T.H. v. Martinez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
T.H.,
Plaintiff,
v. 	No. 2:24-cv-00887-MIS-KRS
MICHAEL ANDREW MARTINEZ,
in his individual capacity,
Defendant,
and
DOÑA ANA COUNTY,
Defendant-in-Intervention.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Michael Andrew Martinez’s Motion To
Quash Subpoenas (“Motion”), Doc. 117. The Motion seeks to quash subpoenas served by Plaintiff
on two former employers of Defendant Martinez: the New Mexico Department of Public Safety,
and Hatch Village Police Department. Both subpoenas request the subpoenaed party to produce
the 	initial 	employment 	application 	of 	[Defendant 	Martinez],
including any reference checks, criminal history searches and
results, background investigation and psychological reports related
to his fitness to be a law enforcement officer and all personnel files,
training records, disciplinary files and any other material related to
the employment of Michael Martinez.
Doc. 117-2 at 4; Doc. 117-3 at 4. For the reasons that follow, the Motion is denied.
Discussion
Rule 45 governs subpoenas issued to non-parties. See FED. R. C IV. P. 45; see also Simon v.
Taylor, No. CIV 12-0096 JB/WPL, 2014 WL 6633917, at *14 (D.N.M. Nov. 18, 2014)
(“Discovery of non-parties must be conducted by subpoena pursuant to FED. R. C IV. P. 45.”
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(internal quotation marks and citation omitted)), aff’d, 794 F. App’x 703 (10th Cir. 2019). Rule
45(d)(3) governs quashing or modifying a subpoena:
(3) 	Quashing or Modifying a Subpoena.
(A) 	When Required. On timely motion, the court for the
district where compliance is required must quash or
modify a subpoena that:
(i) 	fails to allow a reasonable time to
comply;
(ii) 	requires a person to comply beyond the
geographical limits specified in Rule
45(c);
(iii) 	requires 	disclosure 	of 	privileged 	or
other protected matter, if no exception
or waiver applies; or
(iv) 	subjects a person to undue burden.
FED. R. C IV. P. 45(d)(3). Neither of the subpoenaed third parties have moved to quash or modify
the subpoenas. Therefore, the Court initially addresses Defendant Martinez’s standing to move to
quash the subpoenas, and then moves on to discuss whether adequate grounds exist for denying
Plaintiff the discovery sought by the subpoenas.
A. 	Standing Issue
Generally, “only the party or person to whom the subpoena is directed has standing to move
to quash or otherwise object to a subpoena.” Beach v. City of Olathe, Kan., Nos. CIV. A. 99–
2210GTV, CIV. A. 99-2217GTV 2001 WL 1098032, at *1 (D. Kan. Sept. 17, 2001) (citing
Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 635 (D. Kan.1999)). “The
exception to this rule is that ‘a party has standing to move to quash a subpoena addressed to another
if the subpoena infringes upon the movant’s legitimate interests.’” Trujillo v. Bd. of Educ. of the
Albuquerque Pub. Schs., Nos. DIV 02-1146 JB/LFG, CIV 03–1185 JB/LFG, 2007 WL 2296916,
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at *1 (D.N.M. June 26, 2007) (quoting United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982)).
More specifically, a party has standing to object to a third-party subpoena only if “privilege or
privacy interest is shown. … However, ‘[f]or a party to have standing to challenge a subpoena
served on a non-party, there must be more than a conclusory assertion that the subpoenas seek
documents that are private, confidential, and commercially sensitive.’” Lodestar Anstalt v. Route
66 Junkyard Brewery, CV 17-0062 JCH/JHR, 2019 WL 1795535, at *8 (D.N.M. Apr. 24, 2019)
(quoting Powell v. Allied Universal Sec. Servs., CV 12-6133 ARR/SJB, 2018 WL 4378168, at *1
(E.D.N.Y. 2018) (quoted authority omitted)).
Defendant Martinez argues that the personnel files sought by the subpoenas include
personal and confidential information. (Doc. 126 at 4). He cites Singletary v. Sterling Transport
Co., 289 F.R.D. 237 (E.D. Va. 2012), for the proposition that he possesses a personal right in the
information contained in his employment records sufficient to confer standing. The Singletary
court noted that “numerous courts from within a wide variety of circuits have approved the
existence of such a right and have held that such parties have standing to challenge subpoenas
directed to their former employers.” Id. at 239 (citing cases). While no cases from within this
District are cited in Singletary and none have any been cited by the parties in the briefing, the
Court finds that Defendant Martinez has a privacy interest in his employment records sufficient to
confer standing to move to quash the subpoenas.1
1 Courts also have found that they have the “inherent authority to address discovery issues including quashing or
modifying Rule 45 subpoenas where a moving party does not have standing to challenge a subpoena issued to a
nonparty.” McKinney v. Granite Peak Fabrication, LLC, Civil No. 19-CV-266-J, 2021 WL 7252981, at *2-3 (D. Wyo.
Aug. 24, 2021) (quoting Copeland v. C.A.A.I.R., Inc., No. 17-CV-564-TCK-JFJ, 2020 WL 972754, at *3 (N.D. Okla.
Feb. 28, 2020)); see also Alsaadi v. Saulsbury Indus., Inc., No. 2:23-CV-291 KG/KRS, 2024 WL 2896115, at *2
(D.N.M. June 10, 2024). Because the Court finds that Defendant Martinez has standing to challenge the subpoenas,
the Court need not rely on its inherent authority here.
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B. 	Relevancy/Scope Issue
It is generally accepted that the scope of discovery under a subpoena is the same as the
scope of discovery under Rule 26(b). See Quarrie v. Wells, Civ. No. 17-350 MV/GBW, 2020 WL
4934280, at *2 (D.N.M. Aug. 24, 2020) (“A subpoena to a third party under Rule 45 is subject to
the same discovery limitations as those set out in Rule 26.” (internal quotation marks and citation
omitted)); FED. R. C IV. P. 45(d)(1) advisory committee note (explaining the 1970 amendments
“make it clear that the scope of discovery through a subpoena is the same as that applicable to Rule
34 and the other discovery rules”). In general, a party
may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access
to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.
FED. R. C IV. P. 26(b)(1).
In Singletary, the court found that the third-party subpoenas at issue, seeking the plaintiff’s
entire employment file from his former employers, were “not limited to seeking only those
documents relevant to th[e] [plaintiff’s] FLSA overtime compensation action or the claims based
upon an oral employment contract,” and therefore were “overly broad on their face.” Singletary,
289 F.R.D. at 241. Like Singletary, several other cases cited by Defendant Martinez also involve
claims against an employer for overtime compensation under the Fair Labors Standard Act
(“FLSA”), 29 U.S.C. § 201, et seq., in which the defendant employer sought the entire personnel
file from the former employers of the named plaintiffs and opt-in plaintiffs, including but not
limited to job application(s), interview notes, performance evaluations, termination or resignation
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notices, payroll records, and income tax forms. The courts in question found the plaintiffs’ prior
employment history to be “marginally relevant” to the claims at issue, which concerned whether
the defendant had failed to pay the statutorily required overtime compensation. Hendricks v. Total
Quality Logistics, LLC, 275 F.R.D. 251, 252, 254 (S.D. Ohio 2011) (where the defendant issuing
forty-two subpoenas duces tecum to prior and subsequent employers, court holds that “plaintiffs’
former job duties and personnel files have little to no bearing on the ultimate legal question of
whether plaintiffs were exempt from the FLSA overtime pay requirements while employed by
defendant”); see also Singletary, 289 F.R.D. at 241 (finding that the subpoenas were “both
overbroad and not tailored to a particular purposes”); Barrington v. Mortgage IT, Inc., No. 07-
61304-CIV, 2007 WL 4370647, at *4 (S.D. Fla. Dec. 10, 2007) (stating that records of the
plaintiffs’ former employers did “not appear relevant to the claims or defenses” in the case
concerning “whether Plaintiffs worked for Defendant more than 40 hours a week without receiving
overtime compensation and whether Defendant properly classified Plaintiffs’ positions as exempt
from the FLSA overtime provisions”).
Three other cases cited by Defendant Martinez involve employment discrimination claims,
in which the defendants argued that the plaintiffs’ entire personnel files from former employers
were relevant to issues such as the plaintiffs’ mitigation efforts, qualifications, and credibility. See,
e.g., Lewin v. Nackard Bottling Co., No. CV 10-8041-PCT-FJM, 2010 WL 4607402 (D. Ariz.
Nov. 4, 2010); U.S. E.E.O.C. v. Vista Unified Sch. Dist., Civil No. 07-1825-IEG(LSP), 2008 WL
4937000 (S.D. Cal. Nov. 17, 2008); Maxwell v. Health Ctr. of Lake City, Inc., No. 3:05CV1056-
J-32MCR, 2006 WL 1627020 (M.D. Fla. June 6, 2006). The courts found that “the subpoenas
[were] not likely to lead to relevant, admissible evidence, and therefore not discoverable under
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Rule 26(b)(1).” Lewin, 2010 WL 4607402, at *1; see also U.S. E.E.O.C., 2008 WL 4937000, at
*3 (“The subpoenas issued to the Charging Party’s previous employers seek information that is
not relevant to any claim or defense in this litigation and are overbroad.”); Maxwell,2006 WL
1627020, at *4 (rejecting the defendant’s argument that the discovery was justified because
whether the plaintiff had filed previous complaints of racial discrimination, harassment or
allegations of hostile work environment was relevant to the plaintiff’s allegations of discrimination
in that case).
This case involves claims of an entirely different nature than the FLSA and employment
discrimination claims at issue in the cases cited by Defendant Martinez. Plaintiff alleges that
Defendant Martinez, a sheriff’s deputy employed by the Doňa Ana County Sheriff’s Office,
sexually assaulted her after handcuffing her and placing her in the back of his patrol car. As
Plaintiff further explains, “[t]he requested documents pertain to Defendant Martinez’s fitness and
conduct as a law enforcement officer, which are central to the issues of liability and credibility in
this case.” (Doc. 120 at 2). Defendant Martinez, on the other hand, argues that his prior
employment records “have no relation to the claims brought” against him. (Doc. 117 at 9). But
Martinez does little more than repeatedly assert that the information and documents in his
personnel files have no bearing on Plaintiff’s claims in this case. “Simply proclaiming …
‘irrelevant’ … fails to meet [Defendant Martinez’s] burden and it is not this Court’s responsibility
to find supportive law.” Morgan v. Ramsey, No. 11-CV-451-TCK-PJC, 2012 WL 12837281, at *2
(N.D. Okla. Oct. 26, 2012). Likewise, parroting “the time-honored cry of ‘fishing expedition’” and
little more, will not “serve to preclude a party from inquiring into the facts underlying” that party’s
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or her opponent’s case. Mason v. Stock, 869 F. Supp. 828, 835 (D. Kan. 1994) (internal quotation
marks and citation omitted).
Instead, “[w]hen the requested discovery appears relevant, the party opposing discovery
has the burden of establishing the lack of relevance by demonstrating that the requested discovery
does not come within the scope of relevance set forth in Rule 26(b)(1), or that it is of such marginal
relevance that the potential harm occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure.“ Morgan, 2012 WL 12837281, at *3. Even after the
2015 amendments to Rule 26(b)(1), “[r]elevance is still to be construed broadly to encompass any
matter that bears on, or that reasonably could lead to other matter that could bear on any party’s
claim or defense.” Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 380 (D.N.M. 2018)
(internal quotation marks and citation omitted); see generally Garcia v. State Farm Mut. Auto. Ins.
Co., No. 1:24-cv-1286 KK/KRS, 2025 WL 2966364, at *4-6 (D.N.M. Oct. 21, 2025).
The Court agrees with Plaintiff that the requested employment records potentially contain
information relevant to whether Defendant Martinez committed the alleged acts of sexual assault.
See, e.g., F ED. R. EVID. 415(a) (“In a civil case involving a claim for relief based on a party’s
alleged sexual assault …, the court may admit evidence that the party committed any other sexual
assault ….”). The records may also contain information relevant to Plaintiff’s claim that Martinez
intentionally destroyed audio and video evidence, as well as information bearing on Martinez’s
credibility and on punitive damages.2 While evidence of similar bad acts (whether sexual assault
or destruction of evidence) “is not admissible to prove a person’s character in order to show that
2 One factor in determining punitive damages against Martinez is “whether the conduct involved repeated action
versus an isolated incident.” Leon v. FedEx Ground Package Sys., Inc., 313 F.R.D. 615, 635 (D.N.M. 2016).
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on a particular occasion the person acted in accordance with the character,” it may be admissible
“for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b)(1), (2); see Morgan, 2012
WL 12837281, at *4 (“Evidence of civilian complaints may lead to discoverable evidence
inasmuch as it could establish a pattern, and show Defendant’s intent or absence of mistake[.]”).
“Plaintiffs in federal civil rights actions are presumptively entitled to ... documents on prior
complaints and police history.” Morgan, 2012 WL 12837281, at *4 (quoting King v. Conde, 121
F.R.D. 180, 198 (E.D.N.Y. 1988); and Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir. 1989)
(reprimands are discoverable as they relate to the officers’ work). “In Spell v. McDaniel, 591
F. Supp. 1090 (4th Cir. 1987), discovery was allowed not only regarding the complained of
incident itself, but also as to the defendant officer’s prior conduct in the police department.
Regardless of the outcome of the complaints, prior civilian complaints are discoverable.” Id.
(citing, inter alia, Ismail v. Cohen, 899 F.2d 183, 188 (2d Cir. 1990) (admission into evidence that
officer committed similar misconduct in another incident was not error); United States v. Neal,
No. 11-CR-00163-WJM, 2011 WL 4829664, at *2 (D. Colo. Oct. 12, 2011) (personnel records
may include relevant information pertaining to the officer’s credibility and may be admissible for
impeachment)).
The issue at this stage of the proceedings is not whether such evidence would be admissible
at trial but only whether it is discoverable. See FED . R. C IV. P. 26(b)(1) (“Information within th[e]
scope of discovery need not be admissible in evidence to be discoverable.”). “Undoubtedly, many
of the items in the police files are not going to be admissible at trial. However, the pertinent issue
at present is discoverability, not admissibility, and this judge will not be unwittingly drawn into
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making premature determinations that certain items are inadmissible.” Mason, 869 F. Supp. at 835.
Martinez asserts that, “[o]ther than the present matter, at no time has [he] ever been accused of
rape, sexual misconduct or sexual abuse while on duty.” (Doc. 126 at 6). But a statement by
counsel in a brief is not evidence, see Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir.
1980), and even if it was, Plaintiff is not required to take Martinez at his word. She is entitled to
discovery to determine whether Martinez’s assertion of no prior accusations of sexual misconduct
is true.3
Although it is not necessary to upholding the discovery at issue since the discovery is
relevant for other purposes, the Court also finds that the subpoenas seek relevant information
concerning what the County “knew or should have known about Martinez’s proclivities before
hiring him.” (Doc. 120 at 2). According to Plaintiff, this information is relevant because the County
is taking the position that “it is not a culpable party to the reprehensibility of Martinez’s actions”
and therefore will not be responsible for paying any punitive damages the jury may award. (Id.).4
Defendant Martinez responds that there are no pending claims against the County in this matter,
and that, “[a]s such, what the County knew or should have known about Martinez’[s] proclivities
before hiring him in no way relates to any party’s claim or defense.” (Doc. 126 at 2). The Court
acknowledges that Plaintiff dismissed her claims against the County. But thereafter the presiding
judge granted the County’s motion to intervene as a defendant, finding that, “[s]hould the
3 Moreover, sexual assault is not the only misconduct of which Martinez is accused. Plaintiff has alleged a separate
claim for spoilation of evidence, which could be supported by evidence of similar misconduct while employed
elsewhere.
4 Martinez asserts that the County is immune from punitive damages under 42 U.S.C. § 1983. See (Doc. 126 at 8). As
Martinez well knows, however, the issue here is not the County’s liability under § 1983 but its potential liability under
New Mexico statutory law related to indemnification of officers acting within the scope of their employment.
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factfinder determine that Martinez was acting within the scope of his duties as a public employee,
Martinez may be fully indemnified under the New Mexico Tort Claims Act by the County,” and
“the County may then be responsible for paying any punitive damages awarded.” (Doc. 63 at 3
(citing N.M. Stat. Ann §§ 41-4-20, 41-4-4(C))). The intervention order thus concludes that the
County has “a direct, substantial, and legally protectable interest in the outcome of the litigation,
especially concerning punitive damages because who pays punitive damages and their financial
worth is likely relevant evidence for the fact finder.” (Id. (internal quotation marks and citation
omitted) (emphasis added)).
The Court understands Martinez’s argument that, because Plaintiff has no claim against the
County, punitive damages, if awarded, would be against Martinez and not the County. But if, as
the intervention order seems to suggest, evidence of the County’s financial worth will be
admissible at trial (assuming Martinez is found to be entitled to indemnification by the County),
then the Court cannot say for certain that the jury would not be allowed to also consider evidence
of what the County knew or should have known about Martinez in assessing the amount of punitive
damages to award. The Court simply cannot say at this stage of the proceedings (1) whether the
County will be legally obligated to indemnify Martinez; (2) if so, whether evidence of that fact
will be presented to the jury;5 and, (3) if so, whether that means Plaintiff would also be entitled to
present evidence concerning what the County knew or should have known about Martinez.
5 Although the intervention order suggests that the answer to that question is yes, the order does not discuss the basis
for that suggestion in any detail, and the Court notes that there is disagreement in the case law over whether a jury in
a § 1983 action should be instructed that the state will indemnify an employee. Compare Larez v. Holcomb, 16 F.3d
1513, 1519 (9th Cir. 1994) (holding it was error to so instruct the jury), with Wallace v. Poulos, 861 F. Supp. 2d 587,
601 (D. Md. 2012) (rejecting the holding in Larez on the ground that the court’s reasoning overlooks the fact that
consideration of a defendant’s wealth, while irrelevant to compensatory damages, is “integral” in the realm of punitive
damages).
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Fortunately, the Court is not concerned here with what evidence will be admissible at trial but only
with what information is discoverable. And given the intervention order and the County’s
involvement as a litigating defendant in this lawsuit, the Court is wary of saying that the
information sought by Plaintiff concerning the County’s knowledge has no relevancy to Plaintiff’s
ability to prosecute her claims in this case, even though the complaint asserts claims against
Martinez only. See Morgan, 2012 WL 12837281, at *3 (“A discovery request should be allowed
unless it is clear that the information sought can have no possible bearing on the claim or defense
of a party.” (internal quotation marks and citation omitted)).
The Court acknowledges Defendant Martinez’s asserted privacy concerns in his personnel
files. See Ortega v. San Diego Police Dep’t, No. 13-CV-87-LAB JMA, 2013 WL 5724032, at *2
(S.D. Cal. Oct. 21, 2013) (“With respect to a party’s assertion of privacy rights as a means to
protect documents from discovery, federal courts ordinarily recognize that a constitutionally-based
right of privacy can be raised in response to discovery requests.”). The Tenth Circuit has noted
that “personnel files often contain sensitive personal information ... and it is not unreasonable to
be cautious about ordering their entire contents disclosed willy-nilly.” Regan–Touthy v. Walgreen
Co., 526 F.3d 641, 648 (10th Cir. 2008). However, “[t]his is not to say personnel files are
categorically out-of-bonds.” Id. at 649. “The same rule is generally applied to law enforcement
personnel records, but the privacy interest of an officer should be construed very narrowly.”
Morgan, 2012 WL 12837281, at *3. “[T]he privacy interests of police officers in personnel records
‘should be especially limited in view of the role played by the police officer as a public servant
who must be accountable to public review.’” Mason, 869 F. Supp. at 833 (quoting King, 121
F.R.D. at 191); see also Ortega, 2013 WL 5724032, at *2 (“In the context of the disclosure of
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police files, courts have recognized that privacy rights are not inconsequential[,]” but “must be
balanced against the great weight afforded to federal law in civil rights cases against police
departments.” (internal quotation marks and citations omitted)). The cases cited by Martinez to
rebut this case law all involve a court’s denial of a criminal defendant’s request for access to police
personnel files. See (Doc. 126 at 4-5). Those cases are distinguishable because discovery is much
more limited in criminal cases than in the civil context.6 “As the Tenth Circuit has indicated, there
is a compelling interest in the ascertainment of truth, and when the case ‘involves a “swearing
match” between the [plaintiff] and [the] accused … police officer[ ], ascertainment of the truth is
of particular importance.’” Morgan, 2012 WL 12837281, at *4 (quoting Denver Policemen’s
Protective Ass’n v. Lichtenstein, 660 F.2d 432, 436 (10th Cir. 1981)).
Defendant Martinez vaguely references case law discussing a “constitutionally based
privacy interest” and possible “privilege” in a law enforcement officer’s psychological records.
(Doc. 126 at 4). Martinez’s argument appears to confuse discovery of privileged information or
documents with discovery of information or documents that are not privileged but implicate a
party’s privacy interests. Privileged information or documents are protected from discovery
regardless of whether the information is relevant to any claims or defenses. See F ED. R. C IV. P.
26(b)(1); Auguste v. Alderden, No. CIV.A.03CV02256WYDKL, 2008 WL 3211283, at *3
(D. Colo. Aug. 6, 2008). In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court recognized
there exists a psychotherapist-patient privilege under federal common law. But if Martinez is
attempting to raise a privilege argument based on Jaffe as to some of the documents contained in
6 See Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962) (noting that “[w]hile the Federal Rules of Civil
Procedure have provided a well-stocked battery of discovery procedures, the rules governing criminal discovery are
far more restrictive”).
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his personnel records, he has done so only superficially and so has waived the issue. See, e.g.,
Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 880 & n. 9 (10th
Cir.1997). Insofar as Defendant Martinez’s privacy interests are concerned, those interests are
adequately protected by the Confidentiality Order already entered in this case. See (Doc. 149,
¶¶ 1(a), (c) (defining “Confidential Information” to include all medical and psychological records
of all parties and all materials contained in employment or personnel files of any party); Morgan,
2012 WL 12837281 at *3–4 (personnel files ordered produced subject to confidentiality order).
Finally, Defendant Martinez asserts that the burden of producing the information sought
by the subpoenas is “not proportional to the present case.” (Doc. 126 at 9). The Court questions
whether Martinez has standing to assert that the third parties named in the subpoenas will be unduly
burdened by responding to the subpoenas. But in any event, he fails to support the argument
beyond a conclusory assertion of burdensomeness and disproportionality. As Plaintiff points out,
“[t]he entities subpoenaed are governmental agencies accustomed to handling such requests.”
(Doc. 120 at 4). In the absence of any objection from the subpoenaed parties or evidence to support
burdensomeness or lack of proportionality, the Court finds that the subpoenas are not unduly
burdensome and that the information sought is proportional to the needs of the case considering
the serious nature of the allegations, including sexual assault and intentional spoliation of evidence.
The potential benefit of obtaining the information sought outweighs the potential burden on the
responding entities.
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Conclusion
For the foregoing reasons, Defendant Michael Andrew Martinez’s Motion To Quash
Subpoenas, Doc. 117, is DENIED.
IT IS SO ORDERED this 15th day of January 2026.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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