United States District Court, S.D. Mississippi, Northern Division
DANIEL P. JORDAN, III, District Judge.
This Title VII wrongful-discharge case is before the Court on Defendant's Amended Motion to Quash Subpoena to Appear and Testify at Trial . Plaintiff Michael McField concedes the motion as to the subpoena issued to Troy Moses but contests it as those issued to three other officers. The Court finds that the motion should be denied except as conceded.
McField filed this action and originally claimed that the Mississippi Department of Public Safety ("DPS") transferred and then fired him because of his race and in retaliation for protected activity. The Court later granted summary judgment on all but McField's race-based-termination claim. Two pretrial conferences followed, and the matter is now set for trial June 2, 2014. In preparation for trial, McField caused subpoenas to be served on the following Mississippi Highway Patrol ("MHP") officers on the dates indicated: Michael Purnell (April 18, 2014), Calvin Ousby (October 1, 2013), and Johnny DeLaney (September 28, 2013). DPS now moves to quash.
Federal Rule of Civil Procedure 45(d)(3)(iv) governs this motion and states in relevant part that "[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that... subjects a person to undue burden." DPS invokes the rule arguing that because the three witnesses possess no relevant information, calling them would be an undue burden. Def.'s Mot.  at 2. For his part, McField claims DPS lacks standing to pursue the motion, that it is untimely, and that DPS fails to offer a legitimate basis for quashing the subpoenas under Rule 45. This order skips the timeliness issue and focuses on the balance of McField's response.
McField argues that DPS lacks standing to pursue this motion. Pl.'s Resp.  at 1 (citing 9A Charles Alan Wright et al., Federal Practice and Procedure § 2463.1 (3d ed. 2008)). DPS disagrees, but offers no authority for its position. See Def.'s Reply  at 4-5. The Fifth Circuit addressed a similar issue in Brown v. Braddick, where a party sought an order quashing a subpoena duces tecum issued to a nonparty. 595 F.2d 961, 967 (5th Cir. 1979). The court held that the movant lacked standing because the subpoenaed individual failed to join in the motion to quash and the movant had "not alleged any personal right or privilege with respect to the materials subpoenaed." Id. The Court has some reservation whether this analysis applies neatly to trial subpoenas, but DPS has offered no legal argument to the contrary. Regardless, DPS's motion fails for other reasons.
B. Substantive Argument
DPS asserts that the MHP officers might have information relevant to the transfer and retaliation claims, but those claims were dismissed. Accordingly, the argument goes, the testimony is irrelevant and the witnesses should not be forced to appear. Def.'s Mot.  at 2 (citing Fed.R.Civ.P. 45(c)(3)(A)(iv)). In other words, calling the witnesses when the testimony is inadmissible amounts to an undue burden. Of course, Rule 45 says nothing of relevance, and the MHP officers have not indicated that they would be unduly burdened if forced to unnecessarily appear. But even assuming DPS can properly move on this basis, the testimony is not so obviously irrelevant that the subpoenas should be quashed.
McField represents that the MHP officers will offer testimony regarding the termination claim. In particular, he asserts that the officers will "provide opinion testimony regarding racism of the decision-maker, Michael Berthay..." which will relate to "Defendant's pattern and practice regarding minority employment." Pl.'s Resp.  at 2. This position raises two issues: (1) the admissibility of opinion testimony regarding discriminatory intent, and (2) the relevance of discriminatory acts against coworkers.
Starting with the opinion testimony, Rule 701 of the Federal Rules of Evidence allows a lay witness to offer an opinion provided it is "rationally based on the witness's perception" and "helpful to clearly understanding the witness's testimony or to determining a fact in issue." Fed.R.Evid. 701(a)-(b). The Fifth Circuit examined Rule 701 in the employment-discrimination context in Hansard v. Pepsi-Cola Metropolitain Bottling Co., where a coworker, Miller, testified that the plaintiff was not rehired because of his age. 865 F.2d 1461 (5th Cir. 1989). Miller had no first-hand knowledge regarding the disputed employment decision, but he was familiar with the defendant's "hiring policy and its general corporate youth movement...." Id. at 1465-66. The Fifth Circuit observed that "[c]ourts often have permitted lay witnesses to express opinions about the motivation or intent of a particular person if the witness has an adequate opportunity to observe the underlying circumstances." Id. at 1466. And though it was admittedly hesitant, the Fifth Circuit found no abuse of discretion in allowing the testimony. Id. at 1467.
The same court appeared less hesitant in Haun v. Ideal Industries Inc., where it affirmed the decision to allow lay testimony that the employer was "phasing out older workers." 81 F.3d 541, 548 (5th Cir. 1996). The coworker's testimony stood because it was "based on his perception [drawn from personal observations] and helped the jury determine whether [the employer] discriminated." Id. But the opposite occurred in Hester v. BIC Corp., where the Second Circuit found error in the admission of insufficiently supported lay-opinion testimony. 225 F.3d 178 (2nd Cir. 2000). Thus, this type of testimony can be admitted, but it must be properly supported.
As for pattern evidence, "evidence concerning an employer's general policy and practice with respect to minority employment' may be relevant to any showing of pretext.'" Vance v. Union Planters Corp., 209 F.3d 438, 445 (5th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973)). Even when different decisionmakers are involved, the evidentiary question is "fact based and depends on many factors...." Sprint/United Mgmt. Co. v. ...