Sawyer v. Purdue Pharmaceutical Corporation
Filing
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ORDER denying 1 MOTION to Quash filed by Gary B. Richardson. So Ordered by Magistrate Judge Landya B. McCafferty.(lml)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony S. Sawyer
v.
Case No. 12-mc-019-LM
Purdue Pharmaceutical Corp.
v.
Gary B. Richardson
O R D E R
Anthony Sawyer has sued Purdue Pharmaceutical Corporation
(“Purdue”) for products liability, in the Middle District of
Pennsylvania.
Before this court is Attorney Gary Richardson’s
motion to quash a subpoena served on him by Purdue.
not responded.
Purdue has
For the reasons that follow, Atty. Richardson’s
motion to quash is denied.
Background
Atty. Richardson once represented Sawyer in a civil matter.
Purdue’s subpoena directed him to produce “[a]ll unprivileged
records pertaining to [his] representation of Anthony S. Sawyer
. . . including but not limited to medical records.”
Quash, Ex. 1 (doc. no. 1-1).
Mot. to
Purdue also provided Atty.
Richardson with a document titled “Authorization for Release of
Medical Records In Compliance With the Health Insurance
Portability and Accountability Act of 1996 (HIPAA)” that appears
to have been executed by Sawyer.
Id., Ex. 2.
Purdue did not,
however, provide Atty. Richardson with a waiver of the
attorney/client privilege executed by Sawyer.
Discussion
According to Atty. Richardson’s unsworn motion, his firm
has six cartons of material related to his representation of
Sawyer, located in an off-site storage facility.
In those
cartons, material subject to the attorney/client privilege is
comingled with unprivileged material.
Purdue’s counsel has
agreed to pay any out-of-pocket expenses Atty. Richardson may
incur in responding to the subpoena, but has failed to provide a
waiver of the attorney/client privilege and refuses to
compensate Atty. Richardson for the time it would take him to
review the documents and determine which ones are subject to the
attorney/client privilege.
Atty. Richardson frames his legal argument in the following
way:
Federal Rule 45(c)(1) protects a person subject
to a subpoena by requiring the attorney responsible
for issuing the subpoena to take reasonable steps to
avoid imposing undue burden or expense on the person
subject to the subpoena. The refusal to provide an
appropriate waiver of the attorney-client privilege
and reasonable compensation for the time required in
complying with the Subpoena, justifies an award of
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attorneys’ fees and costs related to the necessity of
filing this Motion with the Court.
Federal Rule 45(c)(3)(A)(iii) requires that a
subpoena be quashed that requires disclosure of
privileged or protected matter or subjects a person to
undue burden.
Mot. to Quash (doc. no. 1) ¶¶ 7-8.
Beyond citing the Federal
Rules of Civil Procedure (“Federal Rules”), Atty. Richardson’s
motion to quash identifies no other authority for his legal
argument.
While Atty. Richardson appears to invoke Rule
45(c)(3)(A)(iii), which requires a court to quash a subpoena
that requires the disclosure of privileged material, the
subpoena at issue here expressly requested “[a]ll unprivileged
records” (emphasis added) in Atty. Richardson’s possession,
which would appear to resolve any conflict between the subpoena
and Rule 45(c)(3)(A)(iii).
Thus, the dispositive issue is who
should bear the expense of making sure that Atty. Richardson
does not disclose any privileged materials.
In Atty.
Richardson’s view, requiring him to absorb the costs of
examining his files to excise any documents subject to the
attorney/client privilege is an undue burden that entitles him
to: (1) have the subpoena quashed; and (2) be reimbursed for the
time and expense associated with filing his motion to quash.
The court does not agree.
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The Federal Rules provide that “[o]n timely motion, the
issuing court must quash or modify a subpoena that: . . .
subjects a person to undue burden.”
45(c)(3)(A)(iv).
Fed. R. Civ. P.
Indeed, “concern for the unwanted burden
thrust upon non-parties is a factor entitled to special weight
in evaluating the balance of competing needs.”
Behrend v.
Comcast Corp., 248 F.R.D. 85, 85 (D. Mass. 2008) (quoting
Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)).
Moreover, “Rule 45(c)(1) of the Federal Rules of Civil Procedure
provides that ‘[a] party or an attorney responsible for the
issuance and service of a subpoena shall take reasonable steps
to avoid imposing undue burden or expense on a person subject to
that subpoena.’”
Behrend, 248 F.R.D. at 86.
As Magistrate
Judge Alexander further explained:
When determining whether a subpoena duces tecum
results in an undue burden on a party such factors as
“the relevance of the documents sought, the necessity
of the documents sought, the breadth of the request
. . . expense and inconvenience” can be considered.
Demers v. LaMontagne, No. Civ.A. 98-10762-REK, 1999 WL
1627978, at *2 (D. Mass. May 5, 1999). The main issue
for this Court is whether Greater Media is required to
pay for its own costs incurred responding to the
subpoena duces tecum. Usually, absent an order
compelling document production, a non-party bears its
own production cost. See Boston Children’s Heart
Found., Inc. v. Nadal-Ginard, No. Civ.A. 93-12539-REK,
1995 WL 17015062, at *2 (D. Mass. Aug. 23, 1995). “A
non-party can be required to bear some or all of its
expenses where the equities of a particular case
demand it.” In re Honeywell Intern., Inc. Sec.
Litig., 230 F.R.D. 293, 302-03 (S.D.N.Y. 2003).
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Furthermore, in determining the cost allocation,
courts consider three factors: (1) whether the nonparty actually has an interest in the outcome of the
case, (2) whether the non-party can more readily bear
the costs than the requesting party, and (3) whether
the litigation is of public importance. In re Exxon
Valdez, 142 F.R.D. 380, 383 (D.D.C. 1992).
Behrend, 248 F.R.D. at 86 (footnote omitted).
After carefully
examining the three factors she drew from In re Exxon Valdez,
Judge Alexander granted the plaintiff’s motion to compel the
defendant to produce between four and five hundred cartons of
subpoenaed documents, at its own expense.
Behrend, 248 F.R.D.
at 87.
Based upon the ruling in Behrend, this court has little
difficulty concluding that Atty. Richardson is not entitled to
relief from Purdue’s subpoena on grounds of undue burden.
By
all accounts, Atty. Richardson was Sawyer’s counsel, so he will
not be required to learn the details of a case with which he is
completely unfamiliar before he can respond to the subpoena.
Moreover, in comparison with the number of cartons at issue in
Behrend, the number here is very small, and the court does not
have before it any evidence concerning how long it might
reasonably take Atty. Richardson to remove the privileged
material from his Sawyer file.
All the court has to go on is
its own speculation, uninformed by any information about the
files themselves.
For that reason, and because Atty.
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Richardson’s motion does not address the factors Judge Alexander
identified in Behrend, the court cannot conclude that this case
provides any reason to deviate from the general rule that
“absent an order compelling document production, a non-party
bears its own production costs,” Behrend, 248 F.R.D. at 86.
Conclusion
For the reasons explained above, Atty. Richardson’s motion
to quash, document no. 1, is denied.
Moreover, as Atty.
Richardson has not prevailed, he is necessarily not entitled to
attorney’s fees or any other sanctions against Purdue.
That
said, it would certainly be better for all concerned for Purdue
to resolve the privilege issue by obtaining a waiver of the
attorney/client privilege from Sawyer, but that is a matter for
the parties to resolve, not the court.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
May 29, 2012
cc:
Gary B. Richardson, Esq.
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