Phillips et al v. Encompass Health Corporation et al
Filing
23
MEMORANDUM OPINION. Signed by Judge R David Proctor on 10/3/2018. (KAM)
FILED
2018 Oct-03 PM 01:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NEAL PHILLIPS, et al.,
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Plaintiffs,
v.
ENCOMPASS HEALTH
CORPORATION, et al.,
Defendants.
Case No.: 2:18-CV-442-RDP
MEMORANDUM OPINION
This case is before the court on Defendants’ Amended Motion to Quash or Modify
Plaintiffs’ Subpoena to the VanAllen Group, Inc. and Motion for a Protective Order. (Doc. # 19).
The Motion is fully briefed (see Docs. # 19-20, 22), and it is ripe for decision. After careful review,
and for the reasons explained below, the court concludes that Defendants’ Motions are due to be
granted in part and denied in part.
I. Factual and Procedural Background
Plaintiffs Neal Phillips and Keith Clevenger (“Plaintiffs”) were employed by Defendants
Encompass Health Corporation (“Encompass Health”) and Encompass Health Aviation, LLC
(“Encompass Aviation”) (collectively, “Defendants”) as aviation maintenance employees from
March 2015 to March 2018. (Doc. # 1). They now bring this action pursuant to the Fair Labor
Standards Act, 29 U.S.C. §201 et seq., to remedy Defendants’ alleged violations of the wage
provisions of the FLSA. (Doc. # 1 at ¶ 14). Plaintiffs assert that Defendants have deprived them
of their lawful minimum and/or overtime wages. (Id.).
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As part of discovery, on August 10, 2018, Plaintiffs served a subpoena on VanAllen Group,
Inc. (“VanAllen”) (Doc. # 19-1), an entity Defendants have characterized as “a third party
consulting firm that provided Encompass Aviation confidential and proprietary review and
analysis of its Aviation services.” (Doc. # 19). Plaintiffs sent an email to Defendants’ counsel on
August 6, 2018, notifying them of intent to serve the subpoena. (Doc. 20 at ¶ 1). The parties also
agreed that all documents produced by VanAllen would be shared with Defendants. (Id.).
The subpoena requests that VanAllen produce the following three categories of documents:
(1) Any and all notes, records, reports, correspondence, documents, notices, or
other writings which in any manner reflect, relate, refer or pertain to the
payment of salaries, wages, compensation or overtime by Encompass Health
Corporation or Encompass Health Aviation, LLC to any "Aviation Tech" or any
"Aviation Tech Supervisor", including but not limited to any and all documents
and records which reflect investigations conducted or recommendations
provided by Don Henderson or Don White to Encompass Health Corporation
or Encompass Health Aviation, LLC from January 2014 to the present.
(2) All reports or presentations you have prepared or presented that refer or relate
to the payment of overtime to aviation maintenance employees, whether
employed by Encompass Health Corporation or Encompass Health Aviation,
LLC or otherwise.
(3) Any notes, reports, correspondence, notices, documents or other writings that
refer to William Poynter, Elaine Karabatsos, Cheryl Levy, Jay F. Grinney, Neal
Phillips or Keith Clevenger.
(Doc. # 19-1).
VanAllen has filed nothing with the court in opposition to the subpoena. (Doc. 20 at ¶ 4).
However, on August 22, 2018, VanAllen’s counsel emailed Plaintiffs a letter detailing two
objections targeted at Requests Two and Three of the subpoena. (Doc. # 19-2). The letter does not
express VanAllen’s agreement to produce any documents responsive to these requests, but it states
that “VanAllen will produce the documents responsive to the request in this Paragraph (1).” (Id.).
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II. Discussion
The parties’ disagreement revolves around Request One of the subpoena. Specifically,
Defendants object pursuant to Federal Rule of Civil Procedure 45(d)(3)(B)(i), which allows a court
to quash or modify a subpoena if it requires “disclosing a trade secret or other confidential
research.” Here, Defendants argue that the Request should be modified because it “requires
disclosure of confidential research by VanAllen gathered in connection with preparing proprietary
reports.” (Doc. # 19 at 3). They seek, at the least, modification of the Request so that VanAllen
may produce only “final report[s] provided by VanAllen to Encompass regarding the wages of any
Encompass Aviation Technician or Aviation Technician Supervisor from March 2015 to March
2018.” (Id. at 5).
Of course, the “movant bears the initial burden of establishing that the information sought
is…confidential information which qualifies for protection and that its release might be harmful
to the movant.” Centurian Industries, Inc. v. Warren Steurer and Assocs., 665 F.2d 323, 325 (10th
Cir. 1981). Defendants somewhat arbitrarily suggest that limiting the Request to VanAllen’s “final
reports” would minimize the danger of producing protected information. (Doc. #19 at 3-4). They
offer no theory as to why the requested information is confidential, why the release of such
information would cause them harm, or why limiting the request to “final reports” would prevent
them from suffering the alleged harm.1 Consequently, Defendants have not carried their burden of
showing that Request One asks for confidential information that, if released, would cause
Defendants harm. Request One will not be modified to require the production of only “final
reports.”
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It should also be noted that VanAllen, the party who will ultimately have to produce this allegedly confidential
information, does not object to Request One. (Doc. # 19-2).
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Defendants also argue that Request One is overbroad because it asks for documents created
from January 2014 to the present. (Id. at 3). Defendants insist that the relevant and discoverable
period is between March 2015, the month Plaintiffs began working for Defendants, and March
2018, the month the suit was filed. The court is inclined to agree. Due to the particular nature of
an overtime wages action under the FLSA, the only relevant and discoverable time period is the
period during which Plaintiffs were employed by Defendants and allegedly denied overtime
wages. Anything before or after their employment is irrelevant because it does not relate “to the
subject matter involved in the pending action.” See Federal Rule of Civil Procedure 26(b)(1).
Request One will therefore be modified to require only information and documents from March
2015 to March 2018 be produced.
Interestingly, there seems to be no dispute between the parties with regard to Requests Two
and Three in the subpoena. By declining to address Requests Two and Three in their Response in
opposition to Defendants’ Motion (see generally, Doc. # 20), Plaintiffs have effectively “narrowed
their subpoena to seek only the information in Request [One].” (Doc. # 22 at 2). In fact, Plaintiffs
have indicated that they “are satisfied with the VanAllen Group’s agreement to produce all
documents responsive to paragraph (1) of the [s]ubpoena and do not have any disputes or
differences with the VanAllen Group at this time.” (Doc. # 20 at ¶ 8). Because Plaintiffs did not
present the court with any argument in favor of the inclusion of Requests Two and Three,
Defendants’ Motion to Quash is granted in part. Requests Two and Three are hereby quashed.
Likewise, there is no dispute over whether a protective order should be entered “prohibiting
the dissemination or use of such confidential and proprietary information outside of this case.”
(Doc. # 19 at 6).2 As stated in Plaintiffs’ Response, “Plaintiffs do not object to the issuance of a
In fact, there doesn’t seem to be a significant dispute between the parties necessitating motion practice before the
court. The parties are advised that in the future, in this case and otherwise, they should meet and confer with
2
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protective order to keep those business records produced in response to the [s]ubpoena
confidential.” (Doc. # 20 at ¶ 18). Given the parties’ agreement on this matter, Defendants’ Motion
for a Protective Order is granted. The parties shall submit a proposed protective order to the court
on or before October 12, 2018.
III. Conclusion
For the reasons discussed above, Defendants’ Amended Motion to Quash or Modify
Plaintiffs’ Subpoena to the VanAllen Group, Inc. and Motion for a Protective Order. (Doc. # 19)
is granted in part and denied in part. Defendants’ Motion to Modify (Doc. # 19) is partially granted
as to Request One. Plaintiffs may seek information and documents, not limited to final reports,
from only the March 2015 to March 2018 time frame. Defendants’ Motion to Quash (Doc. # 19)
is also granted with respect to the information sought in Requests Two and Three, which are due
to be stricken from the subpoena. Finally, Defendants’ Motion for a Protective Order (Doc. # 19)
is granted. The parties shall submit a proposed protective order to the court on or before October
12, 2018.
An Order will be entered contemporaneously with this Memorandum Opinion.
DONE and ORDERED this October 3, 2018.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
opposing counsel on minor disagreements before involving the court. This particular “dispute” likely could have
been resolved quickly (and without judicial intervention) had the parties done so.
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