of law by Novo Nordisk, the company retaliated, ultimately 3 terminating plaintiff’s employment. Id. at 4 . 4 Plaintiff was subsequently employed by Intuitive Surgical, Inc. ECF No. 28-1 at 2. 5 Plaintiff produced to defendant “an email showing when he applied for the position; an interview 6 request; the separation agreement; various emails between Plaintiff and Intuitive Surgical, Inc.; 7 and an IRS Form W2 evidencing his compensation.” Id. at 2-3 . Defendant issued a Fed. R. Civ. 8 P. 45 subpoena to Intuitive Surgical seeking plaintiff’s personnel file. ECF No. 28-2. Plaintiff 9 moves for a protective order preventing Intuitive Surgical from responding to the subpoena. ECF 10 No. 28. 11 II. Analysis 12 Federal Rule of Civil Procedure 45 allows a party to a lawsuit to serve a subpoena that 13 commands a non-party to “produce documents, electronically stored information, or tangible 14 things ...” Fed. R. Civ. P. 45(a)(1)(C). “Under Rule 45, the nonparty served with the subpoena 15 duces tecum may make objections to the subpoena . . . [but only] the [nonparty] can prevent 16 disclosure by objection. The party to whom the subpoenaed records pertain cannot simply object. 17 Rather, a protective order or motion to quash the subpoena is required.” McCoy v. Sw. Airlines 18 Co., 211 F.R.D. 381, 384 (C.D. Cal. 2002). 19 Federal Rule of Civil Procedure 26(c) governs the issuance of protective orders and states 20 they should be granted when the moving party establishes “good cause” for the order and “justice 21 requires [a protective order] to protect a party or person from annoyance, embarrassment, 22 oppression, or undue burden or expense....” Fed. R. Civ. P. 26(c). “For good cause to exist, the 23 party seeking protection bears the burden of showing specific prejudice or harm will result if no 24 protective order is granted.” Phillips v. General Motors Corp., 307 F.3d 1206 , 1210–11 (9th 25 Cir.2002); Beckman Industries, Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir.), cert. denied, [26] 506 U.S. 868 (1992). “Broad allegations of harm, unsubstantiated by specific examples or 27 articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Industries, 966 F.2d at 476 28 (internal quotations marks omitted). 1 Plaintiff contends that a protective order should be issued because the subpoena is 2 “cumulative, duplicative, irrelevant, meant to harass and is a fishing expedition.” ECF No. 28-1 3 at 2. Plaintiff asserts that he has already provided defendant with discovery related to his 4 employment with Intuitive Surgical, Inc. going to mitigation of damages – which defendant is 5 admittedly entitled to discover. Id. at 2. Defendant argues that it needs the entire personnel file 6 because plaintiff was terminated from Intuitive Surgical less than three months after he began 7 employment there, and records regarding his performance may be relevant to Novo Nordisk’s 8 claims that plaintiff was terminated for performance related reasons and not for discriminatory 9 reasons. Id. at 6-7. Plaintiff argues that he will be harmed by the discovery because he is a 10 “high-earning professional working in the health business sector, an industry where job 11 opportunities are largely obtained through word-of-mouth rather than formal applications” and 12 many organizations in this industry “have no knowledge of this lawsuit.” Id. at 4. Plaintiff 13 contends that if Intuitive Surgical is ordered to produce the requested documents, Intuitive 14 Surgical’s counsel will “necessarily need to consult with employees of Intuitive Surgical . . . and 15 the disclosure of this lawsuit . . . could trigger the spread of information regarding the current 16 lawsuit severely damaging his professional reputation and ability to continue working in this 17 insular field.” Id. at 4. 18 Plaintiff’s motion must be denied because he has not demonstrated that there is any risk of 19 harm if Intuitive Surgical responds to the Rule 45 subpoena. Plaintiff’s only allegation of harm is 20 that, if the protective order does not issue, individuals in his specialized field of employment will 21 learn about this lawsuit and that knowledge of this lawsuit will damage his professional 22 reputation. This rationale is entirely unpersuasive. Plaintiff filed this lawsuit, and it exists in the 23 public sphere whether Intuitive Surgical is required to produce plaintiff’s employment records or 24 not. Plaintiff has no right to privacy regarding the existence of this lawsuit. Plaintiff has 25 identified no other expected to result from Intuitive Surgical’s response to the Rule 45 subpoena. 26 The court notes that privacy concerns related to any sensitive information contained in the 27 personnel file are addressed by the stipulated protective order already in place in this action, 28 which specifically references personnel records. ECF No. 24 at 6. Accordingly, no protective 1 || order will issue with respect to the Rule 45 subpoena. 2 HI. Conclusion 3 For the foregoing reasons, plaintiffs motion for a protective order (ECF No. 28) is 4 | DENIED. It is so ordered. . ~ 5 || DATED: February 27, 2025 7 2 A / 6 ALLISON CLAIRE 7 UNITED STATES MAGISTRATE JUDGE