United States of America v. Diagnostic Physicians Group, P.C. et al

Filing 365

ORDER granting 205 Motion to Quash. Signed by Magistrate Judge Sonja F. Bivins on 6/9/2014. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
ex rel., Christian M. Heesch,
Plaintiffs,
VS.
DIAGNOSTIC PHYSICIANS GROUP,
P.C., et al.,
Defendants.

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* CIVIL ACTION NO. 11-00364-KD-B
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ORDER

This
Heesch’s
Defendant

action
Motion

is
to

Diagnostic

before
Quash
and

the

Two

Court

Non-Party

Physician’s

on

Relator

Subpoenas

Group,

P.C.

Christian
served

(Doc.

by

205).

The motion has been fully briefed, and a discovery conference
was conducted on March 29, 2014.

Upon consideration of the

motion, supporting memorandums and response in opposition, the
undersigned finds that the motion is to be GRANTED.
I. Background
This action was originally filed by relator, Christian M.
Heesch, against the named Defendant Diagnostic Physicians Group,
P.C. and others alleging violations of the False Claims Act
(“FCA”).

Dr. Heesch alleges that DPG retaliated against him and

terminated him because “of his undertaking the subject of the
qui tam action as set out in the United States Complaint in
Intervention.”

(Doc.

66

¶

94).

In

the

instant

motion,

Dr.

Heesch

seeks

to

quash

two

subpoenas

that

Physicians Group, P.C. (“DPG”) served on

Diagnostic

and

two of Dr. Heech’s

former employers, namely the University of Pittsburgh of the
Commonwealth

System

of

Higher

Education

(“University

Pittsburgh”) and Verde Valley Medical Center (“VVMC”)1.

of

In the

subpoena directed to the University of Pittsburgh, DPG seeks the
following categories of information:
(1) any and all documents relating to Dr.
Heesch’s
employment,
including
admitting
and
credentialing files, applications, personnel files,
professional training and assessment files, and any
communications with Dr. Heesch;
(2) any and all documents relating to Dr.
Heesch’s lawsuit against the University of Pittsburgh,
including any research and notes pertains to Dr.
Heesch;
(3) all nonprivileged communications with counsel
for the Univeristy of Pittsburgh concerning Dr.
Heesch’s lawsuit against the University;
(4) all communications
Arthur M. Feldman; and

between

Dr.

Heesch

and

(5) all communications regarding the resolution
of Dr. Heesch’s lawsuit against the University of
Pittsburgh.
(Doc. 205-1)
In

the

subpoena

directed

to

the

VVMC,

DPG

seeks

the

following categories of information:
1

Both the University of Pittsburgh and VVMC objected
to the subponeas as overly broad and unduly burdensome.
(Docs. 205-3; 205-4).

2

(1) any and all documents relating to Dr.
Heesch’s
employment,
including
admitting
and
credentialing files, applications, personnel files,
professional training and assessment files, and any
communications with Dr. Heesch;
(2) any and all documents relating to
Heesch’s lawsuit against the VVMC, including
research and notes pertains to Dr. Heesch;

Dr.
any

(3) all nonprivileged communications with counsel
for the VVMC concerning Dr. Heesch’s lawsuit against
VVMC;
(4) all communications
Michael O’Connor;

between

Dr.

Heesch

and

(5) all communications
Craig Owens; and

between

Dr.

Heesch

and

(6) all communications regarding the resolution
of Dr. Heesch’s lawsuit against VVMC.
(Doc. 205-2).
Dr. Heech argues that he has standing to challenge the
subpoenas because they seek his past employment information and
he has a personal interest in this information, that some of the
requested information is subject to a confidentiality agreement
and is therefore not discoverable, and that information related
to his past employment is in no way relevant to this action nor
is it likely to lead to admissible evidence. (Docs. 205, 285).
DPG filed a motion to enforce the subpoena issued to VVMC
(Doc. 248).

Later, on May 12, 2014, DPG withdrew its motion to

enforce the subpoena issued to VVMC (Doc. 266), and on the same
day, DPG filed a response in opposition to Dr. Heech’s motion to

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quash.

(Doc.

277).

In

the

response,

DPG

argues

that

Dr.

Heesch’s prior employment records, particularly those reflecting
on

Dr.

Heesch’s

directly

disruptive

relevant

to

“the

and

uncooperative

legitimacy

and

analysis

reasons for firing Dr. Heesch”. (Id., at 4).
that

information

pertaining

to

Dr.

behavior,
of

are

DPG’s

DPG also contends

Heesch’s

settlement

of

lawsuits against his former employers is not privileged. (Id.,
at 5).
II. Discussion
An individual generally does not have standing to challenge
a subpoena served on a third party unless that individual has a
personal right or privilege with respect to the subject mater of
the subpoena. See Barrington v. Mortage IT, Inc., 2007 U.S.
Dist. LEXIS 90555, at *8, 2007 WL 4370647 (S.D. Fla. Dec. 10,
2007)

(“These

records

confidential

likely

information....

contain

highly

Therefore,

[the

personal

and

plaintiffs’]

personal right to the employment records is sufficient to confer
standing
tecum.”).

[on

them]

As

noted

to

move

supra,

to
Dr.

quash
Heesch

the

subpoenas

asserts

that

duces
he

has

standing with respect to information contained in his employment
records, and DPG has not argued otherwise.
The scope of discovery under a Rule 45 subpoena is the same
as the scope o discovery under Rule 26. Id.
discovery

of

“any

non-privileged

Rule 26(b) permits

information

4

relevant

to

any

claim

or

defense”

information

that

and

is

is

broadly

reasonably

construed

calculated

discovery of admissible evidence.

to

to

include

lead

to

the

However, Rule 26(c) affords

the court discretionary power to enter a protective order where
good cause is shown.
order

to

protect

oppression

or

therewith,

may

Under the rule, the court may issue an
a

undue

party
burden

forbid

the

from
or

annoyance,

expense,

discovery,

and

limit

embarrassment,
in
the

connection
scope

of

discovery, and/or require the discovery be taken in a different
manner than that chosen by the party seeking discovery. Burch v.
P.J. Cheese, Inc., 2010 U.S. Dist. LEXIS 143543, 2010 WL 9081738
(N.D. Ala. Aug. 20, 2010).
The
authority

parties

have

supporting

both

their

provided
respective

the

court

positions.

with
See

case
United

States ex. rel. Simms v. Austin Radiological Assoc., 2013 Dist.
LEXIS 37196, 2013 WL 1136668 (W.D. Tex. Mar. 18, 2013); Stewart
v. Orion Federal Credit Union, 285 F.R.D. 395, 398-99 (W.D.
Tenn. 2012). Based upon a review of the authority cited by the
parties,

and

a

review

of

the

record,

the

undersigned

is

persuaded that while there are circumstances under which the
employment records from a plaintiff’s past employers could be
relevant, in this case, the subpoenas, as issued are due to be
quashed as overly broad. See Barrington, supra, 2007 U.S. Dist.
LEXIS 90555, at *14-16 (In granting motion to quash, the court

5

held that “[e]ven were the court able to find that Plaintiffs’
prior employment history is marginally relevant to their exempt
status, the subpoenas duces tecum at issue are overly broad on
their face”.).

Dr. Heech was employed by the University of

Pittsburgh as a fellow and then as an assistant professor of
medicine during the period of 1994 through 1996, and he held
staff positions in Arizona from 2001 through 2003. (Doc. 285-1).
DPG served substantially similar subpoena requests on both the
University of Pittsburgh and VVMC seeking not only Dr. Heesch’s
complete

personnel

communications
Heesch.

and

file,

but

documents

also

relating

seeking
or

any

pertaining

and
to

all
Dr.

The subpoenas also seek all documents, including notes

and research, related to Dr. Heesch’s lawsuits against these
entities.
In

As drafted, these subpoenas are clearly overly broad.

addition,

they

command

production

limitation contained in Rule 45.
quashed.

beyond

the

geographical

Thus, they are due to be

Accordingly, Dr. Heech’s motion is GRANTED.

DONE this 9th day of June, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

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