The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan
MEMORANDUM OPINION AND ORDER
Plaintiffs, current and former employees of Defendant Yellow Transportation, Inc. ("Yellow"), have filed suit on behalf of themselves and similarly situated African-American employees, seeking redress for violations of 42 U.S.C. § 1981. Specifically, Charles Brown, Jeffrey Burks, Antonio Colon, James DeMoss, Jameson Dixon, Clark Faulkner, Kenneth George, Leonard Gregory, Marshun Hill, Cedric Muse, Laroy Washington, Darrell Williams, Charles Woods and Michael Woods allege that they were subjected to an offensive and racially discriminatory work environment, including racial slurs; racial graffiti; co-workers wearing racially derogatory apparel; disparate terms of employment; denial of equal opportunity to promotions; racially biased discipline; and retaliation for complaints of racial bias.
Currently before the court is Plaintiffs' motion to quash subpoenas and for protective order. For the reasons stated below, the motion is granted.
Plaintiffs filed this lawsuit on October 15, 2008, and the parties promptly commenced discovery relating to the issue of class certification. On March 31, 2009, Yellow moved for leave to amend its answer and add the affirmative defense of judicial estoppel. In that motion, Yellow claims that during the course of discovery, it learned that Plaintiffs Jeffrey Burks, Antonio Colon and Jameson Dixon were parties to personal bankruptcy proceedings, but failed to disclose to the bankruptcy court the existence of their claims against Yellow. For example, Mr. Burks filed a charge against Yellow with the Equal Employment Opportunity Commission ("EEOC") on October 4, 2005; he was discharged from bankruptcy on July 12, 2007; but he never notified the bankruptcy court of his pending EEOC charge. Mr. Colon, similarly, filed an EEOC charge against Yellow on October 14, 2005, the same day he filed a voluntary petition for Chapter 7 bankruptcy; he was discharged from bankruptcy on March 13, 2006; but he never notified the bankruptcy court of his pending EEOC charge. (Motion to Amend, Doc. 40, ¶¶ 6-15.)
Mr. Dixon also filed an EEOC charge against Yellow on October 4, 2005, shortly after petitioning for Chapter 7 bankruptcy on September 9, 2005; he was discharged from bankruptcy on December 27, 2005; but he never notified the bankruptcy court of his pending EEOC charge. On October 6, 2008, Mr. Dixon filed another voluntary petition for bankruptcy, this time under Chapter 13. (Id. ¶¶ 16-20.) He did notify the bankruptcy court about the existence of this lawsuit, but only after Yellow raised the matter with Plaintiffs' counsel.
By May 2009, Yellow believed that it had uncovered facts to support a second affirmative defense -- after-acquired evidence. Yellow renewed its motion for leave to amend, adding the following information: Mr. Burks and Laroy Washington both stated on their employment applications that they had never been convicted of a crime when, in fact, Mr. Burks pled guilty to the crime of Theft From Person on November 2, 1981, and Mr. Washington pled guilty to the felony crime of Possession of a Controlled Substance With Intent to Deliver on February 25, 1987. Mr. Burks was sentenced to two years probation and two days jail time, and he had to pay $60 in court costs and fees. Mr. Washington was sentenced to two years probation. (Id. ¶¶ 22-26.)
The motion to amend remains pending before the district court, but all other discovery matters have been referred to this court for resolution. This includes Plaintiffs' July 13, 2009 motion to quash subpoenas and for protective order, which relates to the motion for leave to amend. Specifically, in March and June 2009, Yellow served 19 subpoenas on Plaintiffs' former employers, requesting, among other things, personnel files, payroll records, performance reviews, disciplinary records, background and reference checks, and complaints or charges. Yellow claims that in light of its independent discovery that Mr. Burks and Mr. Washington were not truthful on their employment applications, they are entitled to discovery aimed at determining whether there are additional bases for an after-acquired evidence defense with respect to these and the other Plaintiffs. Plaintiffs insist that the requested discovery is improper and lacking in any probative value, prompting the instant motion.
"A party has a general right to subpoena any person to... produce documents for inspection and copying." Davis v. City of Springfield, Illinois, Nos. 04-3168 and 07-3096, 2009 WL 910204, at *2 (C.D. Ill. Apr. 1, 2009) (citing FED. R. CIV. P. 45). "[T]he scope of material obtainable by a Rule 45 subpoena is as broad as permitted under the discovery rules." Wallace v. Hounshel, No. 1:06-cv-01560-RLY-TAB, 2008 WL 89933, at *2 (S.D. Ind. Jan. 2, 2008). In other words, "[a] subpoena will survive a motion to quash when it designates topics that are reasonably calculated to lead to admissible evidence." Stock v. Integrated Health Plan, Inc., 241 F.R.D. 618, 621 (S.D. Ill. 2007).
Yellow argues that the subpoenas seek evidence bearing on Plaintiffs' credibility, which is relevant in determining their adequacy as class representatives. Yellow also claims that the subpoenas may produce documents relevant to its after-acquired evidence defense. The court considers each theory in turn.
A. Adequacy of Representation
Yellow first focuses on the fact that Plaintiffs are seeking to represent a class of similarly situated employees. To succeed on a motion for class certification, Plaintiffs must show, among other things, that they "will fairly and adequately protect the interests of the class." Barragan v. Evanger's Dog and Cat Food Co., __ F.R.D. __, 2009 WL 2762403, at *1 (N.D. Ill. 2009) (quoting FED. R. CIV. P. 23(a)). Some courts have found that "[b]ecause the lead plaintiffs will act as fiduciaries for the absent plaintiffs, the court can examine their integrity and credibility in determining whether they are suitable representatives for the class." Pope v. Harvard Banchares, Inc., 240 F.R.D. 383, 390 (N.D. Ill. 2006) (citing Kaplan v. Pomerantz, 132 F.R.D. 504, 508-10 (N.D. Ill. 1990)). See also Davidson v. Citizens Gas & Coke Utility, 238 F.R.D. 225, ...