United States of America et al v. Bluewave Healthcare Consultants Inc et al
MEMORANDUM OPINION DENYING non-parties Kevin Carrier, Erika Guest, Charles Maimone, Kyle Martel, Gil Rabin, Darrin Thomas, and Laura Hoey supplemental motions to quash trial subpoenas (Dkt. Nos. 750 , 751 ). Signed by Honorable Richard M Gergel on 11/29/2017.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
United States of America, et al.,
Civil Action No. 9:14-230-RMG
ex rel. Scarlett Lutz, et al.,
Berkeley Heartlab, Inc., et al. ,
This matter is before the Court on non-parties Kevin Carrier, Erika Guest, Charles
Maimone, Kyle Martel, Gil Rabin, Darrin Thomas, and Laura Hoey supplemental motions to quash
trial subpoenas (Dkt. Nos. 750, 751.) For the reasons set forth below, the supplemental motions
to quash were denied after a hearing on November 28, 2017.
This case involves claims brought under the False Claims Act ("FCA"), 31 U.S.C. § 3729
et seq., against Defendants. A two-week trial is scheduled to begin on December 4, 2017 in
Charleston, South Carolina. Movants have been served trial subpoenas by the Government and/or
Defendants. Movants previously moved to quash because each Movant resides more than 100
miles from Charleston, South Carolina. The Court denied those motions to quash, holding that the
law provides for nationwide subpoena power in FCA cases. (See Dkt. No. 744.) The Court invited
supplemental motions asserting bases to quash other than distance from the courthouse. On
November 27, 2017, Movants filed supplemental motions to quash, asserting that the subpoenas
at issue are an undue burden under Rule 45(d)(3)(iv) of the Federal Rules of Civil Procedure. The
Court heard argument on the supplemental motions to quash on November 28, 2017, and, after
argument from Movants and from the parties, denied the motions to quash.
Rule 45( d)(3)(iv) of the Federal Rules of Civil Procedure provides that a district court must,
on timely motion, quash a subpoena that "subjects a person to undue burden." The determination
of undue burden is within the discretion of the district court. A subpoena that seeks information
irrelevant to the case is aper se undue burden. See Cook v. Howard, 484 F. App'x 805, 812 n.7
(4th Cir. 2012); HDSherer LLC v. Nat'! Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C.
2013) (Duffy, J.). A subpoena that would require a non-party to incur excessive expenditure of
time or money is unduly burdensome. Cook, 484 F. App'x at 812 n.7. Otherwise, "undue burden"
requires the district court to balance the interests served by demanding compliance against the
interests furthered by quashing the subpoena. 9A Charles Alan Wright & Arthur R. miller, Federal
Practice and Procedure § 2463.1 (3d ed. 2008).
The key factors are the relevance of the
information requested, the need of the party for the testimony, and whether it is available from
another source. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004).
Movants Kevin Carrier, Erika Guest, Charles Maimone, Kyle Martel, Gil Rabin, and Darrin
Thomas (the "Sales Movants") are former sales representatives for Defendants. They argue that
their testimony is not necessary and that it would be cumulative with other testimony. The parties
respond that the Sales Movants have personal knowledge of facts material to the present case.
This case is about Defendants' allegedly fraudulent sales practices. The Court finds that
testimony from Defendants' former sales representatives is potentially relevant to hotly disputed
material issues in this case. Further, the Court has not yet received evidence. It therefore declines
to consider at this time whether the Sales Movants' respective testimonies-which the Court has
not heard-will be cumulative with other evidence that might be introduced at trial.
The Sales Movants also argue that they will assert the Fifth Amendment right against selfincrimination at trial, and that it would be an undue burden to force them to assert that privilege
before the jury, especially because they would incur attorney's fees to retain counsel to advise
them to assert the Fifth Amendment privilege at trial. This Court follows other federal courts in
rejecting that argument. See Coquina Investments v. TD Bank, NA., 760 F.3d 1300, 1312 (11th
Cir. 2014) ("[I]t was appropriate for the district court to allow [Plaintiff] to call [a witness] to the
stand for the purpose of having him invoke the privilege in the jury's presence"); SEC v. Levin,
No. 1:12-CV-21917-UU, 2015 WL 11199842, at *1 (S.D. Fla. Mar. 18, 2015) ("[I]twould be [the
witness]'s choice to have his counsel travel to [the trial location].").
Certain Sales Movants (Mr. Maimone, Ms. Guest, Mr. Carrier, and Mr. Rabin) also aver
that their respective childcare obligations make compliance with the trial subpoenas an undue
burden. The Court is sympathetic to childcare difficulties but the parties' right to compulsory
process to obtain testimony from material witnesses certainly extends to witnesses who have
children. At the November 28, 2017 hearing, the Court directed the parties to make appropriate
accommodations for Movants' childcare obligations and other personal obligations, including
providing dates certain for testimony, providing same-day departure and return flights for those
dates where possible, and prepaying the witnesses' travel and lodging costs.
accommodations, Movants need only childcare for one or two days. Needing to obtain childcare
for one or two days is not a sufficiently extraordinary circumstance to quash a subpoena. The
Court therefore finds that requiring Mr. Maimone, Ms. Guest, Mr. Carrier, and Mr. Rabin to attend
trial does not subject them to an undue burden.
Movant Laura Hoey separately moves to quash based on other arguments. Ms. Hoey is a
lawyer at Ropes & Gray in Chicago. She formerly advised former Defendant Health Diagnostic
Laboratory, Inc. ("HDL") regarding processing and handling ("P&H") fees, which are a central
issue in this case. She has been subpoenaed by Defendants and moves to quash based on the
argument that she has been subpoenaed to support an advice of counsel defense yet her testimony
cannot be considered essential to that purpose because (1) Defendants did not rely on her opinion,
(2) she was never counsel for Defendants, (3) her involvement with HDL began in early 2013 ,
after the occurrence of most of the conduct at issue, and (4) the opinion that she gave to HDL was
that the P&H fees were a "red flag" and "posed a high level of risk" and that the Department of
Justice would consider them an Anti-Kickback Statute violation.
Defendants assert that Ms. Hoey provided legal advice to HDL regarding P&H fees in the
presence of Defendants, and they argue her testimony (as well as documents they may introduce
through her testimony) may serve to negate scienter, a necessary element of the Government' s
The Court finds Defendants' arguments sufficient to deny the motion to quash.
Defendants have set forth aprimafacie case for needing Ms. Hoey' s testimony. Subpoenas may
not be used to hale random persons into court without cause, but Ms. Hoey is not such a person.
Where that threshold condition is satisfied, issues regarding the relevancy of the witness ' s
testimony should not be litigated by non-parties before the parties have presented any testimony
or evidence in this case.
For the foregoing reasons, the Court DENIED the supplemental motions to quash of nonparties Kevin Carrier, Erika Guest, Charles Maimone, Kyle Martel, Gil Rabin, Darrin Thomas,
and Laura Hoey (Dkt. Nos. 750, 751.)
United States Distri t Court Judge
November !)_ 2017
Charleston, South Carolina
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