Gulley v. Lapaglia et al

Filing 103

ORDER granting 81 Motion to Quash Subpoena Duces Tecum of Tisha Breeding and granting 83 Motion to Quash Subpoena Duces Tecum of Tisha Breeding. The command that Ms. Breeding provide testimony under oath is QUASHED, and any accompanying command for documents is VACATED AS MOOT.Signed by Magistrate Judge H Bruce Guyton on 12/20/2013. (KAW)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
WESLEY ANTWAN GULLEY,
Plaintiff,
v.
MICHAEL A. LAPAGLIA, M.D., et al.,
Defendants.

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No. 3:12-CV-371
(BUNNING/GUYTON)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
On December 17, 2013, the parties appeared before the undersigned to address various
pretrial motions including certain motions to quash. The Motions to Quash the Subpoena Duces
Tecum of Patricia Breeding is now ripe for adjudication, and for the reasons stated herein, it will
be GRANTED.
The procedural posture and facts of this case are familiar to the Court and the parties. On
June 3, 2011, the Plaintiff was arrested and brought to Methodist Medical Center by police
officers for the City of Oak Ridge. At Methodist Medical Center, Plaintiff was subjected to a
digital rectal exam.

The exam was performed by Dr. Michael LaPaglia, an employee of

TeamHealth. The Plaintiff alleges that the exam and his treatment during his arrest violated 42
U.S.C. § 1983 and certain provisions of the Tennessee Code Annotated. He also presents
various tort claims related to the incident. Plaintiff has settled with Dr. Lapaglia, TeamHealth,
the City of Oak Ridge, and other defendants. At this time, only Methodist Medical Center and
Tammy Jones, R.N., remain as defendants in this case.

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, the Court must quash or
modify a subpoena that: (i) does not allow reasonable time to comply; (ii) requires a person to
comply beyond the geographical limits in Rule 45(c); (iii) requires disclosure of a privileged or
protected matter; or (iv) subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A). The
Court may also quash subpoenas where: (i) the subpoena would require disclosure of a trade
secret or confidential research; or (ii) the subpoena would require disclosure of an unretained
expert’s opinion. Fed. R. Civ. P. 45(c)(3)(B).
In the instant motion, the movant has indicated that the subpoena at issue should be
quashed pursuant to Rule 45(c)(3)(A), because it subjects the proposed deponent to an undue
burden. “Whether a subpoena imposes an ‘undue burden’ depends on the facts of the case
including the need for the documents or their relevance.” Waite, Schneider, Bayless & Chesley
Co. L.P.A. v. Davis, 2013 WL 146362, at *4 (S.D. Ohio Jan. 14, 2013) (citing Kessler v. Palstar,
Inc., 2011 WL 4036689, *1 (S.D. Ohio 2011)). The Court must also consider the parameters of
Rule 26 of the Federal Rules of Civil Procedure, which require a court to limit discovery if “the
discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive” or if “the burden or expense
of the proposed discovery outweighs its likely benefit.” Rule 26(b)(2)(C)(i), (iii).
Methodist Medical Center1 moves the Court to quash the deposition of Patricia Breeding.
Ms. Chadwick is an Integrity Compliance Officer for Covenant Health. Ms. Breeding is not a
party to this case, and she is not an employee of Methodist. Ms. Breeding has submitted an

Methodist Medical Center’s standing to move to quash the subpoena on Ms. Breeding’s behalf is
questionable. “Ordinarily, a party has no standing to seek to quash a subpoena issued to someone who is
not a party to the action unless the party claims some personal right or privilege with regard to the
documents [or testimony] sought.’” Mann v. Univ. of Cincinnati, Nos. 95–3195, 95–3292, 1997 WL
280188, at *4 (6th Cir. May 27, 1997). However, the Plaintiff did not argue that Methodist lacked
standing.
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Affidavit [Doc. 81-1], stating that she is familiar with the Covenant Health Code of Conduct.
She submits that, “while the Code has guidelines for appropriate standards of patient care, the
Code does not establish the standard of care for nurses practicing in Anderson County,
Tennessee, or a similar community in June 2011.” [Doc. 81-1 at ¶ 4]. Ms. Breeding states that
she has “never been informed of any events regarding the care and treatment of [Plaintiff] on
June 3, 2011.” [Id. at ¶ 5].
The Plaintiff responds that Ms. Jones claims she followed hospital policy in treating the
Plaintiff. [Doc. 84]. At the hearing, counsel for the Plaintiff reiterated that the Code of Conduct
and Ms. Breeding’s knowledge of it is relevant to the Plaintiff’s claims because Ms. Jones asserts
that she simply followed hospital policy. The Plaintiff also argues that the Code of Conduct may
yield relevant information relating to Methodist’s cooperation in permitting the examination.
On December 18, 2013, Methodist produced the Covenant Health Code of Conduct. The
Court has reviewed the Code of Conduct, and the Court finds that the document generally
addresses ethics – specifically ethics in business and the work place. The Court finds that only a
single page of the twenty-three page document addresses patient care, and only a few portions of
the material on that page are even arguably relevant to the instant case. [See Doc. 96-1 at 6].
The Code of Conduct offers little in the way of guidance or governance for patient care.
Therefore, the Court finds that Ms. Breeding’s testimony is unlikely to make facts at
issue in this case more or less probable, and as a result, it is not relevant. The Court finds that
the burden imposed upon Ms. Breeding in this deposition would be undue, since the deposition is
unlikely to yield relevant testimony. Alternatively, the Court finds that any de minimis relevancy
of Ms. Breeding’s testimony is outweighed by the burden of obtaining it. Therefore, the Court
will grant the request to quash the subpoena commanding Ms. Breeding’s testimony.

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With regard to any document production related to the subpoena duces tecum served
upon Ms. Breeding, the Court finds that this issue is moot. Neither party has presented a copy of
the subpoena duces tecum to the undersigned. However, the parties have indicated that the
subpoena sought the Code of Conduct.

The Code of Conduct was filed in CM/ECF on

December 18, 2013, and thus, it is now available to the Plaintiff. Because the Code of Conduct
was the primary document sought through the subpoena duces tecum, the Court finds that the
request for document production is now moot.
Based upon the foregoing, the Motions to Quash Subpoena Duces Tecum of Tisha
Breeding [Docs. 81, 83] are GRANTED. The command that Ms. Breeding provide testimony
under oath is QUASHED, and any accompanying command for documents is VACATED AS
MOOT.
IT IS SO ORDERED.
ENTER:

s/ H. Bruce Guyton
United States Magistrate Judge

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