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Sourgoutsis v. United States Capitol Police

United States District Court, District of Columbia

November 21, 2017

CHRISAVGI SOURGOUTSIS, Plaintiff,
v.
UNITED STATES CAPITOL POLICE, Defendant.

          MEMORANDUM OPINION

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Movant Capitol Police Board's (“Movant” or “CPB”) Motion to Quash and for a Protective Order (“Motion to Quash”) [ECF No. 15], which seeks to quash two subpoenas served by Plaintiff Chrisavgi Sourgoutsis (“Plaintiff” or “Ms. Sourgoutsis”) on non-parties Fay Ropella, Inspector General of the United States Capitol Police (“USCP”), and the USCP Office of Inspector General (“OIG”). United States District Judge Ketanji Brown Jackson referred the Motion to Quash to the undersigned Magistrate Judge for resolution. See 6/12/17 Minute Order. Having considered the parties' submissions and attachments thereto, [1] the arguments presented at the motions hearing held August 4, 2017 (“Motions Hearing”), and after reviewing the CPB's in camera submissions, the Court GRANTS Movant's Motion to Quash and DENIES without prejudice Movant's Motion for Protective Order.

         BACKGROUND

         I. FACTUAL BACKGROUND[2]

         Ms. Sourgoutsis alleges that the USCP discriminated against her on the basis of her gender and retaliated against her for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Ms. Sourgoutsis joined the USCP on May 11, 2014 and became a probationary USCP Officer after she completed training. See Compl. ¶¶ 9, 28, ECF No. 1. Ms. Sourgoutsis's probationary period was scheduled to end on November 15, 2015. Id. ¶ 28. During that period, Ms. Sourgoutsis was disciplined for the following alleged conduct: wearing socks that were not the mandated uniform color; cursing; using a mobile phone indoors; criticizing the role player in a role-playing exercise; failing to wear an appropriate uniform shirt; and sitting while on duty. See Id. ¶¶ 15-17, 21-24, 40-41. Near the end of her probationary period, the USCP recommended that Ms. Sourgoutsis be terminated. See Id. ¶¶ 80, 98. Ms. Sourgoutsis contends that the discipline and her termination were based on her gender. See Id. ¶¶ 109-12. She further alleges that the USCP terminated her in retaliation for her participation as a witness in an interview regarding allegations that her supervisor had sexually harassed female officers. See Id. ¶¶ 120-22.

         II. PROCEDURAL BACKGROUND

         On June 13, 2016, Ms. Sourgoutsis filed a Complaint alleging gender discrimination and retaliation by the USCP in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. See Compl. The USCP filed an answer to Ms. Sourgoutsis's Complaint on September 6, 2016. See Def.'s Answer, ECF No. 7. Discovery commenced thereafter.

         The current discovery dispute arises from two subpoenas that Ms. Sourgoutsis served on Ms. Fay Ropella, Inspector General of the USCP, and OIG. See Movant's Mot. to Quash at 2, ECF No. 15-1; Pl.'s Opp'n at 3, ECF No. 17. The subpoenas seek production of certain documents and testimony regarding the USCP's disciplinary policies and practices, including a report reflecting OIG's evaluation of the USCP disciplinary process. Movant's Mot. to Quash, Ex. 1, ECF No. 15-2 (Subpoena to Fay Ropella) (hereinafter “Ropella Subpoena”) and Ex. 2, ECF No. 15-3 (Subpoena to OIG, USCP) (hereinafter “OIG Subpoena”). The CPB, [3] a non-party to this action, moved to quash the Ropella and OIG Subpoenas, and alternatively sought a protective order if the Court does not quash the subpoenas. See Movant's Mot. to Quash, ECF No. 15.

         By Minute Order dated July 31, 2017, the Court requested that the CPB submit for in camera review a copy of the OIG report at issue in the subpoenas. See 7/31/2017 Minute Order; see also Movant's Mot. to Quash, Ex. 3, ECF No. 15-4 (hereinafter “Privilege Log”) (Doc. Number 31). On August 4, 2017, the undersigned held a Motions Hearing at which counsel for the Plaintiff and Movant were present. See 8/4/2017 Minute Entry. The undersigned heard argument and took the motion under advisement. After the Motions Hearing, the Court issued three Orders directing the CPB to submit additional documents for in camera review and to further supplement the record. See 8/15/2017 Minute Order; Order, ECF No. 24; 11/7/17 Minute Order. The CPB timely submitted the requested information.

         LEGAL STANDARD

         I. MOTION TO QUASH

         Federal Rule of Civil Procedure 26 allows for “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). As part of this discovery, Federal Rule of Civil Procedure 45 permits a party to issue a subpoena to a non-party to command attendance at a deposition or to produce or permit inspection of documents, information, or tangible things. Fed.R.Civ.P. 45(a)(1). Rule 45 subpoenas may only be used to compel production of information that is discoverable under Rule 26. See AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995 (D.C. Cir. 2014). Therefore, upon timely motion, a court must quash or modify a Rule 45 subpoena that “requires disclosure of privileged or other protected matter[s], if no exception or waiver applies; or subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3); cf. In re Subpoena to Goldberg, 693 F.Supp.2d 81, 83 (D.D.C. 2010) (noting resolution of motion to quash governed by Rules 26 and 45 of the Federal Rules of Civil Procedure). That standard “applies to both document and testimonial subpoenas.” Watts v. SEC, 482 F.3d 501, 508-09 (D.C. Cir. 2007) (citation omitted).

         The party moving for relief bears the burden of showing that the subpoena should be quashed or modified. See Call of the Wild Movie, LLC v. Does 1-1, 062, 770 F.Supp.2d 332, 354 (D.D.C. 2011); see also Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984). “The quashing of a subpoena is an extraordinary measure, and is usually inappropriate absent extraordinary circumstances.” Flanagan v. Wyndham Int'l Inc., 231 F.R.D. 98, 102 (D.D.C. 2005) (citations omitted). Accordingly, a “movant's burden is greater for a motion to quash than if [the movant] were seeking more limited protection.” Id. (citing Westinghouse Elec. Corp. v. City of Burlington, Vt., 351 F.2d 762, 766 (D.C. Cir. 1965)); see also U.S. Dep't of the Treasury v. Pension Benefit Guar. Corp., 301 F.R.D. 20, 25 (D.D.C. 2014).

         II. MOTION FOR PROTECTIVE ORDER

         Federal Rule of Civil Procedure 26 provides that “for good cause” a court may issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The party requesting the protective order bears the burden of showing good cause “by demonstrating specific evidence of the harm that would result.” Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001); Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998); see also Washington v. Thurgood Marshall Acad., 230 F.R.D. 18, 21 (D.D.C), on reconsideration, 232 F.R.D. 6 (D.D.C. 2005) (reconsidering a separate proposition). Protective orders may “deny discovery completely, limit the conditions, time, place, or topics of discovery, or limit the manner in which the confidential information is to be revealed.” Univ. of Mass. v. Roslin Inst., 437 F.Supp.2d 57, 60 (D.D.C. 2006).

         ANALYSIS I.MOTION TO QUASH

         The CPB moves to quash two subpoenas: one issued to Fay Ropella, current Inspector General of the USCP; and one issued to OIG. The subpoenas request both testimony and the production of documents, and overlap substantially. Both subpoenas seek production of the following documents:

• Any documents regarding U.S. Capitol Police's (USCP) disciplinary policies and practices, including but not limited to: any investigation or report by the Office of Inspector General (OIG) regarding USCP's disciplinary process, including but not limited to whether USCP consistently applied its disciplinary policies and practices.
• Any documents regarding recommendations the OIG made to Chief Matthew Verderosa or USCP or any USCP officials within the past five years related to USCP's disciplinary policies, practices, or processes.
• Any documents showing summaries, reports, or compilations regarding the volume and nature of disciplinary actions that the USCP took within the past five years.

         Ropella Subpoena at Attach. A (Items #1-3) (footnote omitted); OIG Subpoena at Attach. A (Items #4-6).

         In her subpoena to OIG, Ms. Sourgoutsis also requests that OIG designate one or more officers, directors, managing agents, or other persons to testify about:

• USCP's disciplinary policies and practices, including but not limited to: any investigation or report by the Office of Inspector General (OIG) regarding USCP's disciplinary process, including but not limited to whether USCP consistently applied its disciplinary policies and practices.
• Recommendations the OIG made to Chief Matthew Verderosa or USCP or any USCP officials within the past five years related to USCP's disciplinary policies, practices, or processes.
• The manner in which the OIG maintains summaries, reports, or compilations regarding the volume and nature of disciplinary actions that USCP took within the past five years.

         OIG Subpoena at Attach. A (Items #1-3) (footnote omitted). Ms. Sourgoutsis's subpoena to Ms. Ropella also seeks testimony, but does not identify the topics to be addressed. See Ropella Subpoena at Attach. A. The CPB moves to quash both subpoenas. See Movant's Mot. to Quash, ECF No. 15.

         A. The Subpoenas for Production of Documents by OIG and Ms. Ropella[4]

         1. USCP's Disciplinary Policies and Practices

         The Ropella and OIG Subpoenas both seek documents “regarding USCP's disciplinary policies and practices, including but not limited to: any investigation or report by the Office of Inspector General (OIG) regarding USCP's disciplinary process . . . .” Ropella Subpoena at Attach. A (Item #1); see also OIG Subpoena at Attach. A (Item #4). Although the parties' arguments primarily focus on the discoverability of a report reflecting an OIG review of the USCP disciplinary process (hereinafter “OIG Report”), the scope of the subpoenas is broader and also would encompass the documents used to prepare the OIG Report and any records documenting the USCP's disciplinary policies.

         a. Th ...


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