Holley v. Gilead Sciences Inc

Filing 10

ORDER: Considering the foregoing, it is hereby ORDERED that the subpoena issued to Dr. Angela Mayeux-Hebert on behalf of defendant Gilead is QUASHED. Dr. Mayeux-Hebert's 3 Motion to Quash is, accordingly, GRANTED. Signed by Magistrate Judge Patrick J Hanna on 1/19/2022. (crt,Chicola, C)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
ADRIAN E HOLLEY

CASE NO. 6:21-MC-00064

VERSUS

MAGISTRATE JUDGE PATRICK J.
HANNA

GILEAD SCIENCES INC

ORDER
Before the Court is a motion to quash filed on behalf of a non-party, Dr.
Angela Mayeux-Hebert (“Dr. Mayeux-Hebert”), to whom a subpoena was issued for
deposition testimony by defendant Gilead Sciences, Inc. (“Gilead”). (Rec. Doc. 3).
A status conference was held before the undersigned on January 5, 2022, during
which the Court heard discussion and argument from the parties regarding the
pending motion. (Rec. Doc. 6). This is the second such motion brought by Dr.
Mayeux-Hebert, as the Court previously granted a motion to quash a nearly identical
subpoena issued to the doctor. (Rec. Doc 1, 2). In light of the puzzling, if not
disturbing, repeat of the same problem within less than a month, this Court ordered
the status conference to let counsel explain why in the world he would do such a
thing in light of the previous order.
Based on the discussion during the teleconference, it was clear that counsel
had not provided any records to Dr Mayeux-Hebert or her attorney despite counsel’s
representations and Dr. Mayeux-Hebert’s declaration, that Dr. Mayeux-Hebert did
not have any records as she had closed her practice years ago, nor did she have any

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recollection of the patient. In short, after having the previous subpoena quashed,
counsel for the defendant simply re-issued it because he wanted to “get this
deposition done” by showing up, whether live or by Zoom, to present Dr. MayeuxHebert with records she may not have seen in years simply to see what he could find
out from her once she read them, presumably for the first time, on the record.
Counsel did this despite Dr. Mayeux-Hebert’s declaration of the hardship and burden
the deposition may impose on her and her husband who suffers from a serious
medical problem for which Dr. Mayeux-Hebert is the primary caregiver.
Resisting the urge to impose sanctions under Rule 45 at the conference for
issuing the second subpoena, the Court ordered counsel for Gilead to provide Dr.
Mayeux-Hebert a copy of the patient medical records about which Gilead sought to
depose Dr. Mayeux-Hebert on or before January 13, 2022. Thereafter, the doctor’s
counsel was instructed to file a response, indicating whether Dr. Mayeux-Hebert
could offer testimony based on an independent recollection of her treatment of the
patient. (Rec. Doc. 7). Counsel for Dr. Mayeux-Hebert filed the requested response
on January 18, 2022 with a declaration from Dr. Mayeux-Hebert indicating that,
after having reviewed the records, she had no recollection of this patient. (Rec. Doc.
9).
After review of the motion, argument of the parties, and Dr. Mayeux-Hebert’s
recent filing, it is the finding of this Court that the subpoena issued in this matter is

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unlikely to produce relevant testimony from Dr. Mayeux-Hebert. Discovery under
Fed. R. Civ. P. 26(b), including deposition testimony as sought here, must observe
relevancy parameters. Rule 26(b) requires consideration of “the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.”
Dr. Mayeux-Hebert attests that she has no additional, relevant information
regarding the patient at issue in this matter beyond the records already in the
possession of the defendant as she has no independent recollection of this patient.
Accordingly, the proposed deposition is not likely to lead to the discovery of relevant
information. Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163
(10th Cir. 2010) (“Rule 26(b), although broad, has never been a license to engage in
an unwieldy, burdensome, and speculative fishing expedition.”).
Additionally, Dr. Mayeux-Hebert attests that taking part in the proposed
deposition would present an undue burden to her because she is retired since 2014
and caring for her husband, who has serious health concerns. (Rec. Doc. 3-1). Under
Rule 45,

“the court for the district where compliance is required must enforce

[counsel’s duty to take reasonable steps to avoid undue burden or expense on a
person subject to the subpoena] and impose an appropriate sanction - which may
include . . . reasonable attorney’s fees – on a party or attorney who fails to comply”.

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This is the second time Dr. Mayeux-Hebert has had to retain counsel to
respond to a subpoena that was procedurally deficient in multiple respects, which
likely could have been avoided had the records been produced to Dr. Mayeux-Hebert
after the first procedurally deficient subpoena was quashed. This Court admonishes
counsel for the defendant that it will not condone such unprofessional behavior in
the future particularly from counsel admitted pro hac vice. The Court will further
entertain, but does not require, a motion from counsel for Dr. Mayeux-Hebert, for
attorney’s fees with supporting documentation incurred in opposing the second
subpoena.
Considering the foregoing, it is hereby ORDERED that the subpoena issued
to Dr. Angela Mayeux-Hebert on behalf of defendant Gilead is QUASHED. Dr.
Mayeux-Hebert’s pending motion is, accordingly, GRANTED.
SIGNED at Lafayette, Louisiana this 19th day of January, 2022.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE