UNITED STATES OF AMERICA v 3M COMPANY

Filing 16

ORDER denying 1 Motion to Quash by United States. Signed by MAGISTRATE JUDGE GARY R JONES on 10/14/20. (grj)

Case 3:20-mc-00053-MCR-GRJ Document 16 Filed 10/14/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
IN RE: 3M COMBAT ARMS
EARPLUG PRODUCTS LIABILITY
LITIGATION,

Case No. 3:19-md-2885
Judge M. Casey Rodgers
Magistrate Judge Gary R. Jones

This Document Relates to:
United States v. 3M Company
Case No. 3:20-mc-53
_________________________________/
ORDER
Pending before the Court is the Government’s motion to quash
Defendants’ non-party deposition subpoena to Ms. Cheryl Parker (an
employee of the Department of Veterans Affairs) pursuant to Federal Rule
of Civil Procedure 45 and United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951) (“Touhy”). MC ECF No. 1.1 Judge Richard Gergel transferred
the motion to quash from the District of South Carolina to this Court on
October 5, 2020, MC ECF No. 9, and Defendants have filed a response in
opposition to the motion, MC ECF No. 14. For the reasons discussed
below, the Government’s motion is DENIED.

1

For ease of reference, citations to the docket in this miscellaneous matter (Case No.
3:20-mc-53-MCR-GRJ) are “MC ECF No. __.” Citations to the docket in the MDL (Case
No. 3:19-md-2885-MCR-GRJ) are “MDL ECF No. __.”

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This motion is one of a series of petitions or motions to question filed
by the Government concerning Defendants’ discovery subpoenas to
current VA employees. See United States v. 3M Company, Case No. 3:20mc-49-MCR-GRJ, ECF No. 1 (N.D. Fla. Sept. 2, 2020) (as to Dr. Leslie
Schulman); United States v. 3M Company, Case No. 3:20-mc-54-MCRGRJ (N.D. Fla. Sept. 18, 2020) (as to Dr. Jodee Donaldson). Last week,
the Court entered a comprehensive order denying the Government’s
petition to quash a subpoena to VA audiologist Dr. Leslie Schulman. In re
3M Combat Arms Earplug Prods. Liab. Litig., No. 3:20-mc-49, 2020 WL
5994266, at *1 (N.D. Fla. Oct. 9, 2020) (“Schulman”). Because much of the
background, applicable law, and arguments addressed in Schulman are the
same as to Ms. Parker—and the parties are intimately familiar with them—
the Court will not restate them unless it is necessary to understanding the
Court’s reasoning.
I. BACKGROUND
This multidistrict litigation is a collection of products liability actions
concerned with whether Defendants were negligent in their design, testing,
and labeling of the nonlinear dual-ended Combat Arms Earplug Version 2
(the “CAEv2”). Plaintiffs are servicemembers, veterans, and civilians
seeking damages in this action for hearing loss, tinnitus, and related
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injuries caused by their use of the CAEv2. MDL ECF No. 704. Defendants
dispute these allegations. MDL ECF No. 959.
The Government is not a party to this litigation, MDL ECF No. 704 at
¶¶ 16-20, but the parties have identified the United States’ various
agencies and employees as critical sources of third-party discovery. On
July 28, 2020, Defendants sent the VA Office of the General Counsel a
request to take the deposition of Ms. Parker, an audiologist at the Ralph H.
Johnson VA Medical Center in Charleston, S.C. MC ECF No. 14-1.
Defendants stated that Ms. Parker’s testimony was relevant because she
conducted “at least one audiogram and hearing evaluation on Bellwether
Plaintiff Lloyd Eugene Baker, including in October 2009 in connection with
his application to the VA for disability benefits.” Id. at 2. Defendants
sought to depose Ms. Parker regarding:
(i) the October 2009 hearing evaluation and audiogram
appointment with Plaintiff Baker, and Dr. Parker’s records
relating to that evaluation (and any other hearing evaluations and
audiograms that Dr. Parker conducted of Plaintiff Baker); (ii) Dr.
Parker’s notes from her evaluation(s) of Plaintiff Baker; (iii) Dr.
Parker’s evaluation of the October 2009 audiogram and
associated notes; and (iv) any other evaluation or treatment that
Dr. Parker did of Plaintiff Baker or appointments that Plaintiff
Baker had with Dr. Parker.
Id. at 3.

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On August 19, 2020, in accordance with the Court’s direction
memorialized in Pretrial Order No. 50, Defendants issued a subpoena to
Ms. Parker for an in-person or remote deposition on September 14, 2020.
MC ECF No. 14-2. The VA objected to the subpoena in a letter to
Defendants’ counsel, dated September 8, 2020. MC ECF No. 14-3.
The VA’s objections are divided neatly into three categories. First,
the VA argued that Defendants’ subpoena is unduly burdensome because
removing Ms. Parker, a “mission-essential employee,” from her duties on
the VA’s “COVID response team”— which the VA described as an “integral”
group “responsible for daily communications with and the reporting of those
VA employees that have been have been tested or need to be tested for
COVID, have tested positive for COVID, and/or have experienced COVID
related symptoms”—would be “detrimental” to the VA and its COVID
response operations[.]” Id. at 3–4. In the same vein, the VA claimed that
Ms. Parker’s deposition is unnecessary because Defendants have Plaintiff
Baker’s treatment records, and Ms. Parker has no independent recollection
of treating Plaintiff Baker. Id. Second, the VA raised myriad procedural
objections to Defendants’ subpoena, challenging its breadth, notice,
service, and cumulative impact. Id. at 4–6. Finally, the VA argued that
Defendants’ request to depose Ms. Parker failed to satisfy nine of the 15
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factors enumerated in 38 C.F.R. § 14.804 for the VA to consider, which the
Court addresses below. Id. at 6–11.
II. LEGAL STANDARD
As this Court explained in Schulman, the Government’s motion to
quash is governed by the Housekeeping Statute (5 U.S.C. § 301), the VA’s
Touhy regulations (38 C.F.R. § 14.800, et seq.), and the Administrative
Procedure Act (“APA”) (5 U.S.C. § 706). Schulman, 2020 WL 5994266 at
**3–5; see also Westchester Gen. Hosp., Inc. v. Dep’t of Health and
Human Servs., 443 F. App’x 407, 409 n.1 (11th Cir. 2011); Moore v.
Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir. 1991). In short, there
are three important principles: (1) the Housekeeping Statute authorizes the
VA to adopt regulations concerning testimony by agency employees and
the production of government documents, Touhy, 340 U.S. at 463; (2) the
VA considers 15 factors set forth in § 14.804 when deciding under § 14.807
whether to authorize agency employees to testify or produce documents;
and (3) the Court must determine whether the VA’s decision to authorize or
preclude discovery from its employees is arbitrary and capricious under the
APA, such that the agency failed to “examine[] the relevant data” or
articulate “a rational connection between the facts found and the choice
made,” Dep’t of Commerce v. New York, 138 S. Ct. 2551, 2569 (2019).
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III. DISCUSSION
Turning to the dispute at hand, the Government argues that the
subpoena to Ms. Parker should be quashed because Defendants failed to
comply with the VA’s Touhy regulations, the VA’s decision to preclude Ms.
Parker’s deposition is not arbitrary and capricious, and the proposed
deposition is unduly burdensome under Rule 45. ECF No. 1 at 3–7.
Defendants say that they complied with the VA’s Touhy regulations by
providing the VA a written summary of the information sought and its
relevance to these proceedings, that the VA’s decision to preclude Ms.
Parker’s deposition is arbitrary and capricious because the agency failed to
consider the relevance of her testimony, and that the subpoena does not
impose any undue burden on Ms. Parker. ECF No. 14 at 3–6. Upon
review of the administrative record,2 the Court concludes that the
Government’s motion to quash is due to be denied. The Court will address
each of the Government’s arguments in turn.

2

“[I]n reviewing agency action, a court is ordinarily limited to evaluating the agency’s
contemporaneous explanation in light of the existing administrative record.” Dep’t of
Commerce, 139 S. Ct. at 2573. To the best of the Court’s knowledge, the Government’s
motion and Defendants’ response do not present extra-record material that was not
considered by the VA.

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A.

The Written Summary Requirement

As a preliminary matter, the Government contends that Defendants’
subpoena should be quashed because it does not comply with the VA’s
Touhy regulations. MC ECF No. 1 at 4–6. Specifically, the VA requires
that a “request or demand for testimony or production of documents” be
in, or accompanied by, a written statement by the party seeking
the testimony or records or by the party's attorney, a summary of
the nature and relevance of the testimony or records sought in
the legal proceedings containing sufficient information for the
responsible VA official to determine whether VA personnel
should be allowed to testify or records should be produced.
38 C.F.R. § 14.805. At first blush, the Government’s argument has some
traction. However, this argument fails on both the law and the applicable
facts.
For starters, the Court is not persuaded that the VA enjoys a right
under § 14.805 to deny an otherwise valid Touhy request—or, in this case,
to move to quash a subpoena of an employee—because the requesting
party did not provide the written statement contemplated by the regulation.
The regulation tells the VA how it should proceed when a written statement
is not provided. See 38 C.F.R. § 14.805 (“Where the materials are
considered insufficient to make the determination as described in § 14.807,
the responsible VA official may ask the requester to provide additional
information.”). Notably absent is what occurred here, the denial of the
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Touhy request and a motion to quash a subpoena because the request or
demand was supposedly insufficient. The Government’s offered
interpretation of § 14.805, therefore, seems implausible.
In any event, Defendants’ complied with this regulation because their
initial July 28, 2020, Touhy request provided the VA a summary of this
litigation, Ms. Parker’s relation to Plaintiff Baker’s case, and the topics for
deposition. MC ECF No. 14-1 at 2–3. The mere fact that Defendants did
not provide the same explanation to the VA with their subpoena is
inconsequential because Defendants had sufficient information from the
July 28, 2020, Touhy request to make the determination described in §
14.807. See Brown v. U.S. Dep’t of Veterans Aff., No. 2:17-cv-1181-TMP,
2017 WL 3620253, at *6 (N.D. Ala. Aug. 22, 2017) (“The combination of the
letter, the attached subpoena, and email correspondence plainly notified
the VA of the nature of the information sought from Dr. Khan and the
reasons it was needed….The VA had enough information before it to apply
the factors enumerated in § 14.804 and make a decision regarding the
testimony of Dr. Khan.”). Indeed, the VA referred to Defendants’ July 28,
2020, letter and their explanations in the agency’s decision to preclude Ms.
Parker’s deposition. MC ECF No. 14-3 at 2. The Court, therefore, will not
quash Defendants’ subpoena on this basis.
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B.

APA Review

The Government argues that the VA’s decision is not arbitrary and
capricious because the VA considered and applied the factors set forth in
38 C.F.R. §§ 14.804(a), (b), (c), (d), (f), (i), (j), (l), and (o). MC ECF No. 1
at 3–4; see also MC ECF No. 14-3 at 7–11. The VA’s conclusive reasoning
as to Ms. Parker is nearly identical to that underlying the agency’s decision
to preclude Dr. Schulman’s deposition. Compare id. (addressing Ms.
Parker), with Case No. 3:19-mc-49-MCR-GRJ, ECF No. 12-3 at 7–11. The
only material differences are that Ms. Parker is part of a COVID response
team, and her evaluation of Plaintiff Baker took place 11 years ago.
Nevertheless, the result is the same. That is, the VA’s reasoning fails APA
review because it is arbitrary and capricious.
First, the VA’s decision to withhold Ms. Parker’s testimony based on
her workload is irrational. Schulman, 2020 WL 5994266 at *6. Although
Defendants and the Court are not in the position to challenge the VA’s
assertion that Ms. Parker has a mission-essential role at the VA or the
agency’s judgment as to the allocation of its resources, Solomon v. Nassau
Cty., 274 F.R.D. 455, 459 (E.D.N.Y. 2011), the claim that she is “too busy”
as part of the VA’s COVID response team is essentially an impermissible
“blanket ban on all requests for testimony,” Moore, 927 F.2d at 1198, which
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is tantamount to an evidentiary privilege the Government does not enjoy.
This is because the VA only offered the conclusory assertion that the time
spent preparing Ms. Parker for deposition and the time spent in her
deposition would “equate to hours and days away from her mission-critical
position[.]” MC ECF No. 14-3 at 8. Indeed, the VA failed to offer any
rational explanation as to why Ms. Parker’s remote deposition could not
take place around her work obligations and at a time convenient for her.
This was error because the Government “may not refuse to comply with a
subpoena by generally asserting there is a national crisis or that it cannot
perform essential government functions.” Sentinel Cap. Orlando, LLC v.
Centennial Bank, No. 6:12-cv-785-Orl-36GJK, 2013 WL 12156678, at *6
(M.D. Fla. Apr. 2, 2013); see also Rhoads v. U.S. Dep’t of Veteran Aff., 242
F. Supp. 3d 985, 994–95 (E.D. Cal. 2017); Ceroni v. 4Front Engineered
Sols., 793 F. Supp. 2d 1268, 1278 (D. Colo. 2011).
Second, the VA failed to consider the relevancy of Ms. Parker’s
testimony based on her statement that she is unable to recall her
evaluation of Plaintiff Baker. MC ECF No. 14-3 at 8. Defendants, however,
plan to question Ms. Parker about her records from the evaluation, her
progress notes, and any other evaluation or treatment she provided to
Plaintiff Baker. MC ECF No. 14-1 at 3. This testimony is relevant to
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Plaintiff Baker’s supposed injuries, and—as with Dr. Schulman’s evaluation
of Plaintiff Vernon Rowe—Ms. Parker does not need an independent
recollection of the evaluation to explain Plaintiff Baker’s medical records or
her practices as an audiologist. Schulman, 2020 WL 5994266 at **6–7;
Brown, 2017 WL 3620253, at *8 n.12. The VA’s reasoning is also faulty
because the agency failed to consider whether Dr. Parker’s testimony
about these topics was “appropriate or necessary” under the rules
governing the admissibility of Ms. Parker’s examination records for Plaintiff
Baker. Portaleos v. Shannon, No. 5:12-cv-1359-LEK-TWD, 2013 WL
4483075, at *6 (N.D.N.Y. Aug. 19, 2013).
Third, the VA’s reasoning that its Touhy regulations counseled
against involving Ms. Parker in this litigation—by authorizing her to be
deposed—is untenable. Schulman, 2020 WL 5994266 at **7–9. Section
14.804(a) does not grant the VA an absolute evidentiary privilege from
third-party discovery requests not enjoyed by other disinterested witness,
and authorizing Ms. Parker’s factual testimony does not result in the
appearance that the VA is endorsing one party over the other in this private
litigation. Brown, 2017 WL 3620253, at *8; see also In re Vioxx Prods.
Liab. Litig., 235 F.R.D. 334, 346 (E.D. La. 2006) (the Government’s

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production “of a fact witness for a single deposition does not make [the
agency] a part of this litigation”).
In sum, the Court concludes the VA’s decision to preclude Ms.
Parker’s deposition is arbitrary and capricious.
C.

Federal Rules of Civil Procedure

The Government’s reliance on the Federal Rules of Civil Procedure
fares no better. 3 The Court must quash a subpoena that “subjects a
person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).
As a preliminary matter, the Government misstates the burden of
proof and legal standard under Rule 45(d)(3)(A)(iv). That is, the
Government argues incorrectly that the Court should quash Defendants’
subpoena because Defendants “cannot show a compelling reason the VA
should permit [Ms.] Parker’s deposition.” MC ECF No. 1 at 7. The
Government, in fact, bears the burden of proof on its motion to quash. In re
Application of Mesa Power Grp., LLC, 878 F. Supp. 2d 1296, 1306 (S.D.
Fla. 2012); Fadalla v. Life Auto. Prods., Inc., 258 F.R.D. 501, 504 (M.D.
Fla. 2007). And Rule 45 does not require a federal litigant to have a
“compelling reason” for third-party discovery. Instead, the Court looks to a

3

Although the Court must apply the APA’s arbitrary and capricious to disputes such as
this until the Eleventh Circuit or United States Supreme Court says otherwise, the Court
will address these arguments because it leads to the same result as APA review.

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variety of factors to determine if that third-party discovery is unduly
burdensome—the relevance of the information requested, the requesting
party’s need for discovery, the breadth of the request, the time period
covered, the particularity of the request, and the burden imposed. Andra
Grp., LP v. JDA Software Grp., Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015).
Moreover, the Government has not presented an affidavit or other
evidence in support of its claim of undue burden. This alone is a basis to
reject the Government’s claim. Green v. Cosby, 152 F. Supp. 3d 31, 37 (D.
Mass. 2015). Nevertheless, the Court has considered the evidence
proffered by the Government regarding Ms. Parker’s assignment to the VA
COVID response team, her inability to independently recall Plaintiff’s
examination, and the prior records as to Plaintiff Baker that the VA has
produced to Defendants, MC ECF No. 1 at 6–7, and concludes that
Defendants’ subpoena does not present an undue burden on the VA or Ms.
Parker. Schulman, 2020 WL 5994266 at *8. Defendants have asked Ms.
Parker to attend a brief, remote deposition to testify to her area of expertise
and a past evaluation of Plaintiff Baker. Compliance may be an
inconvenience for Ms. Parker, but this is no different than a subpoena to a
non-party treating physician or healthcare worker in any other personal
injury case.
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Defendants’ subpoena to Ms. Parker, therefore, is not unduly
burdensome under Rule 45(d)(3)(A)(iv).
IV. CONCLUSION
Accordingly, it is ORDERED that the Government’s motion to quash,
MC ECF No. 1, is DENIED. Defendants must serve a copy of this order by
email on Jacqui Snead at the Department of Justice, Shaquana L. Cooper
at the VA Office of the General Counsel, and Plaintiffs’ Lead Counsel Bryan
F. Aylstock.
DONE AND ORDERED this 14th day of October 2020.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

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