DeJean et al v. Nabors Drilling USA, LP et al

Filing 58

RULING: IT IS ORDERED that Chevron and Nabors's 41 Motion to Quash Subpoena Duces Tecum directed to Dr. Bianchini, Motion for Protective Order, Motion for Sanctions is DENIED. IT IS FURTHER ORDERED that Dr. Bianchinis 53 Motion to Quash plai ntiffs' subpoena, 53 Motion for Protective Order, 53 Motion for Sanctions is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that Chevron's 50 Motion to Compel Compliance With Subpoena Duces Tecum to Third Party, 50 Motion for Sanctions, 50 Motion for Attorney Fees is GRANTED IN PART, DENIED IN PART AS MOOT, DEFERRED IN PART, and DENIED IN PART. IT IS FURTHER ORDERED that the plaintiff's 56 Motion for Leave Substitute Unsworn Declaration is GRANTED. Signed by Magistrate Judge Patrick J Hanna on 6/8/2011. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
NEIL JOSEPH DEJEAN ET AL.

CIVIL ACTION NO. 6:10-cv-0597

VERSUS

JUDGE HAIK

NABORS DRILLING USA, LP ET AL.

MAGISTRATE JUDGE HANNA

RULING

Currently pending before this Court are several related motions. First is the
motion to quash and/or for protective order and for sanctions (Rec. Doc. 41), which
was filed by defendants Chevron U.S.A. Inc. and Nabors Offshore Corporation, and
pertains to the plaintiffs’ subpoena duces tecum that was directed to Dr. Kevin J.
Bianchini. That motion is opposed. (Rec. Doc. 43). Second is Dr. Bianchini’s
motion to quash and/or for protective order regarding the subpoena that was directed
to him by the plaintiffs. (Rec. Doc. 53). That motion is opposed. (Rec. Doc. 55).
Third is Chevron’s motion to compel Dr. F.T. Friedberg to respond to a subpoena
duces tecum directed to him or, alternatively, to hold him in contempt and/or impose
sanctions against him. (Rec. Doc. 50). No objection or opposition has been filed in
response to that motion. A motion for expedited hearing of Chevron’s motion
regarding Dr. Friedberg (Rec. Doc. 51) was previously granted (Rec. Doc. 54).
Finally, the plaintiff filed a motion for leave (Rec. Doc. 56) to substitute the signed

declaration of Dr. John C. Courtney for the unsigned declaration submitted in support
of the plaintiff’s memorandum opposing Dr. Bianchini’s motion to quash.
Oral argument was held on June 8, 2011. Present in court were: David W.
Leefe, representing defendants Chevron and Nabors; Lawrence N. Curtis,
representing the plaintiffs; and Jed M. Mestayer, representing Dr. Bianchini. Dr.
Friedberg was also present.

ANALYSIS
1.

CHEVRON AND NABORS’S MOTION TO QUASH THE SUBPOENA DIRECTED TO
DR. BIANCHINI
Dr. Bianchini performed a psychological examination of plaintiff Neil Dejean

on March 23, 2011. This examination was requested by the defendants. In
connection with the DME, the plaintiffs served a subpoena duces tecum on Dr.
Bianchini. On April 15, 2011, defendants Chevron and Nabors filed a motion to
quash or limit the scope of the subpoena with regard to four types of documents
sought in the subpoena: professional literature authored by Dr. Bianchini, reports
authored by Dr. Bianchini in other cases, Dr. Bianchini’s income tax returns, and the
testing materials used by Dr. Bianchini in evaluating Mr. Dejean. Alternatively,
Chevron and Nabors seek a protective order. They also seek sanctions in the form of

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fees and costs incurred by Dr. Bianchini in objecting to and responding to the
subpoena. The plaintiff opposed the motion and raised the issue of whether Chevron
and Nabors have standing to object to the subpoena.
A party generally lacks standing to challenge a subpoena issued to a third party
absent a claim of privilege, proprietary interest, or personal interest in the subpoenaed
matter.1 Therefore, a motion to quash or a motion for protective order should
generally be filed by the person from whom the documents or things are requested.2
If, however, the discovery requests to the third party concern a party’s personal
interest, it is proper for the party to file such a motion. Thus, if the discovery requests
seek information that may have been sent by or for the party, the party has a right to
challenge the discovery.3 A party may not, however, challenge a subpoena directed

1

Keybank Nat’l Assoc. v. Perkins Rowe Associates, L.L.C., 2011 WL 338470, *2
(M.D. La. 2011); Hoover v. Florida Hydro, Inc., 2008 WL 4467661, *3 (E.D. La. 2008). See Brown
v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (finding that a party did not have standing to challenge
a subpoena without asserting some personal right or privilege); Old Towne Dev. Grp., L.L.C. v.
Matthews, 2009 WL 2021723, *1 (M.D. La. 2009) (finding that plaintiff’s personal interest in the
confidentiality of bank records was sufficient to confer standing); Terwillegar v. Offshore Energy
Servs., Inc., 2008 WL 2277879, *1 (E.D. La. 2008) (same).
2

Hoover v. Florida Hydro, Inc., 2008 WL 4467661 at *3, citing 9A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (2d ed. 1995).
3

Hoover v. Florida Hydro, Inc., 2008 WL 4467661, at *3.

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to a third party on the grounds that the information sought is irrelevant or imposes an
undue burden.4
Chevron and Nabors have not identified any interest that they might have in Dr.
Bianchini’s professional literature, in the reports he rendered in other cases, in his
income tax returns, or in his testing materials. Therefore, the undersigned finds that
Chevron and Nabors have no standing to object to the subpoena directed to Dr.
Bianchini. Chevron and Nabors’s motion (Rec. Doc. 41) will be denied.

2.

DR. BIANCHINI’S MOTION TO QUASH
Dr. Bianchini filed his own motion to quash the plaintiffs’ subpoena (Rec. Doc.

53), reiterating the arguments set forth by Chevron and Nabors in support of their
motion to quash and expounding upon his objection to the production of the
requested psychological testing materials.

a.

PROFESSIONAL LITERATURE AUTHORED BY DR. BIANCHINI

The plaintiff’s subpoena requests the production of “[a] copy of each and every
book, book chapter, journal article, etc. which you have authored, either alone, or in
combination with others.” Dr. Bianchini objects to this request on the basis that it
4

Keybank v. Perkins Rowe, 2011 WL 338470 at *2.

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unduly burdensome and expensive. Dr. Bianchini will not be ordered to produce
copies of professional literature or articles authored by him if those documents are
generally available; he shall, however, within thirty days of the date of this order,
produce a listing of those documents by title, providing the location (e.g., journal,
newsletter) of where those documents may be found, if not already identified. If
copies of the publications are available to Dr. Bianchini in an electronic format, he
shall produce copies to the plaintiffs. If the professional literature that was authored
by Dr. Bianchini was published in a journal or otherwise and the plaintiffs would be
required to pay to obtain a copy, Dr. Bianchini shall bear that cost.

b.

DR. BIANCHINI’S REPORTS IN OTHER CASES

Three of the requests set forth in the subpoena seek medical records of persons
who are not parties to this lawsuit. These requests seek the production of:
Any and all, and each and every, written report authored by
you, or authored by another under your direction, during
the past five (5) years; namely in the years of 2006, 2007,
2008, 2009, and 2010 “as part of” a “legal/workers’
compensation case.”
Any and all, and each and every, written report authored by
you, or authored by another under your direction, during
the past five (5) years; namely in the years of 2006, 2007,
2008, 2009, and 2010 “as part of” a “legal/workers’
compensation case” which included a discussion of the
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results of test instruments such as, but not limited to, the
California Verbal Learning Test – #2, Cognistat Auditory
Comprehension, Finger Tapping, Million Multi Axil
Clinical Inventory – #3, Minnesota Multiphasic Personality
Inventory – #2, Modified Somatic Perception
Questionnaire, NAB Orientation, Pain Disability Index,
Sullivan Pain Questionnaire, Test of Memory Malingering,
Wechler Adult Intelligence Scale – #3, Wechler Test of
Adult Reading, Wide Range Achievement Test – III
(reading), and Word Memory Test.
Any and all, and each and every, written report authored by
you, or authored by another under your direction, during
the past five (5) years; namely in the years of 2006, 2007,
2008, 2009, and 2010 “as part of” a “legal/workers’
compensation case” in which you concluded that
malingering or symptom magnification, to any extent, had
been detected or established.
Dr. Bianchini objects to these requests on the basis that they seek the
production of information protected by HIPAA and also because complying with the
request would be unduly burdensome and expensive. The plaintiffs argue that the
requested reports do not fall within HIPAA protections because there was no
therapeutic relationship between Dr. Bianchini and the persons he examined in order
to prepare the subpoenaed reports. The undersigned finds that the objections lack
merit. Therefore, within thirty days of the date of this order, Dr. Bianchini shall
produce non-party medical reports authored by him in litigation cases in the last five
years, redacting the names of the persons examined, their social security numbers,

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personal addresses, names of relatives and any other identifying information other
than the year of birth.

c.

DR. BIANCHINI’S INCOME TAX RETURNS

The plaintiffs seek the production of Dr. Bianchini’s state and federal income
tax returns for years 2006, 2007, 2008, 2009, and 2010. Dr. Bianchini objected to the
production of these documents on two bases: that they are personal in nature and that
they contain information irrelevant to this lawsuit. The undersigned finds that the
plaintiffs are entitled to production of documents reflecting income earned by Dr.
Bianchini through litigation-related referrals.

This could take various forms.

Therefore, Dr. Bianchini will be ordered to produce 1099 forms, or other
documentation from his accountant reflecting this information for each of the past
five years.

d.

THE TESTING MATERIALS

Finally, the plaintiffs requested the production of psychological testing
materials, specifically including:
Any and all and each and every written test (standardized
or not – self-administered or not) which you or any of your
office staff asked Neil Joseph DeJean to complete at any
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time during your evaluation on Wednesday, March 23,
2011;
The instruction booklet, or test booklet, for each and every
written test which you or any of your office staff asked
Neil Joseph DeJean to complete at any time during your
evaluation on Wednesday, March 23, 2011;
The scoring key, for each and every written test which you
or any of your office staff administered to Neil Joseph
DeJean at any time during your evaluation on Wednesday,
March 23, 2011.
Dr. Bianchini has no objection to producing the test data or results, but he
objects to the production of the test materials, that is, the documents responsive to
this request for production, on the basis that confidentiality is necessary to preserve
the integrity of the testing and avoid violation of ethical guidelines applicable to
psychologists. Dr. Bianchini would be amenable to producing the responsive
documents to Mr. Dejean’s treating psychologist, Dr. Friedberg, but not to the
plaintiffs’ counsel.
The undersigned finds that the plaintiffs are entitled to these materials, subject
to the entry of an appropriate protective order. Therefore, within thirty days of the
date of this order, Dr. Bianchini shall produce copies of all test data as defined in
Ethical Standard 9.04 of the APA Ethical Principles of Psychologists and Code of
Conduct to counsel for the plaintiff. Test materials as defined in Ethical Standard

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9.11used by him in connection with his neuropsychological testing of the plaintiff
shall be produced to plaintiff’s expert, Dr. Freidberg, which he is free to share with
plaintiff’s counsel as he deems appropriate, but subject to a protective order which
shall be submitted by the parties to the undersigned for approval not later than fifteen
days after the date of this order. Such protective order must provide at a minimum
that the test materials will not be disclosed to third parties other than plaintiffs’
experts without court authorization and that at the close of the litigation all copies
will be returned to Dr. Bianchini or his attorney.

3.

CHEVRON’S MOTION TO COMPEL DR. FRIEDBERG

On April 29, 2011, Chevron served a subpoena duces tecum (Rec. Doc. 50-2)
on Dr. Ted Friedberg, Mr. Dejean’s treating psychologist. When Dr. Friedberg failed
to respond fully and completely to the subpoena, Chevron filed a motion to compel
complete responses or, alternatively, for contempt and/or sanctions. (Rec. Doc. 50).
Dr. Friedberg did not object to the subpoena, nor did counsel appear for him in this
lawsuit. But Dr. Friedberg did personally appear at the hearing on June 8, 2011.
Chevron argues that Dr. Friedberg failed to respond to the following document
requests set forth in the subpoena:
1.

Handwritten notes by Dr. Friedberg or his staff;
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2.

All written tests completed by Neil Dejean, including the
instruction booklet for the test, and the scoring key....

3.

A copy of the jacket in which the file is maintained, front
cover – inside and out – and back – inside and out;

4.

For the years 2006, 2007, 2008, 2009 and 2010, documents
reflecting Dr. Friedberg’s total billings from personal
injury-related matters, or, alternatively, a listing of the total
sum of billings on personal injury-related matters for each
of the requested years;

5.

For the years 2006, 2007, 2008, 2009 and 2010, all
invoices generated by Dr. Friedberg’s office for each
patient/client examined or treated by Dr. Friedberg who
was represented by Larry Curtis, or alternatively, a listing
with the name and total billing for each such patient/client;

6.

A copy of every book, book chapter, journal article, etc.
authored by Dr. Friedberg, either alone, or in combination
with others;

7.

All written reports authored by Dr. Friedberg, or authored
by another under Dr. Friedberg’s direction, during the
years 2006, 2007, 2008, 2009 and 2010, related to a
personal-injury legal matter or workers’s compensation
claim.5

Dr. Friedberg has already produced a copy of Mr. Dejean’s file. Dr. Friedberg
explained that he has not authored any professional books or articles and,
consequently, has nothing to produce with regard to the request concerning
professional literature. The motion is moot with regard to those requests.
5

Rec. Doc. 50-1 at 2.

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Dr. Friedberg has agreed to produce copies of all written tests administered to
Mr. Dejean. The test materials shall be produced subject to a protective order
identical to that discussed above in Section 2 with regard to Dr. Bianchini’s test
materials.
Dr. Friedberg objected to the requests related to his personal financial
information on the basis that it would be unduly burdensome to collect the data. Dr.
Friedberg similarly objected to the requests concerning his reports on patients
involved in tort or workers’ compensation litigation on the basis that it would be
unduly burdensome to review his files in an effort to gather that information. Dr.
Friedberg agreed to make an effort to comply with the subpoena to the extent that it
requests this information, and he also agreed to report to the undersigned if the task
actually does turn out to be unduly burdensome. The motion will be deferred with
regard to these requests pending future communication from Dr. Friedberg or counsel
for the plaintiffs or defendants.

4.

PLAINTIFFS’ MOTION TO SUBSTITUTE SIGNED DECLARATION

The plaintiffs originally submitted the unsigned declaration of Dr. John C.
Courtney (Rec. Doc. 55-1) in support of their memorandum opposing Dr. Bianchini’s
motion to quash (Rec. Doc. 53). They then submitted Dr. Courtney’s signed
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declaration (Rec. Doc. 56-2) and requested leave of court to substitute the signed
declaration for the unsigned one (Rec. Doc. 56). Finding this request wholly
appropriate, the motion for leave to substitute will be granted.
Accordingly,
IT IS ORDERED that Chevron and Nabors’s motion to quash the subpoena
directed to Dr. Bianchini, for protective order, and for sanctions (Rec. Doc. 41) is
DENIED.
IT IS FURTHER ORDERED that Dr. Bianchini’s motion to quash the
plaintiffs’ subpoena and/or for protective order is GRANTED IN PART and DENIED
IN PART. With regard to the request for production of professional literature or
articles authored by him that is not generally available, the motion is GRANTED, and
Dr. Bianchini is ordered to produce, not later than thirty days after the date of this
order, a list of all such publications and their locations, as well as copies of all such
literature available to him electronically. With regard to the request for non-party
medical reports, the motion is GRANTED, and Dr. Bianchini shall, not later than
thirty days after the date of this order, produce non-party medical reports authored by
him in litigation cases in the last five years, with the redactions as set forth herein.
With regard to Dr. Bianchini’s financial information, the motion is GRANTED, and
Dr. Bianchini shall, not later than thirty days after the date of this order, produce 1099
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forms, or other documentation from his accountant reflecting this information for
each of the past five years. With regard to the request for production of the test data,
Dr. Bianchini shall produce, not later than thirty days after the date of this order,
copies of all test data to counsel for the plaintiff involved in any way with the
examination and testing of the plaintiff. Test materials used by him in connection
with his neuropsychological testing of the plaintiff shall be produced to plainitff’s
expert, Dr. Freidberg, subject to a protective order in the form described above, which
protective order shall be submitted to the undersigned not later than fifteen days after
the date of this order. To the extent that the motion seeks sanctions and attorney’s
fees, it is DENIED.
IT IS FURTHER ORDERED that Chevron’s motion to compel Dr. Friedberg
to respond to the subpoena, or alternatively hold him in contempt, and/or for
sanctions (Rec. Doc. 50) is GRANTED IN PART, DENIED IN PART AS MOOT,
DEFERRED IN PART, and DENIED IN PART. To the extent that the motion seeks
to have Dr. Friedberg held in contempt or sanctioned, the motion is DENIED. To the
extent that the motion seeks to compel Dr. Friedberg to respond to the subpoena by
producing testing materials, the motion is GRANTED, and Dr. Friedberg shall
produce, not later than thirty days after the date of this order, copies of the plaintiff’s
test data to the defendants. Copies of test materials used by him in connection with
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his psychological testing of the plaintiff shall be produced to Dr. Bianchini, subject
to a protective order in the form described above, which shall be submitted to the
undersigned for approval not later than fifteen days after the date of this order. With
regard to the requests for production of Dr. Friedberg’s records concerning patients
other than Mr. Dejean and concerning his financial information, the motion is
DEFERRED pending Dr. Friedberg’s report to the undersigned regarding the
difficulty of complying with those parts of the subpoena. With regard to the request
for production of professional literature authored by Dr. Friedberg, the motion is
DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiff’s motion to substitute
declarations (Rec. Doc. 56) is GRANTED.
Signed at Lafayette, Louisiana on June 8th , 2011.

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