Begay v. United Stated of America
Filing
167
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying Motion to Quash Plaintiffs' Subpoena 110 . (mnb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LYDELL
MARVIN
BEGAY,
MARTIN (“MARTY”) BEGAY, and
LORENE BEGAY,
Plaintiffs,
vs.
No. CIV 15-0358 JB/SCY
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Motion to Quash Plaintiffs’ Subpoena,
filed March 30, 2017 (Doc. 110)(“Motion”). The Court held a hearing on May 8, 2017. The
primary issue is whether the Plaintiffs’ subpoena of Lance Leider, an attorney who represented
Doctor Annicol Marrocco during a Drug Enforcement Agency (“DEA”) investigation, seeks
records that Marrocco’s attorney-client privilege protects from disclosure.
The Court concludes
that the Plaintiffs’ subpoena seeks “nonprivileged matter that is relevant to [the Plaintiffs’
claims] and proportional to the needs of the case,” so it denies the Motion. Fed. R. Civ. P.
26(b)(1).
FACTUAL BACKGROUND
On March 2014, Plaintiff Lydell Marvin Begay visited the emergency room at the
Northern Navajo Medical Center in Shiprock, New Mexico. See Complaint for Damages ¶ 2, at
1-2, filed April 28, 2015 (Doc. 1)(“Complaint”). According to the Plaintiffs, “[a]s a result of
Defendant’s negligent medical care, misdiagnosis and failure to adequately credential, staff, or
supervise the emergency room at NNMC, Lydell Begay suffered catastrophic and permanent
injuries, injuries that have all but taken this young man’s life away.” Complaint ¶ 4, at 2. Also
according to the Plaintiffs, “the physician who treated Lydell Begay, Annicol Marrocco, M.D.,
was acting under restricted medical licenses and required close supervision,” but “NNMC
provided no such supervision.” Complaint ¶ 3, at 2. The Plaintiffs assert that, when Marrocco
treated Begay, “she was not licensed to practice medicine in the State of New Mexico and
instead was acting under restricted licenses issued by the States of Florida, New York, and
Pennsylvania,” and has “been censured and fined by the New York and Pennsylvania Medical
Boards.” Complaint ¶¶ 18, 20, at 5-6.
PROCEDURAL BACKGROUND
On April 27, 2015, the Plaintiffs filed their Complaint. See Complaint at 13. The
Complaint does not name Marrocco as a Defendant. It instead -- pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 2672, (“FTCA”) -- names only Defendant United States of America.
See Complaint ¶ 6, at 3.
1.
The Motion.
Marrocco filed the Motion on March 30, 2017. See Motion at 3. According to Marrocco,
“Leiter, an attorney practicing in Orlando, Florida, was Dr. Marrocco’s personal attorney whom
she retained to represent her when the DEA initiated an investigation into her history of
prescription writing in May of 2013,” and, also according to Marrocco, “[f]ollowing a hearing,
the DEA concluded its investigation into Dr. Marrocco on May 4, 2015.” Motion ¶ 2, at 1-2.
Marrocco asserts, “[u]pon information and belief,” that the Plaintiffs’ subpoena to Leiter “seeks
all documents and correspondence relating to” those proceedings, and adds that “[a] copy of the
Subpoena is not attached because a copy of the subpoena was not forwarded to Dr. Marrocco’s
counsel.” Motion ¶ 2, at 1-2. Marrocco argues that her attorney-client privilege protects the
contents of Leiter’s file regarding her case and, to the extent that the file contains non-privileged
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material, “those records are a matter of public record equally available to plaintiffs.” Motion ¶ 4,
at 2-3. Marrocco also argues that the subpoena subjects Leiter to an undue burden. See Motion
¶¶ 5-7, at 3-4. Marrocco concludes that, because “a subpoena shall be quashed or modified if it
requires disclosure of privileged or other protected matter,” and because “a subpoena must be
quashed if it subjects a person, especially a non-party, to undue burden,” the Court should quash
the Plaintiffs’ subpoena. Motion ¶¶ 3, 5, at 2-3 (emphasis the original)(citing Fed. R. Civ. P.
45(d)(3)(A)).
2.
The Response.
The Plaintiffs argue, first, that Marrocco spells her own lawyer’s name incorrectly. See
Plaintiffs’ Response to Motion to Quash Plaintiffs’ Subpoena at 1 n.1, filed April 12, 2017
(Doc. 113)(“Response”)(“Mr. Leider’s name is correctly spelled in the subject subpoena. See
www.thehealthlawfirm.com.”). More importantly, the Plaintiffs argue that their subpoena does
not request Leider to produce privileged documents, because their subpoena requests only the
“non-privileged documents in Mr. Leider’s possession relating to proceedings before the [DEA]
concerning Dr. Marrocco.” Reponse at 1. The Plaintiffs contend that they “are entitled to fully
explore the extent, nature and type of evidence and testimony submitted on Dr. Marrocco’s
behalf to the DEA,” because “[s]uch information either was known or should have been known
to the Northern Navajo Medical Center . . . when they granted full, active medical privileges to
Dr. Marrocco before she treated Plaintiff Lydell Begay.” Response at 2. The Plaintiffs contend
that “this information is not publicly or otherwise available,” and that they “have attempted to
obtain the same information covered by the subpoena from Dr. Marrocco herself, but to no
avail.” Response at 2. The Plaintiffs further contend that, “the subpoena is limited as to time
(i.e., 2013-2015), thereby avoiding the imposition of any undue burden on Mr. Leider.” It
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follows, according to the Plaintiffs, that the Court should deny the Motion. Response at 5.
3.
The Reply.
Marrocco admits that the Plaintiffs’ subpoena asks for only documents that are not
privileged, and she explains that she did not possess a copy of the subpoena when she drafted the
Motion, which “object[s], upon information and belief, that the Subpoena likely sought
privileged communications.” Reply in Support of Motion to Quash Plaintiffs’ Subpoena at 1,
filed April 27, 2017 (Doc. 115)(“Reply”). Marrocco argues that complying with the subpoena
would require both Leider and Marrocco to “be involved in the potentially burdensome and time
consuming process of reviewing all communications in the file to determine those that are
privileged,” and notes that “there are likely to be references to the third-party patient whose care
was at issue [in the DEA proceeding,] and such references would have to be carefully redacted to
ensure that his privacy and confidential health information were protected.”
Reply at 2.
Marrocco also argues that the subpoena is overbroad insofar as “[t]he medical treatment at issue
[in this case] took place in March 2014,” while the subpoena “seeks records through May 2015.”
Reply at 2. Finally, Marrocco argues:
[A]ny information in Mr. Leider’s file that pre-dates March 2014 is only relevant
if NNMC should have, in the exercise of reasonable diligence, obtained that
information. Plaintiffs, however, provide no evidence or testimony that would
suggest NNMC could have accessed Mr. Leider’s file, at any time, to discover the
information that Plaintiffs now seek.
Reply at 3. Marrocco accordingly concludes that the Court should either quash the Plaintiffs’
subpoena to Leider or, alternatively, “conduct an in camera review of any documents.” Reply at
3.
4.
The Hearing.
The Court held a hearing on May 8, 2017, and lawyers appeared for “the Begays,” Tr. at
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2:7-8 (Zedalis), for the United States, see Tr. at 2:12-13 (Jeu), and for Marrocco, see Tr. at 2:1617 (Schofield). The Court began the hearing by articulating its initial impression:
Well, I’ll certainly hear what anybody wants to say on this, but I guess my
thoughts are, that unless I don’t understand the circumstances it looks like it’s a
valid subpoena to Lance Lieder. There are some documents that are in his file
that would be relevant to this case that would not be privileged. It seems to me
that it’s not his entire office’s file. It’s just this file involving Mr. Lieder doing
work for Dr. Marrocco, and it seems to me probably the material that’s going to
fall within the scope of the subpoena is rather than [segregated].
There still may be some materials that are privileged. But from it seems
like a privilege log would be appropriate. It seems to me it’s narrow so I guess
I’m inclined not to the grant the motion to quash, but require the plaintiff or
require the Mr. Lieder to prepare some privilege log. I’ll leave it to Dr. Marrocco
and Mr. Lieder to figure out who is going to pay for that. But it doesn’t seem to
me that it’s probably a big burden to produce what the plaintiffs are requesting.
So those are my thoughts.
Tr. at 2:20-3:15 (Court). Marrocco noted that, in addition to privileged material, “throughout the
file there is also reference to the patient who was at issue,” and asked for permission to redact the
patient’s name. Tr. at 3:25-4:3 (Schofield). The Plaintiffs indicated that they did not object to
such a redaction. See Tr. at 4:4-6 (Court, Zedalis). Marrocco then noted that, “after the briefing
was completed,” she spoke to Lieder regarding her file, and, “[a]lthough they’re stored
electronically, so it’s a little hard to gauge, he estimated it to be about two banker’s boxes full of
documents.” Tr. at 4:8-14 (Schofield).
Marrocco then raised two additional issues.
See Tr. at 4:14-5:10, 6:4-11 (Court,
Schofield). First, Marrocco asked the Court to order the Plaintiffs to pay for the costs associated
with reviewing Leider’s file, because “Dr. Marrocco is not a party to this, but simply a witness.”
Tr. at 4:14-20 (Schofield). Second, Marrocco argued that “anything that was after the treatment
of Mr. Begay, which is from March 2014 going forward,” is not relevant to the Plaintiffs’ case,
because it is “information Northern Navajo could not have obtained, because it happened after
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the treatment in question.” Tr. at 6:4-11 (Schofield). The United States agreed on the latter
point. See Tr. at 6:21-23 (Jeu)(“I agree that the time period after March 2014 is really irrelevant
to what’s going on here.”).
The Plaintiffs then indicated that “[w]e’re not going to agree to cut off the time to 2015,”
because “the DEA order that came down . . . in May of 2015 . . . reflects [Marrocco’s] testimony
and documents that predate her evaluation of Mr. Begay in March 2014,” so, according to the
Plaintiffs, “there may very well be documents relevant to the time period in question that are
reflected in post 2015 correspondence, affidavits, reports, whatever that is in the DEA file.” Tr.
at 7:10-8:6 (Zedalis). As to shifting the costs associated with producing Leider’s file, the
Plaintiffs argued that, absent Court intervention, “insurance is paying for all these” costs, and
that the Court should not shift those costs to the Plaintiffs, because
[t]he Begays are a family of limited means. They don’t have running water.
They live in Fruitland, New Mexico on a plot of land that Ms. Begay inherited
from her family. They don’t have a structure on their property. To ask them to
pay for the attorneys’ fees . . . is just, it’s I think it’s uncalled for, Your Honor . . .
.
Tr. at 8:20-9:4 (Zedalis).
The Court concluded:
Well, I do think that it’s hard to come up with any sort of deadlines. I mean, I
agree [with the Plaintiffs] that sometimes documents that may come in or exist
after March 2014 may show events before that, so I think it’s hard to come up
with a deadline that’s very useful that’s going to keep Dr. Marrocco and Mr.
Lieder from looking at every document. So they might as well be produced. So
I’m not going to set any deadline. I’m not going to shift costs here. This seems to
be just a manageable amount of discovery. Dr. Marrocco may end up having to
pay for it. But given her involvement in this case, it seems to me that the costs
shouldn’t be shifted.
Tr. at 9:13-25 (Court).
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LAW REGARDING DISCOVERY
Rule 34 governs discovery requests for tangible objects and states:
A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding
party’s possession, custody, or control:
(A) any designated documents or electronically stored
information -- including writings, drawings, graphs,
charts, photographs, sound recordings, images, and
other data or data compilations -- stored in any
medium from which information can be obtained
either directly or, if necessary, after translation by
the responding party into a reasonably usable form;
or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on it.
Fed. R. Civ. P. 34(a). Discovery’s proper scope is “any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case. . . .”
Fed. R. Civ. P.
26(b)(1). The factors that bear upon proportionality are: “the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(1).
Discovery’s scope under rule 26 is broad. See Gomez v. Martin Marietta Corp., 50 F.3d
1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004)(Browning,
J.)(“The federal courts have held that the scope of discovery should be broadly and liberally
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construed to achieve the full disclosure of all potentially relevant information.”). The federal
discovery rules reflect the courts’ and Congress’ recognition that “mutual knowledge of all the
relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329
U.S. 495, 507 (1947). A district court is not, however, “required to permit plaintiff to engage in
a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes, 43 F. App’x 214,
217 (10th Cir. 2002)(unpublished). “‘Discovery . . . is not intended to be a fishing expedition,
but rather is meant to allow the parties to flesh out allegations for which they initially have at
least a modicum of objective support.’” Rivera v. DJO, LLC, No. 11-1119, 2012 WL 3860744,
at *1 (D.N.M. August 27, 2012)(Browning, J.)(quoting Tottenham v. Trans World Gaming
Corp., No. 00-7697, 2002 WL 1967023, at *2 (S.D.N.Y. 2002)(Knapp, J.)). “[B]road discovery
is not without limits and the trial court is given wide discretion in balancing the needs and rights
of both plaintiff and defendant.” Gomez v. Martin Marietta Corp., 50 F.3d at 1520 (internal
quotation marks omitted).
The 2000 amendments to rule 26(b)(1) began narrowing the substantive scope of
discovery and injected courts deeper into the discovery process. See Simon v. Taylor, No. 120096, 2015 WL 2225653, at *23 (D.N.M. April 30, 2015)(Browning, J.). Before the 2000
amendments, rule 26(b)(1) defined the scope of discovery as follows:
Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending actions, whether it relates
to the claim or defense of the party seeking discovery or to the claim or defense of
any other party, including the existence, description, nature, custody, condition
and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of any discoverable matter. The
information sought need not be admissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1)(1996). The 2000 amendments made the following changes, shown here
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with the deleted language stricken and the added material underlined:
Parties may obtain discovery regarding any matter, not privileged, that
which is relevant to the subject matter involved in the pending actions, whether it
relates to the claim or defense of the party seeking discovery or to the claim or
defense of any other party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable matter.
For good cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant The information sought need not
be admissible at the trial if discovery the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1).
Putting aside the last sentence’s changes -- which the advisory
committee’s notes make clear was a housekeeping amendment to clarify that inadmissible
evidence must still be relevant to be discoverable -- the 2000 amendments have two effects:
(i) they narrow the substantive scope of discovery in the first sentence; and (ii) they inject courts
into the process in the entirely new second sentence.
In 1978, the Committee published for comment a proposed amendment,
suggested by the Section of Litigation of the American Bar Association, to refine
the scope of discovery by deleting the “subject matter” language. This proposal
was withdrawn, and the Committee has since then made other changes in the
discovery rules to address concerns about overbroad discovery. Concerns about
costs and delay of discovery have persisted nonetheless, and other bar groups
have repeatedly renewed similar proposals for amendment to this subdivision to
delete the “subject matter” language. Nearly one-third of the lawyers surveyed in
1997 by the Federal Judicial Center endorsed narrowing the scope of discovery as
a means of reducing litigation expense without interfering with fair case
resolutions. [Federal Judicial Center, T. Willging, J. Shapard, D. Stienstra, & D.
Miletich, Discovery and Disclosure Practice, Problems, and Proposals for
Change] 44–45 (1997). The Committee has heard that in some instances,
particularly cases involving large quantities of discovery, parties seek to justify
discovery requests that sweep far beyond the claims and defenses of the parties on
the ground that they nevertheless have a bearing on the “subject matter” involved
in the action.
The amendments proposed for subdivision (b)(1) include one element of
these earlier proposals but also differ from these proposals in significant ways.
The similarity is that the amendments describe the scope of party-controlled
discovery in terms of matter relevant to the claim or defense of any party. The
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court, however, retains authority to order discovery of any matter relevant to the
subject matter involved in the action for good cause. The amendment is designed
to involve the court more actively in regulating the breadth of sweeping or
contentious discovery. The Committee has been informed repeatedly by lawyers
that involvement of the court in managing discovery is an important method of
controlling problems of inappropriately broad discovery.
Increasing the
availability of judicial officers to resolve discovery disputes and increasing court
management of discovery were both strongly endorsed by the attorneys surveyed
by the Federal Judicial Center. See Discovery and Disclosure Practice, supra, at
44. Under the amended provisions, if there is an objection that discovery goes
beyond material relevant to the parties’ claims or defenses, the court would
become involved to determine whether the discovery is relevant to the claims or
defenses and, if not, whether good cause exists for authorizing it so long as it is
relevant to the subject matter of the action. The good-cause standard warranting
broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the
actual claims and defenses involved in the action. The dividing line between
information relevant to the claims and defenses and that relevant only to the
subject matter of the action cannot be defined with precision. A variety of
types of information not directly pertinent to the incident in suit could be
relevant to the claims or defenses raised in a given action. For example,
other incidents of the same type, or involving the same product, could be
properly discoverable under the revised standard. Information about
organizational arrangements or filing systems of a party could be
discoverable if likely to yield or lead to the discovery of admissible
information. Similarly, information that could be used to impeach a likely
witness, although not otherwise relevant to the claims or defenses, might be
properly discoverable. In each instance, the determination whether such
information is discoverable because it is relevant to the claims or defenses
depends on the circumstances of the pending action.
The rule change signals to the court that it has the authority to confine
discovery to the claims and defenses asserted in the pleadings, and signals to the
parties that they have no entitlement to discovery to develop new claims or
defenses that are not already identified in the pleadings. In general, it is hoped
that reasonable lawyers can cooperate to manage discovery without the need for
judicial intervention. When judicial intervention is invoked, the actual scope of
discovery should be determined according to the reasonable needs of the action.
The court may permit broader discovery in a particular case depending on the
circumstances of the case, the nature of the claims and defenses, and the scope of
the discovery requested.
The amendments also modify the provision regarding discovery of
information not admissible in evidence. As added in 1946, this sentence was
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designed to make clear that otherwise relevant material could not be withheld
because it was hearsay or otherwise inadmissible. The Committee was concerned
that the “reasonably calculated to lead to the discovery of admissible evidence”
standard set forth in this sentence might swallow any other limitation on the scope
of discovery. Accordingly, this sentence has been amended to clarify that
information must be relevant to be discoverable, even though inadmissible, and
that discovery of such material is permitted if reasonably calculated to lead to the
discovery of admissible evidence. As used here, “relevant” means within the
scope of discovery as defined in this subdivision, and it would include
information relevant to the subject matter involved in the action if the court has
ordered discovery to that limit based on a showing of good cause.
Finally, a sentence has been added calling attention to the limitations of
subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is
otherwise within the scope of subdivision (b)(1). The Committee has been told
repeatedly that courts have not implemented these limitations with the vigor that
was contemplated. See 8 Federal Practice & Procedure § 2008.1 at 121. This
otherwise redundant cross-reference has been added to emphasize the need for
active judicial use of subdivision (b)(2) to control excessive discovery. Cf.
Crawford-El v. Britton, [523 U.S. 574] (1998)(quoting Rule 26(b)(2)(iii) and
stating that “Rule 26 vests the trial judge with broad discretion to tailor discovery
narrowly”).
Fed. R. Civ. P. 26 advisory committee’s notes (emphasis added).
The Court gets the impression from reading the advisory committee’s notes that the
amendment was not intended to exclude a delineable swath of material so much as it is intended
to send a signal to district judges to become more hands-on in the process of regulating -- mostly
limiting -- discovery on relevance grounds alone. The “two effects” of the 2000 amendments
might, thus, be only one effect: directing district judges to roll up their sleeves and manage
discovery, and to do so on a relevance basis. The change in substantive scope from “subject
matter” to “claim or defense” would, therefore, seem to “add teeth” to the relevance standard
instead of narrowing that standard. Fed. R. Civ. P. 26 advisory committee’s notes. It is not
surprising that the Supreme Court of the United States of America and Congress would want to
increase judicial presence: “relevance” is a liberal concept in the context of trial. Fed. R. Evid.
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401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the action.”).
Of course, regardless of the Court’s musings, courts should also seek to give substantive
content to amendments. Read literally, the rule does not permit parties to discover information
relevant only to the claim or defense of another party; they must use discovery only to
investigate their own claims and defenses. More problematically, however, the rule may prevent
using the Federal Rules’ compulsory discovery process to obtain “background” information not
specifically relevant to any one claim or defense -- e.g., a plaintiff naming a pharmaceutical
company as a defendant and then using discovery to educate itself generally about medicine,
biochemistry, and the drug industry by using the defendant’s expertise.
In In re Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009), the United States
Court of Appeals for the Tenth Circuit clarified that the 2000 Amendments to rule 26
“implemented a two-tiered discovery process; the first tier being attorney-managed discovery of
information relevant to any claim or defense of a party, and the second being court-managed
discovery that can include information relevant to the subject matter of the action.” 568 F.3d at
1188. The Tenth Circuit further stated that,
when a party objects that discovery goes beyond that relevant to the claims or
defenses, “the court would become involved to determine whether the discovery
is relevant to the claims or defenses and, if not, whether good cause exists for
authorizing it so long as it is relevant to the subject matter of the action.” This
good-cause standard is intended to be flexible. When the district court does
intervene in discovery, it has discretion in determining what the scope of
discovery should be. “[T]he actual scope of discovery should be determined
according to the reasonable needs of the action. The court may permit broader
discovery in a particular case depending on the circumstances of the case, the
nature of the claims and defenses, and the scope of the discovery requested.”
568 F.3d at 1188-89 (quoting the advisory committee’s notes to the 2000 amendments to Fed. R.
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Civ. P. 26(b)(1))(citations and footnote omitted)(alteration in original).
The 2015 amendments to rule 26(b)(1) continued this process of narrowing discovery’s
substantive scope and injecting courts further into the discovery process. The 2015 amendment
made notable deletions and additions, both of which emphasize the need to make discovery
proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1), provides:
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense including the existence, description, nature,
custody, condition and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)
and proportional to the needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1)(alterations added).
The advisory committee notes state that the first deletion does not make a substantive
change. Rather, the deletion was made because “[d]iscovery of such matters is so deeply
entrenched” in standard discovery that including it would be “clutter.” Fed. R. Civ. P. 26(b)
advisory committee’s note to 2015 amendment.1
1
The Court regrets this deletion. Moving things out of the statute’s text often creates
mischief, especially for courts that rely heavily on the text’s plain language. The drafters might
be astonished how often the Court sees objections to interrogatories and requests that seek basic
information about documents. The rule is well-established because the deleted language was in
the rule; now that the language is not in the rule, the rule may be eroded or, more likely, ignored
or overlooked by those who do not spend time in the advisory notes’ thicket. What the advisory
comments describe as “clutter” is a simple instruction to practitioners who do not practice in
federal court every day for every case. This deletion might incrementally increase unnecessary
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On the second deletion, the Committee Notes explain that the former provision for
discovery of relevant but inadmissible information that appears “reasonably calculated to lead to
the discovery of admissible evidence” is also deleted.2
Fed. R. Civ. P. 26(b) advisory
committee’s note to 2015 amendment.
The phrase has been used by some, incorrectly, to define the scope of
discovery. As the Committee Note to the 2000 amendments observed, use of the
“reasonably calculated” phrase to define the scope of discovery “might swallow
any other limitation on the scope of discovery.” The 2000 amendments sought to
prevent such misuse by adding the word “Relevant” at the beginning of the
sentence, making clear that “‘relevant’ means within the scope of discovery as
defined in this subdivision. . . .” The “reasonably calculated” phrase has
continued to create problems, however, and is removed by these amendments. It
is replaced by the direct statement that “Information within this scope of
discovery need not be admissible in evidence to be discoverable.” Discovery of
nonprivileged information not admissible in evidence remains available so long as
it is otherwise within the scope of discovery.
Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment. The deletion, therefore, did
not necessarily change discovery’s scope, but clarified it. Accordingly, “[r]elevance is still to be
‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on’ any party’s claim or defense.” State Farm Mutual Auto. Ins. Co. v.
Fayda, No. 14-9792, 2015 WL 7871037, at *2 (S.D.N.Y. 2015)(Francis IV, M.J.)(quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
The most notable addition to rule 26(b) is the proportionality concept.
Rule
26(b)(2)(C)(iii) has always limited overly burdensome discovery and required proportionality.
litigation rather than shorten it. Some of the amendments seem more designed to help the
nation’s large corporations, represented by some of the nation’s most expensive law firms, cut
down expenses than they are to help courts and practitioners in more routine cases.
2
Arguably, older lawyers will have to learn a new vocabulary and ignore the one they
have used for decades. If the changes were not made to change the scope of discovery, it is
unclear what the benefit of all this change is.
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See Fed. R. Civ. P. 26(b)(2)(C)(iii)(pre-2015 version). The proportionality requirement was
relocated to 26(b)(1) to address the “explosion”3 of information that “has been exacerbated by
the advent of e-discovery.”4
Fed. R. Civ. P. 26(b) advisory committee’s note to 2015
amendment. Describing how e-discovery is the driving factor in the 2015 amendment, the
Committee Notes state:
The burden or expense of proposed discovery should be determined in a
realistic way. This includes the burden or expense of producing electronically
stored information. Computer-based methods of searching such information
continue to develop, particularly for cases involving large volumes of
electronically stored information. Courts and parties should be willing to consider
the opportunities for reducing the burden or expense of discovery as reliable
means of searching electronically stored information become available.
Fed. R. Civ. P. 26(b) advisory committee’s note to 2015 amendment.
3
It is unclear whether the “explosion” of e-discovery has made discovery harder or easier.
In many situations, algorithms and search engines have replaced associates and paralegals, and
brought greater accuracy and efficiency to discovery. The days of searching warehouses of
documents by looking at them one-by-one may have been a bigger burden than today’s ediscovery.
4
That this relocation effects no substantive change is one reason why the Court is
skeptical that the 2015 amendments will significantly limit discovery or cut its costs. Courts
brought common sense and proportionality to their discovery decisions long before the 2015
amendments. See Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225, 1275 (D.N.M.
2014)(Browning, J.)(“[T]he Court expects that discovery and motion practice bear some
proportionality to the case’s worth.”); Cabot v. Wal-Mart Stores, Inc., No. 11-0260, 2012 WL
592874, at *11-12 (D.N.M. 2012)(Browning, J.)(limiting the scope of discovery because it was
unduly burdensome in relation to the relevance and need). The import of the rule is that it will -apparently by design -- lead to more “proportionality” objections and more disputes that district
courts will have to resolve. It is unclear how federal court dockets that are already perilously
close to a breaking point can support increased judicial involvement in discovery, and it is also
unclear what was wrong with the old goal of largely self-executing discovery. The amendments
create another problem: attorneys need to learn the new vocabulary of “proportionality” and use
that vocabulary to rewrite stock legal sections in their briefs. Older lawyers in particular must be
alert, learn the new rules, read the comments, and understand the thrust of the drafting. Finally,
given that “proportionality” is a very subjective standard, it will be hard for any court to sanction
properly any attorney for raising this objection. In sum, the rules are just as likely to increase the
costs of discovery as to decrease it.
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Chief Justice Roberts’ 2015 Year-End Report on the Federal Judiciary indicates that the
addition of proportionality to rule 26(b) “crystalizes the concept of reasonable limits on
discovery through increased reliance on the common-sense concept of proportionality.”5 Chief
Justice John Roberts, 2015 Year-End Report on the Federal Judiciary at 6, Supreme Court of the
5
The Rules Enabling Act, 28 U.S.C. § 2072, empowers the federal courts to prescribe
rules for the conduct of their business. See 28 U.S.C. § 2072. The Judicial Conference -- the
policy making body of the federal judiciary -- has overall responsibility for formulating those
rules. See Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary at 6,
Supreme Court of the United States, available at http://www.supremecourt.gov/
publicinfo/yearend/year-endreports.aspx (“2015 Year-End Report”). The Chief Justice leads the
Judicial Conference. The Judicial Conference’s Committee on Rules of Practice and Procedure,
known as the Standing Committee, solicits guidance from advisory committees and conferences
to draft proposed rules and amendments for the Judicial Conference’s consideration. See 2015
Year-End Report, at 5-6. Chief Justice Roberts, a former clerk for Chief Justice William
Rehnquist, appointed the Honorable David Campbell, United States District Judge for the
District of Arizona, also a former Rehnquist clerk and President George W. Bush appointee, to
chair the Civil Rules Advisory Committee. Campbell and David Levi, Dean of the Duke
University School of Law, a former clerk to Justice Lewis Powell, and former chief judge of the
United States District Court for the Eastern District of California, appointed as United States
Attorney by President Ronald Reagan and appointed to the Eastern District of California by
President George W. Bush, led the effort to increase proportionality and hands-on judicial case
management in the 2015 amendments. See Report to the Standing Committee at 4, Advisory
Committee on Civil Rules (May 8, 2013), available at http://www.uscourts.gov/rulespolicies/archives/committeereports/advisory-committee-rules-civil-procedure-may-2013. After
the Judicial Conference concurred on the 2015 amendments, it sent the proposed rules and
amendments to the Supreme Court, which approved them. Chief Justice Roberts submitted the
proposed rules to Congress for its examination. See 2015 Year-End Report at 6. Because
Congress did not intervene by December 1, the new rules took effect. Some scholars have noted
that the rules reflect the conservative nature of those who have participated in drafting the
amendments. See Edward A. Purcell, Jr., From the Particular to the General: Three Federal
Rules and the Jurisprudence of the Rehnquist and Roberts Courts, 162 U. Pa. L. Rev. 1731
(2014); Corey Ciocchetti, The Constitution, The Roberts Court, and Business: The Significant
Business Impact of the 2011-2012 Supreme Court Term, 4 Wm. & Mary Bus. L. Rev. 385
(2013). In particular, the New Mexico Trial Lawyer published an article asserting that the
amendments favored corporate defendants, which was partially the result of Chief Justice
Roberts’ appointment of “corporate-minded judges to the Rules Advisory Committee that drafted
the amendments.” Ned Miltenberg & Stuart Ollanik, The Chief Umpire is Changing the Strike
Zone, at 1, The New Mexico Trial Lawyer (Jan. /Feb. 2016). The Court shares some of the
concerns with the new amendments being pro-business and giving corporations new tools to
limit plaintiffs’ discovery.
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United States, available at http://www.supremecourt.gov/publicinfo/year-end/year-endreports.
aspx (“2015 Year-End Report”). He states that the proportionality concept seeks to “eliminate
unnecessary or wasteful discovery,” and to impose “careful and realistic assessment of actual
need.” 2015 Year-End Report at 7. This assessment may, as a practical matter, require “judges
to be more aggressive in identifying and discouraging discovery overuse by emphasizing the
need to analyze proportionality before ordering production of relevant information.” State Farm
Mutual Auto. Ins. Co. v. Fayda, 2015 WL 7871037, at *2 (internal quotation marks omitted).
The burden of demonstrating relevance remains on the party seeking discovery, and the newly
revised rule “does not place on the party seeking discovery the burden of addressing all
proportionality considerations.” Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015
amendment. See Dao v. Liberty Life Assurance Co. of Boston, No. 14-4749, 2016 WL 796095,
at *3 (N.D. Cal. February 23, 2016)(LaPorte, M.J.)(observing that the 2015 amendment
“reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery
requests, responses or objections”); Williams v. U.S. Envt’l Servs., LLC, No. 15-0168, 2016 WL
617447, at *1 n.2 (M.D. La. February 16, 2016)(Bourgeois, M.J.). In general, “the parties’
responsibilities [] remain the same” as they were under the rule’s earlier iteration so that the
party resisting discovery has the burden of showing undue burden or expense. Fed. R. Civ. P.
26(b)(1) advisory committee’s notes to 2015 amendment. See Dao v. Liberty Life Assurance
Co. of Boston, 2016 WL 796095, at *3 (noting that, “while the language of the Rule has
changed, the amended rule does not actually place a greater burden on the parties with respect to
their discovery obligations”).
Like with the 2000 amendments, it is unsurprising that the drafters are unable to
articulate precise language narrowing the discovery’s substantive scope.
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Instead of being
Aristotelian and trying to draft rules, the drafters largely opt to make federal judges Plato’s
enlightened guardians. They have decided that no single general rule can adequately take into
account the infinite number of possible permutations of different claims, defenses, parties,
attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy,
availabilities of information by other means, and other factors. They have dropped all discovery
disputes into judges’ laps. The drafters have decided that this determination requires the
individualized judgment of someone on the scene, and that presence is what the rulemakers want
when they: (i) encourage district judges to take a firmer grasp on the discovery’s scope; and (ii)
put their thumbs on the scale in favor of narrower discovery in the rule’s definition of the scope
of discovery.
Rule 34 allows a party to serve requests to produce certain items “on any other party . . .
in the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). See
Hickman v. Taylor, 329 U.S. at 504 (explaining that rule 34 “is limited to parties to the
proceeding, thereby excluding their counsel or agents”). Applying this standard, courts have
found that corporations control documents in their subsidiaries’ hands, clients control case files
in their attorneys’ hands, and patients control health records in their healthcare providers’ hands.
See Simon v. Taylor, No. 12-0096, 2014 WL 6633917, at *35 (D.N.M. November 18,
2014)(Browning, J.)(citing United States v. Stein, 488 F. Supp. 2d 350, 360-62 (S.D.N.Y.
2007)(Kaplan, J.)); CSI Inv. Partners II, L.P. v. Cendant Corp., 2006 WL 617983, at *6
(S.D.N.Y. March 13, 2006)(Eaton, M.J.)(compelling a client’s attorney to disclose documents in
the attorney’s possession regarding the attorney’s representation of that particular client, but only
insofar as the documents were relevant). An employee’s or corporation’s ability to access the
documents in the normal course of business weighs in favor of finding control. See, e.g., Gerling
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Int’l Ins. Co. v. Comm’r of Internal Revenue, 839 F.2d 131, 140-41 (3d Cir. 1988)(stating that
where “agent-subsidiary can secure documents of the principal-parent to meet its own business
needs . . . the courts will not permit the agent-subsidiary to deny control for purposes of
discovery”); Camden Iron & Metal v. Marubeni America Corp., 138 F.R.D. 438, 441 (D.N.J.
1991)(including “demonstrated access to documents in the ordinary course of business” in list of
factors to be considered in determining control). Applying that standard, the Court, in Simon v.
Taylor, determined that a racing commission had legal control over test samples from horses,
because the commission “has the legal right to have those horses’ samples tested upon demand.”
2014 WL 6633917, at *35. In another case, the Court concluded that an oil company had control
over the payroll records a third-party payroll company possessed, because the oil company had
the practical ability to request that payroll company, which it contracted with, to produce those
payroll records on demand. See Landry v. Swire Oilfield Serv. LLC, No. 16-0621, 2018 WL
279749, at *19 (D.N.M. January 3, 2017)(Browning, J.).
Courts have specifically considered whether clients control information in their attorneys’
hands. Because a client has the right “to obtain copies of documents gathered or created by its
attorneys pursuant to their representation of that client, such documents are clearly within the
client’s control.” Am. Soc. For Prevention of Cruelty to Animals v. Ringling Bros. and Barnum
& Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006)(Facciola, M.J.). See Poppino v. Jones
Store Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)(“It is quite true that if an attorney for a party
comes into possession of a document as attorney for that party his possession of the document is
the possession of the party.”)(emphasis in original). Consequently, a party may be required to
produce a document that it has given to its attorney when the document relates to the attorney’s
representation of that client on a specific matter. See In re Ruppert, 309 F.2d 97, 98 (6th Cir.
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1962)(per curiam); Hanson v. Garland S.S. Co., 34 F.R.D. 493, 495 (N.D. Ohio 1964)(Connell,
J.)(concluding that witness statements which a party’s attorney takes in preparation of the case
were within the party’s control and subject to production under rule 34 on a proper showing);
Kane v. News Syndicate Co., 1 F.R.D. 738, 738-39 (S.D.N.Y. 1941)(Mandelbaum,
J.)(determining that a plaintiff in an action for copyright infringement could require the
defendants’ attorneys to produce a document from which the plaintiff hoped to ascertain whether
material had been obtained from his copyrighted works).
The mere fact, however, that the attorney for a party has possession of a
document does not make his possession of the document the possession of the
party. The paper may be one of his private papers which he had before the
relation of attorney and client was established. It is inconceivable that he should
be required to produce such a paper for the inspection of his client’s adversary.
The paper which he has in his possession may be the property of some other
client. It is inconceivable that he should be compelled to produce the document
belonging to another client because the adversary of one of his clients demands it.
Poppino v. Jones Store Co., 1 F.R.D. at 219. See Hobley v. Burge, 433 F.3d 946 (7th Cir.
2006)(observing that a party may not have had control over its former attorney’s documents);
Ontario Inc. v. Auto Enterprises, Inc., 205 F.R.D. 195 (E.D. Mich. 2000). Simply put, if a
person, corporation, or a person’s attorney or agent can pick up a telephone and secure the
document, that individual or entity controls it. See Simon v. Taylor, 2014 WL 6633917, at *34
(“Control is defined as the legal right to obtain documents upon demand.”).
LAW REGARDING PROTECTIVE ORDERS
“Federal district courts have broad discretion over discovery.” Morales v. E.D. Etnyre &
Co., 229 F.R.D. 661, 662 (D.N.M. 2005)(Browning, J.). The trial court has discretion to grant a
protective order pursuant to rule 26(c) of the Federal Rules of Civil Procedure. See Morales v.
E.D. Etnyre & Co., 229 F.R.D. at 663. Rule 26(c) provides that, upon a showing of good cause,
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a court may “issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense,” which may include forbidding disclosure or discovery.
Fed. R. Civ. P. 26(c)(1)(A). Accord Miller v. Regents of the Univ. of Colo., 188 F.3d 518
(Table), 1999 WL 506520, at *12 (10th Cir. 1999)(“The district court is in the best position to
weigh these variables and determine the appropriate limits because, unlike an appellate court, the
district court has the ability to view firsthand the progression of the case, the litigants, and the
impact of discovery on parties and nonparties.”).
“It is the party seeking the protective order who has the burden to show good cause for a
protective order.”
Velasquez v. Frontier Med. Inc., 229 F.R.D. 197, 200 (D.N.M.
2005)(Browning, J.). The party seeking the protective order must submit “a particular and
specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)(internal quotation marks omitted).
Although rule 26(c) is silent regarding the time within which the movant must file for a
protective order, “the United States Court of Appeals for the Tenth Circuit has held that a motion
under rule 26(c) for protection . . . is timely filed if made before the date set for production.”
Montoya v. Sheldon, No. CIV 10-0360, 2012 WL 2383822, at *5 (D.N.M. June 8, 2012)(internal
quotation marks and brackets omitted)(citing In re Coordinated Pretrial Proceedings in
Petroleum Prods. Antitrust Litig., 669 F.2d 620, 622 n.2 (10th Cir. 1982)).
LAW REGARDING SHIFTING DISCOVERY COSTS
Under the discovery rules, “the presumption is that the responding party must bear the
expense of complying with discovery requests.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at
358. A person from whom discovery is sought can, however, “invoke the district court’s
discretion under Rule 26(c) to grant orders protecting him from ‘undue burden or expense’ . . .
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including orders conditioning discovery on the requesting party’s payment of the costs of
discovery.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. at 358 (quoting Fed. R. Civ. P. 26(c)).
In cases involving electronic discovery, the Southern District of New York has stated that “[a]
court should consider cost-shifting only when electronic data is relatively inaccessible, such as in
backup tapes,” Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 324 (S.D.N.Y.
2003)(Scheindlin, J.)(emphasis in original), and that, when a court considers cost shifting, it
should consider eight factors:
(1) the specificity of the discovery requests; (2) the likelihood of discovering
critical information; (3) the availability of such information from other sources;
(4) the purposes for which the responding party maintains the requested data
(5) the relative benefit to the parties of obtaining the information; (6) the total cost
associated with production; (7) the relative ability of each party to control costs
and its incentive to do so; and (8) the resources available to each party,
Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y.
2002)(Francis IV, M.J.). See Zubulake v. UBS Warburg, LLC, 217 F.R.D. at 316 (“By far, the
most influential response to the problem of cost-shifting relating to the discovery of electronic
data was given by United States Magistrate Judge James C. Francis IV of this district in Rowe
Entertainment.”). See also Radian Asset Assur., Inc. v. College of Christian Bros. of N.M., 2010
WL 4928866, at *5 (D.N.M. Oct. 22, 2010)(Browning, J.)(“In the context of cost-shifting, courts
have held that the cost of producing data weighed against the likely relevance of the data
determines whether cost-shifting is appropriate.”).
LAW REGARDING THE FTCA
It is “axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983)(citations omitted). See Garcia v. United States, 709 F. Supp. 2d 1133, 1137 (D.N.M.
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2010)(Browning, J.)(“The United States cannot be sued without its consent.”); id. at 1137-38
(“Congressional consent -- a waiver of the traditional principle of sovereign immunity -- is a
prerequisite for federal-court jurisdiction.”). The law generally places the burden of proving
federal jurisdiction on the proponent of jurisdiction, and the party bringing suit against the
United States thus similarly bears the burden of proving that sovereign immunity has been
waived. See James v. United States, 970 F.2d 750, 753 (10th Cir. 1992). See also Garcia v.
United States, 709 F. Supp. 2d at 1138 (“The plaintiff bears the burden of proving that Congress
has waived sovereign immunity for all of his claims.”). A waiver of sovereign immunity cannot
be implied and must be unequivocally expressed. See United States v. Nordic Vill., Inc., 503
U.S. 30, 33-34 (1992); United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v.
Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922, 930 (10th Cir. 1996).
The Tenth Circuit has emphasized that all dismissals for lack of jurisdiction, including
those for a failure to establish a waiver of sovereign immunity under the FTCA, should be
without prejudice.
See Mecca v. United States, 389 F. App’x 775, 780 (10th Cir.
2010)(unpublished). It has explained: “A longstanding line of cases from this circuit holds that
where the district court dismisses an action for lack of jurisdiction . . . the dismissal must be
without prejudice.” Mecca v. United States, 389 F. App’x at 780 (quoting Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)). The Tenth Circuit held in Mecca v. United
States that the district court improperly dismissed with prejudice the plaintiff’s FTCA claims
after it concluded that it lacked jurisdiction over those claims. See 389 F. App’x at 780-81
(“Here, because the district court found itself without jurisdiction over the FTCA claims,
dismissal should have been entered without prejudice, even if the court deemed further
amendment futile. We therefore remand with instructions to enter dismissal of these claims
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without prejudice.”).
The FTCA waives the United States’ sovereign immunity for some tort actions against
the United States seeking money damages. See Romanach v. United States, 579 F. Supp. 1017,
1019 (D.P.R. 1984)(Laffitte, J.). In enacting the FTCA, Congess waived the United States’
sovereign immunity as to
claims against the United States, for money damages accruing on and after
January 1, 1945, for injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be held liable to the claimant
in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b). “The FTCA’s waiver of sovereign immunity is limited, however.” Cortez
v. EEOC, 585 F. Supp. 2d 1273, 1284 (D.N.M. 2007)(Browning, J.). “If the claim does not fall
within the FTCA’s express provisions, or if it falls within one of its exceptions, the claim is not
cognizable under the FTCA, and the court must deny relief.” Cortez v. EEOC, 585 F. Supp. 2d
at 1284 (citing Williams v. United States, 50 F.3d 299, 304-05 (4th Cir. 1995)). Moreover, the
only proper party in an action under the FTCA is the United States. See 28 U.S.C. § 2679(a);
Romanach v. United States, 579 F. Supp. at 1018 n.1 (holding that no suit under the FTCA may
lie against any agency of the United States eo nomine); Painter v. FBI, 537 F. Supp. 232, 236
(N.D. Ga. 1982)(Forrester, J.)(holding that “[t]he FBI may not be sued eo nomine”).
Even when the FTCA waives the United States’ sovereign immunity, the United States is
liable for FTCA claims, if at all, only “in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674. “The law of the place where the
alleged negligent conduct took place determines the scope of employment under the FTCA.”
Garcia v. United States, 2010 WL 2977611, at *18 (D.N.M. June 15, 2010)(Browning, J.)(citing
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28 U.S.C. § 1346(b)). See Richards v. United States, 369 U.S. 1, 9 (1962); Williams v. United
States, 350 U.S. 857, 857 (1955); Henderson v. United States, 429 F.2d 588, 590 (10th Cir.
1970)). Accordingly, “the United States is placed in the same position as a private individual by
rendering the United States liable for the tortious conduct of its employees if such conduct is
actionable in the state in which the United States’ action or inaction occurred.” Cortez v. EEOC,
585 F. Supp. 2d at 1284.
The Supreme Court has rejected a reading of the FTCA that would impose liability on the
United States only “to the same extent as would be imposed on a private individual ‘under the
same circumstances.’” Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955)(quoting 28
U.S.C. § 2674)(“The Government reads that statute as if it imposed liability to the same extent as
would be imposed on a private individual ‘under the same circumstances.’ But the statutory
language is ‘under like circumstances[]’ . . . .”). The FTCA did not spur “the creation of new
causes of action but acceptance of liability under circumstances that would bring private liability
into existence.” Feres v. United States, 340 U.S. 135, 141 (1950). It is important for a court to
consider the United States’ liability under all circumstances presented in the case as opposed to
selectively considering only a few of the circumstances. See Feres v. United States, 340 U.S. at
141-42. The Supreme Court has illustrated:
One obvious shortcoming in these claims is that plaintiffs can point to no liability
of a “private individual” even remotely analogous to that which they are asserting
against the United States. We know of no American law which ever has
permitted a soldier to recover for negligence, against either his superior officers or
the Government he is serving. Nor is there any liability “under like
circumstances,” for no private individual has power to conscript or mobilize a
private army with such authorities over persons as the Government vests in
echelons of command. The nearest parallel, even if we were to treat “private
individual” as including a state, would be the relationship between the states and
their militia. But if we indulge plaintiffs the benefit of this comparison, claimants
cite us no state, and we know of none, which has permitted members of its militia
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to maintain tort actions for injuries suffered in the service, and in at least one state
the contrary has been held to be the case. It is true that if we consider relevant
only a part of the circumstances and ignore the status of both the wronged and the
wrongdoer in these cases we find analogous private liability. In the usual civilian
doctor and patient relationship, there is of course a liability for malpractice. And
a landlord would undoubtedly be held liable if an injury occurred to a tenant as
the result of a negligently maintained heating plant. But the liability assumed by
the Government here is that created by “all the circumstances,” not that which a
few of the circumstances might create. We find no parallel liability before, and
we think no new one has been created by, this Act. Its effect is to waive
immunity from recognized causes of action and was not to visit the Government
with novel and unprecedented liabilities.
Feres v. United States, 340 U.S. at 141-42 (footnotes omitted).
The United States’ liability is coextensive with that of private individuals under the
respective states’ law, even if comparable government actors would have additional defenses or
additional obligations under that state’s law. See Ewell v. United States, 776 F.2d 246, 248-49
(10th Cir. 1985); Proud v. United States, 723 F.2d 705 (9th Cir. 1984)(“But appellants overlook
the fact that in enacting the FTCA, Congress -- not the Hawaii Legislature -- determined the tort
liability of the United States. And the FTCA specifically provides that the federal government’s
tort liability is co-extensive with that of a private individual under state law.”); Cox v. United
States, 881 F.2d 893, 895 (10th Cir. 1989)(citing Proud v. United States with approval and
stating that “[t]his and other courts have applied the same rationale in holding that the United
States may invoke the protection of a [private] recreational use statute”). The Tenth Circuit
illustrated some of these same principles in Ewell v. United States:
The main goal of the FTCA was to waive sovereign immunity so that the
federal government could be sued as if it were a private person for ordinary torts.
Congress was primarily concerned with allowing a remedy where none had been
allowed. There is no evidence that Congress was concerned with the prospect that
immunities created solely for private persons would shield the United States from
suit. The Supreme Court, in United States v. Muniz, 374 U.S. 150 . . . (1963),
considered whether it is appropriate to apply immunities created by state law to
the United States when it is sued under the FTCA. The Court was concerned with
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state laws that immunized prison officials from suits by prisoners and concluded
that it is “improper to limit suits by federal prisoners because of restrictive state
rules of immunity.” 374 U.S. at 164 . . . . The immunity under consideration in
that case applied to state, county and municipal prison officials. Noting its
decision in Indian Towing Co. v. United States, 350 U.S. at 65 . . . wherein the
Court determined that federal liability had to be determined as if it were a private
person and not as if it were a municipal corporation, it concluded that state law
immunity applicable to state, county and municipal prison officials would not be
applicable to a private person and, therefore, not applicable to the federal
government in a suit under the FTCA.
Thus, while immunities afforded state, county and municipal employees
are not applicable to the federal government when sued under the FTCA,
immunities created by state law which are available to private persons will
immunize the federal government because it is liable only as a private individual
under like circumstances. It is evident, therefore, that the Utah district court was
correct in granting the motion for summary judgment.
Ewell v. United States, 776 F.2d at 249.
In a unanimous decision, the Supreme Court recently reversed “a line of Ninth Circuit
precedent permitting courts in certain circumstances to base a waiver” under the FTCA “simply
upon a finding that local law would make a ‘state or municipal entit[y]’ liable.” United States v.
Olson, 546 U.S. 43, 44 (2005)(internal citation omitted). As the Supreme Court discussed in
United States v. Olson, the United States Court of Appeals for the Ninth Circuit based its
decision to find a waiver of liability under the FTCA on two principles:
In this case, two injured mine workers (and a spouse) have sued the United
States claiming that the negligence of federal mine inspectors helped bring about
a serious accident at an Arizona mine. The Federal District Court dismissed the
lawsuit in part upon the ground that their allegations were insufficient to show
that Arizona law would impose liability upon a private person in similar
circumstances. The Ninth Circuit, in a brief per curiam opinion, reversed this
determination.
It reasoned from two premises. First, where “‘unique
governmental functions’” are at issue, the Act waives sovereign immunity if “‘a
state or municipal entity would be [subject to liability] under the law [. . .] where
the activity occurred.’” Second, federal mine inspections being regulatory in
nature are such “‘unique governmental functions,’” since “there is no privatesector analogue for mine inspections.” The Circuit then held that Arizona law
would make “state and municipal entities” liable in the circumstances alleged;
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hence the FTCA waives the United States’ sovereign immunity.
546 U.S. at 45 (alterations in original)(citations omitted). The Supreme Court “disagree[d] with
both of the Ninth Circuit’s legal premises.” United States v. Olson, 546 U.S. at 45. Regarding
the first premise, the Supreme Court held:
The first premise is too broad, for it reads into the Act something that is
not there. The Act says that it waives sovereign immunity “under circumstances
where the United States, if a private person,” not “the United States, if a state or
municipal entity,” would be liable. Our cases have consistently adhered to this
“private person” standard. In Indian Towing Co. v. United States, this Court
rejected the Government’s contention that there was “no liability for negligent
performance of ‘uniquely governmental functions.’” It held that the Act requires
a court to look to the state-law liability of private entities, not to that of public
entities, when assessing the Government’s liability under the FTCA “in the
performance of activities which private persons do not perform.” In Rayonier Inc.
v. United States, the Court rejected a claim that the scope of FTCA liability for
“‘uniquely governmental’” functions depends on whether state law “imposes
liability on municipal or other local governments for the negligence of their
agents acting in” similar circumstances. And even though both these cases
involved Government efforts to escape liability by pointing to the absence of
municipal entity liability, we are unaware of any reason for treating differently a
plaintiff’s effort to base liability solely upon the fact that a State would impose
liability upon a municipal (or other state governmental) entity. Indeed, we have
found nothing in the Act’s context, history, or objectives or in the opinions of this
Court suggesting a waiver of sovereign immunity solely upon that basis.
United States v. Olson, 546 U.S. at 45-46 (citations omitted).
The Supreme Court rejected the Ninth Circuit’s second premise based on the following
rationale:
The Ninth Circuit’s second premise rests upon a reading of the Act that is
too narrow. The Act makes the United States liable “in the same manner and to
the same extent as a private individual under like circumstances.” As this Court
said in Indian Towing, the words “‘like circumstances’” do not restrict a court’s
inquiry to the same circumstances, but require it to look further afield. The Court
there considered a claim that the Coast Guard, responsible for operating a
lighthouse, had failed “to check” the light’s “battery and sun relay system,” had
failed “to make a proper examination” of outside “connections,” had “fail[ed] to
check the light” on a regular basis, and had failed to “repair the light or give
warning that the light was not operating.” These allegations, the Court held, were
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analogous to allegations of negligence by a private person “who undertakes to
warn the public of danger and thereby induces reliance.” It is “hornbook tort
law,” the Court added, that such a person “must perform his ‘good Samaritan’
task in a careful manner.”
United States v. Olson, 546 U.S. at 46 (alterations in original).
The Court has not located any Tenth Circuit decisions that have discussed the related
principles enunciated in United States v. Olson. The United States Court of Appeals for the
Third Circuit has since held, relying on United States v. Olson: “Under the FTCA, the federal
government can only be held liable for breaches of duties imposed on private, rather than state,
parties.” DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d 271, 283 n.9 (3d Cir. 2007). The
United States Court of Appeals for the Fifth Circuit has held, also relying on United States v.
Olson: “Because the federal government could never be exactly like a private actor, a court’s job
in applying the standard is to find the most reasonable analogy. Inherent differences between the
government and a private person cannot be allowed to disrupt this analysis.” In re FEMA Trailer
Formaldehyde Prod. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 288 (5th Cir. 2012)(citations
omitted).
According to one commentator, courts have generally had little difficulty in finding a
comparable factual analogy in the private sector for conduct in which the United States engages:
“Although, as indicated above, courts have generally had little difficulty in finding sufficiently
analogous private conduct, there have been exceptions, primarily in cases involving ‘quasilegislative’ actions, such as administrative rulemaking, and in cases involving law enforcement
officials, who, unlike private citizens, are required to make arrests in appropriate situations.” 2
L. Jayson & R. Longstreth, Handling Federal Tort Claims § 9.08[1], at 9-219 (2011). The Tenth
Circuit has stated: “It is virtually axiomatic that the FTCA does not apply where the claimed
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negligence arises out of the failure of the United States to carry out a [federal] statutory duty in
the conduct of its own affairs.” United States v. Agronics Inc., 164 F.3d 1343, 1345 (10th Cir.
1999). It recognized that “[o]ther courts invoke the same rule by the shorthand expressions of
immune ‘quasi-legislative’ or ‘quasi-judicial’ action.” United States v. Agronics Inc., 164 F.3d
at 1345.
Thus, for example, courts have rejected FTCA claims premised upon such
administrative/regulatory acts or omissions as: (i) the Federal Aviation Administration’s failure
to take enforcement action against an entity not complying with federal laws and rules; (ii) the
United States Department of Agriculture’s failure to prohibit the exportation of disease-exposed
cattle; and (iii) various agencies’ noncompliance with proper rulemaking procedures. See United
States v. Agronics Inc., 164 F.3d at 1346 (citations omitted)(finding no FTCA waiver for “the
unauthorized division of regulatory jurisdiction between two administrative agencies”).
The Court examined the exceptions to the FTCA’s waiver of sovereign immunity in
Coffey v. United States, 906 F. Supp. 2d 1114, 1157 (D.N.M. 2012)(Browning, J.). In that case,
a plaintiff brought a wrongful death and negligence action against the Bureau of Indian Affairs
based on its decision to contract with a county detention center. See 906 F. Supp. 2d at 1121.
The United States argued against liability on the grounds that the detention center was an
independent contractor and that the United States’ decision to contract with it fell within the
FTCA’s discretionary-function exemption. See 906 F. Supp. 2d at 1121. The Court agreed on
both points. See 906 F. Supp. 2d at 1121. It explained that the BIA’s decision to contract with
the detention center was “a matter of the BIA’s judgment and choice, which is susceptible to
policy analysis,” and thus protected under the discretionary function exemption. 906 F. Supp. 2d
at 1157. It added that the United States “is liable under the FTCA for the actions of its
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employees only,” thereby prohibiting liability for the detention center’s actions. 906 F. Supp. 2d
at 1164.
ANALYSIS
The Court will not quash the Begays’ subpoena to Leider. That subpoena does not offend
rule 45(d)(3)(A)(iii), because it does not request privileged information. See Response at 1;
Reply at 1. The subpoena does not impose an undue burden, because it requests a class of
documents -- nonprivileged documents “relating to proceedings before the Drug Enforcement
Administration (DEA) for Dr. Annicol Marrocco from 2013-2015,” see Response at 3 -- that is
not voluminous, see Tr. at 4:13-14 (Schofield)(estimating “about two banker’s boxes full of
documents”), and the Begays have few resources, see Tr. at 8:20-24 (Zedalis)(“The Begays are a
family of limited means. They don’t have running water. . . . They don’t have a structure on
their property.”); Fed. R. Civ. P. 26(b)(1)(stating that whether discovery is “proportional to the
needs of the case” depends, in part, on “the parties’ resources”). Despite the inconvenience,
there is no sound reason to shift the costs of a manageable document review -- particularly from
a lawyer and law firm that are well equipped to conduct such a review -- to the Begays’
attorneys, who are representing the Begays on a contingency-fee basis.
The Court also sees no sound reason to depart from the presumption that “the responding
party must bear the expense of complying with discovery requests.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. at 358. It therefore will not order the Begays to pay Marrocco’s or Leider’s
costs. The Court will, however, permit Marrocco and Mr. Leider to redact the name of the
patient involved in Marrocco’s DEA investigation -- even though Marrocco did not ask for such
redactions as a form of relief in the Motion -- because the Plaintiffs orally agreed to those
redactions at the Court’s hearing. See Tr. at 4:4-6 (Court, Zedalis).
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IT IS ORDERED that the Motion to Quash Plaintiffs’ Subpoena, filed March 30, 2017
(Doc. 110) is denied.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Margaret Moses Branch
Branch Law Firm
Albuquerque, New Mexico
--and-Seth T. Cohen
Cynthia Zedalis
Cohen & Zedalis LLP
Santa Fe, New Mexico
Attorneys for the Plaintiffs
James A. Tierney
Acting United States Attorney
Erin Langenwalter
Christopher F. Jeu
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Defendant
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