Nickerson et al v. State Farm Insurance Company
Filing
73
MEMORANDUM OPINION AND ORDER Granting As Framed Dft's 62 Motion for Protective Order. Signed by Senior Judge Frederick P. Stamp, Jr on 10/27/11. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATRICIA A. NICKERSON and
RUSSELL E. NICKERSON,
Plaintiffs,
v.
Civil Action No. 5:10CV105
(STAMP)
STATE FARM INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING AS FRAMED DEFENDANT’S
MOTION FOR PROTECTIVE ORDER1
I.
Background
The plaintiffs filed this civil action in the Circuit Court of
Marshall County.
for
Underinsured
In their complaint, the plaintiffs make claims
Motorist
Coverage
under
their
State
Farm
Automobile Insurance policy, as well as for bad faith denial of
coverage under that policy following an automobile accident on
November 5, 2009 in St. Clairsville, Ohio.
Mrs Nickerson was
allegedly injured in that accident as a result of the negligence of
an underinsured driver.
Mr. Nickerson seeks to recover damages
for loss of spousal consortium.
The defendant removed the action
to this Court based upon diversity jurisdiction under 28 U.S.C.
§ 1332.
1
This memorandum opinion and order confirms in detail the
ruling given to counsel by letter earlier today.
Under the November 30, 2010 scheduling order in this case,
expert disclosures were to be made, and were made, in June and
early July of 2011, and all discovery closed by August 1, 2011.
No
motions or stipulations have been filed to extend any deadlines set
by the November 2010 scheduling order.
On October 21, 2011,
defendant State Farm filed a motion for protective order in an
attempt to quash a subpoena duces tecum served upon it and a second
upon its designated expert witness, Dr. Zorub, on October 19, 2011
demanding production of “Copies of all reports authored by Dr.
David Zorub at the request or for the benefit of State Farm
Insurance Company . . .” The subpoenas requested copies of any and
all depositions and/or “IME” reports authored on behalf of State
Farm by Dr. Zorub.2
The defendant argues that the information
requested in these subpoenas is outside the scope of discovery
allowed by Federal Rule of Civil Procedure 26 because it is not
relevant nor is it calculated to lead to the discovery of relevant
information. Further, State Farm contends that information already
presented to the plaintiffs is sufficient for plaintiffs to base a
line of questioning designed to show bias during cross-examination.
Finally, the defendant says that neither Dr. Zorub nor State Farm
2
Information regarding the actual documents sought is taken
from the plaintiff’s response to the defendant’s motion for
protective order. While copies of the subpoenas were provided to
this Court, each subpoena refers to documents “as identified in the
attached Exhibit.” However, the “attached exhibits” have not been
provided to the Court.
2
possess deposition and trial transcripts for every case in which
Dr. Zorub has testified in the past four years, and obtaining this
information would be unduly burdensome.
The plaintiffs filed a response to the motion for protective
order.
In their response, the plaintiffs aver that, on October 6,
2011, the day before Dr. Zorub’s earlier scheduled deposition, the
defendant provided a list of cases in which Dr. Zorub had served as
an expert witness, and the list revealed that State Farm employs
Dr. Zorub quite often in this capacity.
The plaintiffs also
explain that they have obtained previous reports of Dr. Zorub’s in
which he came to the same medical conclusion that he has reached in
this case.
As such, they argue, the information requested by the
challenged subpoenas is relevant for an inquiry into the extent of
possible bias on the part of Dr. Zorub.
It is further argued that
counsel for the defendant has informed the plaintiffs that Dr.
Zorub
is
in
possession
of
the
reports
sought
but
not
the
transcripts.
The plaintiffs also maintain that all requested
materials
discoverable
are
under
Rule
26
because
the
sought
materials are depositions and reports authored by the defendant’s
expert.
For the reasons stated herein, this Court finds that the
subpoena in issue is untimely.
Therefore, the defendant’s motion
for protective order is granted for that reason.
3
II.
Applicable Law
Rule 16 of the Federal Rules requires that the court presiding
over a civil action set a schedule by way of a scheduling order,
which can only be modified “for good cause and with the judge’s
consent.”
Fed. R. Civ. P. 16(b)(4).
Further, Rule 16 mandates
that scheduling orders “limit the time to join other parties, amend
the pleadings, complete discovery, and file motions.” Fed. R. Civ.
P. 16(b)(3)(a) (emphasis added).
The general provisions governing the scope and methods for
discovery are defined in Rule 26 of the Federal Rules of Civil
Procedure.
Under Rule 26(a)(5), the federal rules outline the
methods for obtaining discovery:
Parties may obtain discovery by one or more of the
following methods: depositions upon oral examination or
written questions; written interrogatories; production of
documents or things . . . under Rule 34 or 45(a)(1)(c)
. . .
III.
Discussion
While it is an unsettled subject in the Fourth Circuit, a
majority of federal courts, including this Court, have found that
Rule 45 subpoenas duces tecum constitute discovery under Rule 26,
and are thus subject to the time limitations of Rule 16 Scheduling
Orders with only slim exceptions.
Martin v. Oakland County, 2008
WL 4647863, (E.D. Mich. Oct. 21, 2008) (No. 2:06-CV-12602); Rice v.
United States, 164 F.R.D. 556 (N.D. Okla. 1995); Fabery v. MidSouth Ob-GYN, 2000 WL 35641544 (W.D. Tenn. May 15, 2008) (No.
4
06-2136 D/P); Mortgage Information Services, Inc. v. Kitchens, 210
F.R.D. 562 (W.D.N.C. 2002); Puritan Inv. Corp. v. ASLL Corp., 1997
WL 793569 (E.D. Pa. Dec. 9, 1997 (No. CIV. A. 97-1580); Alper v.
US, 190 F.R.D. 281 (D. Mass., 2000); Garvin v. So. States Ins.
Exch. Co., 2007 U.S. Dist. LEXIS 63664 (N.D. W. Va. Aug. 28, 2007)
(No. 1:04-CV-73); Haught v. The Louis Berkman LLC, Civil Action No.
5:03-CV-109 (N.D. W. Va. Feb. 22, 2006). In addition to the strong
weight of case law favoring the conclusion that Rule 45 subpoenas
constitute discovery, logic independently mandates such a finding.
Rule 26 specifically includes subpoenas of documents pursuant to
Rule 45 as a means of discovery, and in requesting documents
through Rule 45, parties seek to obtain information about their
case that is held by another party, the identical purpose which
drives all types of Rule 26 discovery.
Further, subpoenas duces tecum seeking production of documents
from third-parties likewise constitute discovery.
Federal Rule of
Civil Procedure 34(c) focuses on subpoenas and production of
documents by third-parties.
Rule 34(c) states:
“[a]s provided in
Rule 45, a nonparty may be compelled to product documents and
tangible things.” As aptly articulated by the Northern District of
Oklahoma in Rice, “[t]he inclusion of references to Rule 45 within
Rules 26 and 34 is a clear indication that procuring documents from
non-parties can constitute [sic] discovery.”
5
164 F.R.D. at 557.
Although the issue of timeliness of the subpoenas was not
raised by either party in this case, it is clear to this Court that
the subpoenas constitute discovery, and are therefore subject to
this Court’s discovery deadline of August 1, 2011, set forth in the
scheduling order for this case.
The plaintiffs are seeking to
discover information that, by their own admission, they intend to
use to “further explore any potential bias on the part of Dr.
Zorub.”
This
is
an
intention
that
does
not
fall
into
any
conceivable exception to the general conclusion that Rule 45
subpoenas constitute discovery.
The plaintiffs do not already
possess copies of this information and are simply seeking originals
for use at trial, nor are they attempting to obtain documents to
serve
as
exhibits
in
conjunction
with
information
previously
discovered pursuant to depositions or answers to interrogatories or
the like.
See Garvin, 2007 U.S. Dis. LEXIS 63664, *8-9.
The
plaintiffs seek to discover and further investigate evidence of
bias on the part of the defendant’s expert.
Additionally, the defendant identified Dr. Zorub as its expert
witness in this case on June 14, 2011, allowing the plaintiffs
roughly one and one-half months to serve him with subpoenas to
obtain documents for use to show bias during cross-examination. It
is not a novel concept to impeach an expert witness based upon
possible bias toward the party hiring the expert. Nor is it
reasonable to believe that the possibility of impeaching based upon
6
such bias would have never occurred to the plaintiffs until the
receipt of Dr. Zorub’s history with State Farm. Accordingly, there
is no reason why the plaintiffs would have been unable to research
Dr. Zorub’s past work as an expert during discovery.
Nor does the fact that the parties had apparently informally
agreed to depose Dr. Zorub after the discovery deadline, or that
State Farm has previously acquiesced to post-discovery subpoenas
served by the plaintiffs, alter this Court’s determination as to
the subpoenas at issue here.
Under Rule 16, rights to conduct
discovery after the discovery deadline set by the Scheduling Order
do not exist without good cause and leave of the court.
No motions
for extension of discovery or for leave to serve post-discovery
subpoenas have been filed, nor has leave been granted.
The time
constraints mandated by Rule 16 exist for the purposes of avoiding
delay and preventing burden and surprise late in the case as the
parties prepare for trial. Circumventing these discovery deadlines
“unnecessarily lengthens [the] discovery process, and diverts the
parties’ attention, from the post-discovery aspects of preparing a
case for Trial.”
Marvin Lumber & Cedar Co. v. PPG Indus., 177
F.R.D. 443, 445 (D. Minn. 1997). Further, this Court maintains the
inherent power vested with the federal courts to control the
progression of cases before it, and currently declines to allow
further discovery to occur five days before trial is set to begin.
Woodson v. Surgitek, 57 F.3d 1406, 1417 (5th Cir. 1995) (“The
7
federal courts are vested with the inherent power ‘to manage their
own
affairs
so
as
to
achieve
the
orderly
and
expeditious
disposition of cases.’ This power is necessarily incident to the
judicial power granted under Article II of the Constitution.”)
(quoting Link v. Wabash R. Co., 370 U.S. 626, 630 (1962). A
district court is afforded “substantial discretion in managing
discovery . . .”
Inc.,
43
F.3d
Lone Star Steakhouse & Saloon v. Alpha of Va.,
922,
929
(4th
Cir.
1995).
Accordingly,
the
defendant’s motion for protective order must be granted as the
subpoenas subject to the motion are untimely under this Court’s
scheduling order for this case.
However, the deposition of Dr.
Zorub scheduled to commence, by agreement of counsel, on October
28, 2011 at 10:00 a.m. shall proceed but without the obligation of
Dr. Zorub or State Farm to comply with the requests in the two
October 19, 2011 subpoenas duces tecum.
IV.
Conclusion
For the reasons stated above, the defendant’s motion for
protective order is hereby GRANTED AS FRAMED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
8
DATED:
October 27, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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