Ebert v. C.R. Bard, Inc.

Filing 28

MEMORANDUM re MOTION to Quash 1 filed by Frank Lynch (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 04/07/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MELISSA EBERT,
Plaintiff

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v.
C.R. BARD, INC., et al,
Defendants

CIVIL NO. 1:13-MC-277

MEMORANDUM
I.

Introduction
This matter is before the court on the motion to quash subpoena (Doc. 1)

filed by nonparty Frank Lynch, M.D. (“Dr. Lynch”). Plaintiff Melissa Ebert opposes the
motion. For the reasons that follow, we will grant the motion and quash the subpoena.
II.

Background
Plaintiff filed suit against C.R. Bard, Inc. and Bard Peripheral Vascular

(collectively, “Bard”) in the Eastern District of Pennsylvania, civil action no. 5:12-cv01253-LS, to recover damages for personal injuries allegedly sustained as a result of
a defective medical device. Plaintiff alleges that the inferior vena cava filter (“IVC fiter”)
implanted in her body, a device designed by Bard to prevent blood clots from traveling
from the lower portions of the body to the heart and lungs, is defective and
unreasonably dangerous because it cannot withstand the normal stresses associated
with placement within the human body.
On May 1, 2013, Plaintiff served nonparty Dr. Lynch, an interventional
radiologist employed by Penn State Milton S. Hershey Medical Center (“Hershey
Medical Center”), with a subpoena to testify at a deposition on May 22, 2013, along
with requests to produce twenty-one categories of documents at the deposition. (Doc.
1-1). Plaintiff’s document requests are far-reaching in scope and not limited to a
particular time frame. For example, Plaintiff requests “[a]ny and all documents,
electronically store information (ESI), electronic media, and electronic data . . . relating

or pertaining in any way to all communications with any Interventional Radiologists
and/or other physicians concerning the use of [IVC filters].” (Id. at 9).
On May 17, 2013, Dr. Lynch brought the matter before this court by filing a
motion to quash the subpoena pursuant to Federal Rule of Civil Procedure 45. (Doc.
1). In support of his motion to quash, Dr. Lynch indicated that he has never treated
Plaintiff and has no factual information regarding Plaintiff or her surgery at St Luke’s
Hospital as described in the civil action filed in the Eastern District of Pennsylvania.
Dr. Lynch argued that the subpoena should be quashed for the following reasons: (1)
the subpoena did not provide a reasonable time for compliance; (2) compliance with
the subpoena would cause an undue burden based on the overly broad requests for
production of documents; (3) compliance would require the disclosure of privileged,
confidential, and proprietary commercial information; and (4) producing the requested
documents would essentially require Dr. Lynch to disclose an expert report, even
though he has not been retained to produce such a report. Dr. Lynch also requested
that Plaintiff be ordered to pay the attorney’s fees and costs associated with quashing
the subpoena.
On May 20, 2013, the Court entered an order granting Dr. Lynch’s motion
on the “on the basis that the subpoena fails to allow a reasonable time for
compliance.” (Doc. 2 at 1). We also established a briefing schedule so the parties
could address the remaining issues raised in the motion, including Dr. Lynch’s request
for attorney’s fees. Following numerous extensions of time sought by the parties and
granted by the court, Dr. Lynch filed a brief in support of the motion to quash on
December 6, 2013. (Doc. 17). In this brief, Dr. Lynch expounds on the arguments
raised in his initial motion, and indicates for the first time that the information
subpoenaed is contained in electronic version on the computer server owned and

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maintained by the Hershey Medical Center. Dr. Lynch also indicates that he is not
authorized to release information on this server.
Plaintiff filed her brief in opposition (Doc. 25) on February 19, 2014,
disagreeing with the various positions advanced by Dr. Lynch. Plaintiff contends that
Dr. Lynch should be required to produce the information he possesses which is
relevant to Plaintiff’s case, as well as hundreds of other product liability cases handled
by her counsel and others regarding Bard’s IVC filters.1 Dr. Lynch filed a reply brief
and supporting affidavit on March 14, 2014. (Docs. 26, 27). The matter is ripe for
disposition.
III.

Legal Standard
Federal Rule of Civil Procedure 45 governs the issuance of subpoenas,

through which a party may seek discovery from a nonparty. Rule 45 requires, in
pertinent part, that a subpoena “command each person to whom it is directed to . . .
produce designated documents, electronically stored information, or tangible things in
that person’s possession, custody, or control.” Fed. R. Civ. P. 45(a)(1)(A)(iii)
(emphasis added).
This subpoena power is not without limits, however, and “[a] party or
attorney responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the subpoena.”
Fed. R. Civ. P. 45(d)(1). To that end, courts must–on timely motion–quash or modify a
subpoena that “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv).
When analyzing whether a subpoena places an undue burden on a nonparty, courts
consider issues such as relevance, the requesting party’s need for the documents, the

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Plaintiff no longer seeks to depose Dr. Lynch, but maintains that her requests
for documents are proper. The court, therefore, will limit its analysis to the propriety of
the document requests.
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breadth of the request, the time period covered, the particularity with which the
documents are described, and the burden imposed in responding. Lindsay v. C. R.
Bard, Inc., No. 1:MC-10-441, 2011 U.S. Dist. LEXIS 6531, *4 (M.D. Pa. Jan. 24, 2011)
(citing Grider v. Keystone Health Plan Cent., Inc., No. 05-MC-40, 2005 U.S. Dist.
LEXIS 44069, *26 (M.D. Pa. July 28, 2005)).
Courts are also required–on timely motion–to quash or modify a subpoena
that “requires disclosure of privileged or other protected matter, if no exception or
waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii). Courts are permitted to quash or
modify a subpoena if it requires the disclosure of either: (1) “a trade secret or other
confidential research, development, or commercial information”; or (2) “an unretained
expert’s opinion or information that does not describe specific occurrences in dispute .
. . .” Fed. R. Civ. P. 45(d)(3)(B)(i-ii).
IV.

Discussion
Dr. Lynch advances a number of persuasive arguments that warrant

quashing the subpoena at issue. First, while a nonparty may be required to produce
documents that are in his “possession, custody, or control,” Fed. R. Civ. P.
45(a)(1)(A)(iii), Dr. Lynch has submitted an affidavit indicating that the documents
sought by Plaintiff in this instance are on the computer server owned by his employer,
Hershey Medical Center. (Doc. 26 at 2). Dr. Lynch further avers that he is not
authorized to release information contained on that server or to permit others to
access the information contained therein. (Id.).
In light of such a denial by Dr. Lynch that he has possession, custody, or
control of the requested documents, the burden shifts to Plaintiff to demonstrate that
Dr. Lynch has the “practical ability to obtain the documents at issue.” Tiffany (NJ) LLC
v. Qi Andrew, 276 F.R.D. 143, 148 (S.D.N.Y. 2011) (citations omitted). Plaintiff has

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made no such showing in this case.2 Accordingly, we cannot compel Dr. Lynch to
produce documents from the servers of Hershey Medical Center.
Second, even if the documents were in his possession, custody, or control,
we agree that the subpoena improperly subjects Dr. Lynch to an “undue burden”
under Rule 45(d)(3)(A)(iv). Plaintiff’s twenty-one document requests are far-reaching
in scope and not limited to a particular time frame. By way of example, Plaintiff
requests any and all information “relating or pertaining in any way to all
communications with anyone from [Bard], or any of their employees, agents,
representatives, managers, executives, subsidiaries, sales representatives or outside
consultants concerning any of their [IVC filters].” (Doc. 1-1 at 9). Plaintiff similarly
requests any information pertaining to any communications Dr. Lynch ever had with
any physicians concerning IVC filters, as well as any investigation into harm
associated with the use of IVC filters. (Id.). While some of the information obtained
from Dr. Lynch through these vast requests could be helpful to her case, Plaintiff has
not demonstrated that she would be unable to obtain the relevant information through
discovery with the parties actually involved in that suit. Further, in light of Dr. Lynch’s
lack of involvement in the treatment of Plaintiff, the burden imposed by such broad
requests is particularly onerous when compared to the potential relevance of the
requested materials.

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Demonstrating a recognition of the principle that a Rule 45 subpoena must be
served on the individual or entity who has custody, control, or possession of the
requested documents, Plaintiff states in her brief that she has also “subpoenaed
Hershey Medical Center requesting the same documents . . . .” (Doc. 25 at 16).
Plaintiff indicates that she has not received the requested documents from Hershey
Medical Center, then cryptically states “[u]nfortunately, pursuant to the local rules,
Plaintiff must file a miscellaneous action in order to allow for Hershey to comply with
the Subpoena.” (Id.). As the matter is not before us, we pass no judgment on the
propriety of any subpoena served on Hershey Medical Center.
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Third, given the sweeping nature of the document requests and Dr.
Lynch’s lack of involvement in the treatment or care of Plaintiff, we conclude that
failing to quash the subpoena would also improperly require Dr. Lynch to disclose his
expert opinion, even though he has not been retained or compensated for such
opinion. See Fed. R. Civ. P. 45(d)(3)(B)(ii) (permitting court to quash or modify a
subpoena if the subpoena requires the disclosure of “an unretained expert’s opinion or
information that does not describe specific occurrences in dispute . . . .”). Retained
experts are compensated for their time and efforts spent generating reports and
testifying, and failing to quash the subpoena at issue in this matter would effectively let
Plaintiff get the milk without buying the cow.
Fourth, quashing the subpoena is appropriate because it requires the
disclosure of privileged and confidential information. See Fed. R. Civ. P.
45(d)(3)(A)(iii) (directing courts to quash or modify a subpoena that “requires
disclosure of privileged or other protected matter, if no exception or waiver applies”);
Fed. R. Civ. P. 45(d)(3)(B)(i) (permitting courts to quash or modify a subpoena if it
requires the disclosure of “trade secret or other confidential research, development, or
commercial information”). Plaintiff’s sweeping requests would require Dr. Lynch to
disclose, inter alia, the records and identifying information of Dr. Lynch’s own patients,
various communications with other physicians, and proprietary information of Bard,
with whom Dr. Lynch has entered into a confidentiality agreement. The court will not
countenance such disclosure given Plaintiff’s expansive requests and the limited utility
of the information sought.
In light of the foregoing, the court finds that quashing the subpoena is
appropriate. Further, we conclude that by initially serving this overbroad subpoena and
continually seeking its enforcement over the past eleven months, Plaintiff’s counsel

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has failed to take “reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Thus, we will award Dr.
Lynch the attorney’s fees incurred to date to have the subpoena quashed. See
Spencer v. Steinman, 179 F.R.D. 484, 487-89 (E.D. Pa. 1998) (ordering plaintiff's
counsel to pay attorney’s fees incurred by defendant to have subpoena quashed). Dr.
Lynch shall have fourteen days from the date of this order to provide documentation
sufficient to substantiate his claim for $4,427.50 in attorney’s fees.
V.

Conclusion

For the foregoing reasons, we will grant Dr. Lynch’s motion to quash
subpoena (Doc. 1) and award him the attorney’s fees he has incurred as a result. We
will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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