Shively et al v. Johnson & Johnson et al

Filing 161

MEMORANDUM OPINION AND ORDER granting 145 MOTION by Teri Key Shively, John Shively to Quash Defendants' Notice of 30(B)(5) Records Deposition and Subpoena Duces Tecum directed to Northern Louisiana Medical Center, as more fully set forth herein; Defendants are ORDERED to promptly notify Northern Louisiana Medical Center of this ruling. Signed by Magistrate Judge Cheryl A. Eifert on 4/29/2016. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERI KEY SHIVELY, et al.,
Plaintiffs,
v.

Case No.: 2:12-cv-00379

ETHICON, INC., et al,
Defendants.
MEMORANDUM OPINION and ORDER
Pending before the court is Plaintiffs’ Motion to Quash Defendants’ Notice of
30(b)(5) Records Deposition and Subpoena Duces Tecum. (ECF No. 145). Defendants
have filed a response in opposition to the motion, and Plaintiffs have replied; therefore,
the issues are fully briefed. Having fully considered the arguments of the parties, the court
GRANTS Plaintiffs’ motion.
On March 15, 2016, the court entered Pretrial Order No. 217 in this civil action, the
third amended docket control order, which set a discovery deadline of April 1, 2016. (ECF
No. 120). On April 1, Defendants served non-party, Northern Louisiana Medical Center,
with a subpoena duces tecum compelling the production of a certified copy of Plaintiff
Teri Shively’s employment records and also requiring the appearance of a records
custodian at a deposition. On April 7, 2016, Plaintiffs moved to quash the subpoena on
the basis that it was untimely in view of the scheduling order. On April 14, 2016, Missy
Goodwin, the HR Generalist at Northern Louisiana Medical Center, responded to the
subpoena duces tecum by sending a letter to defense counsel. In the letter, Ms. Goodwin
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explained that she had looked for Ms. Shively’s records in storage, but had been unable to
locate them. However, she agreed to forward the records in the event that they turned up
in the future.
In light of this letter, Defendants argue that Plaintiffs motion is moot and should
be denied. Plaintiffs contend that the motion is not moot given Ms. Goodwin’s agreement
to forward the records if they are found. Plaintiffs continue to assert that they are entitled
to quashal of the subpoena due to its untimely service.
As a general rule, “only the party or person to whom the subpoena is directed has
standing to move to quash or otherwise object to a subpoena.” Transcor, Inc. v. Furney
Charters, Inc., 212 F.R.D. 588, 590 (D. Kan. 2003) (citation omitted). However, an
exception exists when the person objecting has a personal right or privilege in the
information sought by the requester. Singletary v. Sterling Transport Company, Inc.,
289 F.R.D. 237, 239 (E.D. Va. 2012). Although the subpoena in this case is directed to
Northern Louisiana Medical Center, the undersigned finds as a preliminary matter that
Plaintiff Teri Shively has the requisite standing. Clearly, Plaintiff has a personal right or
privilege in her employment records, and a corresponding right to move to quash the
subpoena duces tecum seeking those records.
Here, the court ordered discovery to close on April 1, 2016. Consequently, barring
an agreement or court order to the contrary, any activity related to discovery—including
the compliance date of the subpoena—had to occur on or before April 1, 2016. Defendants
did not serve the subpoena until April 1; accordingly, the subpoena was served too late for
Northern Louisiana Medical Center to be expected to comply with its requirements during
the discovery period. Thus, the court agrees with Plaintiffs. The subpoena was served too
late and must be quashed.
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Defendants’ contention that Ms. Goodwin’s letter renders Plaintiffs’ motion moot
is not persuasive. Ms. Goodwin leaves the door open for future production of the
employment documents, suggesting that she may continue to search for them.
Considering that the subpoena was not timely served, Northern Louisiana Medical Center
should be promptly notified that it no longer has an obligation to devote resources in an
effort to comply with the subpoena.
Therefore, the Motion to Quash is GRANTED and the subpoena duces tecum
served on Northern Louisiana Medical Center for production of Ms. Shively’s
employment records and for a records custodian’s deposition is QUASHED. Defendants
are ORDERED to promptly notify Northern Louisiana Medical Center of this ruling.
The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: April 29, 2016

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