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#1999

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

B & R ROOFING & SHEET METAL COMPANY,

DEBTOR(S)

NO. 92-40396-11

CHAPTER 11

SHERI ROBBEN,

PLAINTIFF(S),

v.

B & R ROOFING & SHEET METAL COMPANY,

DEFENDANT(S)

ADV. NO. 93-7151

ORDER DENYING MOTION TO RECONSIDER ORDER QUASHING SUBPOENA

This proceeding is before the Court on the plaintiff's motion to reconsider the March 2, 1994, order quashing her subpoena. The plaintiff appears by counsel Caleb Boone. No one has responded to the motion. The Court has reviewed the relevant pleadings, and is now ready to rule.

In the prior order, the Court concluded that K.S.A. 1992 Supp. 44-714(f) precluded the plaintiff from obtaining all unemployment insurance records about her from the Kansas Department of Human Resources (KDHR). Upon further consideration, the Court believes that the reasons it gave for its conclusion may have been incorrect, but that the result was nevertheless correct.

The Court had previously assumed that the state statute controlled the discoverability and admissibility of the KDHR records. However, as provided in Federal Rule of Evidence 501 and explained in EEOC v. Illinois Dept. of Employment Security, 995 F.2d 106, 107 (7th Cir. 1993), state evidentiary privileges govern in federal courts only when state law provides the rule of decision--for example, in cases of diversity jurisdiction--and not when federal law governs. The plaintiff's claims of sexual harassment or sexual discrimination are based on federal law. Consequently, Evidence Rule 501 directs the Court to determine whether matter is privileged by applying "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Thus, the Kansas statute cannot properly be viewed as controlling the question in this case. It appears that Judge Saffels' decision which the Court had relied on in the original order was a diversity case and so would also not control here. See Kuehn v. La Petite Academy, Inc., Case No. 82-2239, Memorandum and Order (D.Kan. June 6, 1983).

The plaintiff relies mainly on two cases, EEOC v. Illinois Dept. of Employment Security, 995 F.2d 106 and Thorne v. Big "D" Discount Auto Parts of Daleville, Inc., 92 F.R.D. 55 (M.D.Ala. 1981). These cases are distinguishable. In EEOC v. Illinois Dept., the Seventh Circuit was faced with a conflict between a federal statute that gave the EEOC the right to obtain any evidence relevant to unlawful employment practices within its jurisdiction and a state statute similar to K.S.A. 1992 Supp. 44-714(f). In Thorne v. Big "D", the district court concluded the state privilege did not protect the hearing transcript that was sought, and distinguished cases where the state agency's entire record was sought.

The plaintiff has stated no reason for wanting to obtain the KDHR's records, nor can the Court easily discern what purpose would be served. So far as the Court is aware, any witnesses familiar with the plaintiff's employment with the debtor were available to testify and did so at the trial in this proceeding, seemingly making the agency's records relevant only for impeachment purposes. So, although the State of Kansas obtained the information with a statutory promise that it would remain confidential, the plaintiff asks the Court to override that promise simply because the Court is empowered by a different sovereign. The Court is convinced the state privilege should be recognized at least to the extent of requiring some allegation, if not some showing, of a need for the information, such as its unavailability from other sources.

The KDHR did submit its file to the Court for an in camera inspection. The Court has reviewed the materials and cannot see what value they would have to the plaintiff in this proceeding. The bulk of the documents are either forms she completed or rulings issued by the agency about her eligibility for unemployment compensation. The only information that appears to have come from the debtor indicates it contended she voluntarily quit her job without cause, a defense that apparently convinced the KDHR's initial examiner to deny her unemployment benefits. Perhaps the plaintiff hoped to use the decision on her appeal of that denial. However, the debtor has conceded the bulk of the allegations accepted by the referee in that appeal, and to the extent it contests them now, the Court notes that the appeal was unopposed, so the ruling would have little impact on the plaintiff's present suit.

For these reasons, the Court concludes that it correctly quashed the plaintiff's subpoena of the KDHR's records. Her motion to reconsider is hereby denied.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of June, 1994.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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