Stephenson v. Carolinas Physicians Network, Inc. et al
ORDER granting 25 Plaintiff's Motion to Quash Third Party Subpoenas and for Protective Order. Plaintiff shall provide full discovery responses to Defendants as directed, on or before December 1, 2021. Signed by Magistrate Judge David Keesler on 11/17/21. (mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 3:21-CV-103-FDW-DCK
COURTNEY D. STEPHENSON,
ATRIUM HEALTH, INC., CAROLINAS
PHYSICIANS NETWORK, INC., and
THIS MATTER IS BEFORE THE COURT on “Plaintiff’s Motion To Quash Third
Party Subpoenas And For Protective Order” (Document No. 25). This motion has been referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is
appropriate. Having carefully considered the motion and the record, the undersigned will grant
Plaintiff Courtney D. Stephenson (“Plaintiff” or “Stephenson”) initiated this action with
the filing of a “Complaint” (Document No. 1) on March 11, 2021. By this action, Plaintiff “seeks
to remedy violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.,
to redress issues of interference and retaliation related to Dr. Stephenson’s requests for and taking
of protected family leave.” (Document No. 1, p. 1). Stephenson alleges retaliatory treatment
began immediately after taking FMLA leave in June 2019, and culminated with her wrongful
termination in November 2019. (Document No. 1, pp. 2, 8-17). The Complaint includes claims
for: unlawful interference with FMLA benefits; discrimination and retaliation for taking leave
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under the FMLA; breach of contract; breach of covenant of good faith and fair dealing; negligent
infliction of emotional distress; and intentional infliction of emotional distress. (Document No.
1, pp. 17-29).
The Honorable Frank D. Whitney, Jr. issued a “Case Management Order” (Document No.
18) on June 16, 2021. The Case Management Order, inter alia, set the following deadlines:
discovery completion – December 1, 2021; mediation report – December 29, 2021; dispositive
motions – January 12, 2022; and trial – May 2, 2022. (Document No. 18, p. 2).
“Defendants’ Motion For Partial Judgment On The Pleadings” (Document No. 21),
regarding Plaintiff’s claims for negligent and intentional infliction of emotional distress was filed
on July 21, 2021. On October 5, 2021, Judge Whitney issued an Order granting Defendants’
motion and finding Plaintiff’s NIED and IIED claims to be deficient. (Document No. 33).
“Plaintiff’s Motion To Quash Third Party Subpoenas And For Protective Order”
(Document No. 25) was filed September 7, 2021. By the pending motion, Plaintiff seeks to quash
four (4) proposed third-party subpoenas by Defendants directed to Plaintiff’s current and
prospective employers. (Document No. 25, p. 1). The motion to quash has been fully briefed and
is ripe for review. See (Document Nos. 25-2, 26, and 32).
STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense 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.
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Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
A motion for protective order “must include a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute
without court action.” Fed.R.Civ.P. 26(c)(1). “The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression or undue burden or expense,
including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying
terms . . . ; (C) prescribing a discovery method other than the one selected by the party seeking
discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters…..” Id.
Plaintiff contends that the subpoenas Defendants propose to serve on her current and
prospective employers – Piedmont Medical Center, Cleveland Clinic, Mayo Clinic, and the
University of North Carolina at Chapel Hill – are “vastly overbroad and seek information that has
no articulable relationship to the issues in this case.” (Document No. 25-2) see also (Document
No. 25-1). “Moreover, Dr. Stephenson has already agreed to directly provide any relevant
information sought in these subpoenas, making the subpoenas harassing and duplicative.” Id.
Plaintiff further contends a party “has standing both to move to quash the subpoena and to
seek a protective order under Rule 26(c).” (Document No. 25-2, p. 4) (citing Fed.R.Civ.Proc.
45(c)(3) and Singletary v. Sterling Transport Co., 2012 U.S. Dist. LEXIS 159865, at * 10 (E.D.Va.
Nov. 7, 2012) (citing Cook v. Howard, 484 Fed.Appx. 805, 2012 U.S. App. LEXIS 18053, n. 7, at
*19-20 (4th Cir. Aug. 24, 2012)). “Whether a party moves under Rule 45(c) or Rule 26, the legal
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standard is the same. As the Singletary court noted, ‘[t]he scope of discovery allowed under a
subpoena is the same as the scope of discovery allowed under Rule 26.’” Id.
In support of her motion, Plaintiff argues that the subpoenas at issue request information
that “has no arguable bearing on the issues in this case – such as her performance at jobs
subsequent to the allegations in this case.” (Document No. 25-2, p. 4). She further asserts that the
proposed subpoenas are “written as all-encompassing,” seeking broad categories of documents,
including the entire application files of her prospective employers. (Document No. 25-2, p. 5).
Plaintiff suggests that the “only arguable relevance of these documents to this litigation is
that they may evince Dr. Stephenson’s mitigation of damages based on the alternative employment
opportunities she had following termination.” (Document No. 25-2, pp. 5-6). However, Plaintiff
contends she has already agreed to produce documents related to mitigation of damages.
(Document No. 25-2, p. 6). Stephenson argues that service of the subpoenas “will only further
embarrass” her “before her colleagues in the very small and insular medical field of fetal surgery
and may cause further damage to her reputation” and should be quashed since they “serve no
original purpose and are duplicative.” Id.
In opposition, Defendants argue that Plaintiff’s discovery responses have been “extremely
limited” regarding her current and prospective employers. (Document No. 26, pp. 2-4). The
parties held a “meet-and-confer” on August 27, 2021, at which Plaintiff’s counsel allegedly
“agreed that Plaintiff would supplement her production and responses and provide a privilege log
. . . however, [as of September 14, 2021] no supplementation has been provided.” (Document No.
26, p. 4). “Defendants served notice on September 3, 2021, pursuant to Local Rule 45.2 that
Defendants would issue the proposed subpoenas to the Mayo Clinic, the Cleveland Clinic, UNC-
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Chapel Hill, and Piedmont Medical Center.” Id. In light of Plaintiff’s objections, the proposed
subpoenas have not yet been served. Id.
In support of allowing the subpoenas, Defendants contend that Plaintiff
claims that she has been deprived of her “life’s work” but objects to
Defendants’ efforts to determine exactly the type of practice and
medical procedures that she has been involved in at UNC and
Piedmont and as importantly what type of practice and medical
procedures she could be involved in had she accepted other
employment offered to her.
(Document No. 26, p. 3). Defendants go on to aver that the proposed subpoenas are relevant to
Plaintiff’s alleged damages, her ability to mitigate those damages, her failure to mitigate those
damages, her alleged emotional distress, and her credibility. (Document No. 26, p. 5). Defendants
argue, noting that Plaintiff seeks millions of dollars in damages, that they are not required to rely
on Plaintiff’s word that all the relevant documents have been produced. Id.
Defendants explain that the discovery they seek, such as communications regarding
Plaintiff’s termination and what kind of work she has performed and/or had the opportunity to
perform, including fetal surgeries, is central to the issues in dispute and proportional to the needs
of the case. (Document No. 26, pp. 6-7).
Defendants further argue that the proposed “subpoenas will not burden, harass, or prejudice
Plaintiff in any way.” (Document No. 26, p. 9). To the extent Plaintiff seeks to quash the
subpoenas to avoid publicity or embarrassment, Defendant contends she waived those arguments
by filing a public lawsuit and by her and/or her counsel contributing to “significant press attention”
such as counsel giving a televised interview about the claims. (Document No. 26, p. 10).
In reply, Plaintiff asserts that there is “no legitimate reason” to allow the proposed
subpoenas, and that the “subpoenas are redundant; the information has already been requested
from Dr. Stephenson and she has already provided (or agreed to provide) the vast majority of it.”
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(Document No. 32, p. 1). Plaintiff lists the information sought by the subpoenas and re-asserts
that she has already produced many responsive documents and “agreed, through counsel, to
provide any additional, responsive information in her possession.” (Document No. 32, pp. 2-3).
Plaintiff contends that she is “plainly subjected to ‘annoyance, embarrassment, oppression,
or undue burden’ by having her prospective employers within a small medical community forced
to produce otherwise private files.” (Document No. 32, p. 4). Plaintiff then notes that she is
concerned about the burden placed on potential employers, not the notice it gives them of the
instant action. (Document No. 32, p. 4, n. 4).
In her final argument, Plaintiff argues that the proposed motions should be quashed because
the information sought is available from a more convenient source – Plaintiff herself. (Document
No. 32, p. 5). Plaintiff provides that
Pursuant to Fed. R. Civ. P. 26(b)(2)(C), “the court must limit the
frequency or extent of discovery otherwise allowed by these rules ...
if it determines that the discovery sought ... can be obtained from
some other source that is more convenient, less burdensome, or less
expensive....” In this case, the information sought is obtainable (or
has already been obtained) from Dr. Stephenson, who was a party to
the requested offers, contracts and communications. See HDSherer,
292 F.R.D. at 309 (quashing subpoena under Rule 26(b) because “[i]t
is undisputed that all of the information sought by Plaintiffs in the
subpoenas duces tecum involves contracts, communications, and
payments to which Defendant is a party.”).
(Document No. 32, p. 6). Plaintiff further states that Defendants have “recently propounded
additional discovery on Dr. Stephenson which directly request[s] the information sought in the
subpoenas.” Id. (citing Document Nos. 27-1 and 27-2).
Plaintiff concludes that the proposed subpoenas are overly broad, burdensome, and
embarrassing and that “the information has already been sought and/or received from Dr.
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The undersigned finds that the instant discovery dispute presents a close and difficult call.
On the one hand, the undersigned agrees that the proposed subpoenas are overly broad, duplicative,
and burdensome in their current form. See (Document No. 25-1, pp. 7, 12, 16, 20). However,
they also seek information that is clearly discoverable.
Plaintiff’s most persuasive argument is that the discovery Defendants seek is more
appropriately and efficiently obtained from Plaintiff. See (Document No. 27, pp. 6-7) (citing
Fed.R.Civ.P. 26(b)(2)(C)). According to Plaintiff, she has already produced or will produce much
of the information Defendants seek.
Unfortunately, Plaintiff’s commitment to provide the
information is vague and provides no specific timetable for production.
The undersigned concludes that the proposed subpoenas do seek relevant information that
Defendants are entitled to request from third parties, if Plaintiff is unwilling or unable to provide
satisfactory responses. Although there is some disagreement over the applicability of Fed.R.Civ.P.
45 in this situation, there seems to generally be agreement that the Court has discretion to address
this discovery dispute in accordance with Fed.R.Civ.P. 26 (b) and (c).
Consistent with Rules 26(b)(2)(C) and (c)(1), the undersigned directs Defendants not to
serve the proposed subpoenas. Instead, Plaintiff shall provide documents and/or responses to the
requested information if she has not already done so. See (Document No. 25-1, pp. 7, 12, 16, 20).
Plaintiff shall promptly complete and/or supplement all her discovery responses. Discoverable
information in Plaintiff’s possession, or that can be obtained by Plaintiff, related to her current
and/or prospective employers, is summarized below and shall be produced without further delay:
applications for employment; offers of employment; proposed and
actual employment agreements and contracts; correspondence
relating to Dr. Stephenson’s potential or actual work for the
employer or prospective employer, including communications about
the scope of Dr. Stephenson’s responsibilities and duties;
communications describing Dr. Stephenson’s salary and benefits;
Case 3:21-cv-00103-FDW-DCK Document 38 Filed 11/18/21 Page 7 of 8
communications as to Dr. Stephenson’s reasons for rejecting or
accepting employment offer(s); list of fetal care procedures
performed by Dr. Stephenson for any employer since November 1,
2019; documents reflecting any marketing of Dr. Stephenson as a
fetal care surgeon; communications regarding Dr. Stephenson’s
employment with and termination from Atrium; and any other
communications related to Dr. Stephenson’s applications for work.
Plaintiff seems to indicate in her briefs that she already has, or can, provide the foregoing
information. If Plaintiff is unwilling or unable to produce documents responsive to the requested
information listed above, Defendants may seek any missing information from Plaintiff’s current
and prospective employers through appropriately revised and narrowed subpoenas.
IT IS, THEREFORE, ORDERED that “Plaintiff’s Motion To Quash Third Party
Subpoenas And For Protective Order” (Document No. 25) is GRANTED as described herein.
Plaintiff shall provide full discovery responses to Defendants as directed, on or before December
Signed: November 17, 2021
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