Mayhew v. Loved Ones In Home Health Care, LLC et al

Filing 310

ORDER granting 307 MOTION by Loved Ones In Home Health Care, LLC, Donna Skeen to Quash Subpoenas, as more fully set forth herein. Signed by Magistrate Judge Dwane L. Tinsley on 1/10/2020. (cc: counsel of record; any unrepresented party) (kew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PAMELA MAYHEW, et al.,
on behalf of themselves and others
similarly situated,
Plaintiffs,
v.

CIVIL ACTION NO. 2:17-cv-03844

LOVED ONES IN HOME HEALTH
CARE, LLC, et al.,
Defendants.

ORDER
Before this Court is the motion to quash subpoenas filed by Defendants Loved Ones
In Home Care, LLC (“Loved Ones”), and Donna Skeen (“Skeen”) (collectively,
“Defendants”). (ECF No. 307.) On or about August 7, 2019, Plaintiffs Pamela Mayhew
and Betsy Farnsworth (collectively, “Plaintiffs”) served upon Skeen and two other
individuals whom Defendants represent are agents of Loved Ones subpoenas to testify at
trial in this action, which was initially set to begin on August 27, 2019, at 9:30 a.m. (ECF
No. 307-1; see ECF No. 277; see also ECF No. 307 at 2.) The subpoenas also requested
that the witnesses bring “Video records of all 2017-2018 meetings with any plaintiffs
conducted for the purpose of resolving overtime claims” and “Audio records of all
telephone calls placed to any plaintiff by any agent of Defendant at any time after the early
December 2018 dissemination of a proposed arbitration agreement and addendum and
the substance of which relates in any way to those documents.” (ECF No. 307-1 at 2, 5,
8.)

Defendants filed their motion to quash the subpoenas on August 21, 2019, arguing
that the subpoenas were untimely because they requested discovery after the close of the
discovery period set out in the scheduling order and that compliance with the subpoenas
would impose an undue burden on Defendants because the video and audio recordings
sought are catalogued only by date and time and because each call would have to be
screened in order to ensure compliance with federal health care privacy laws. (ECF No.
307.) To date, Plaintiffs have not filed a response to the motion.
“Trial subpoenas are typically used to ensure the availability at trial of original
documents previously disclosed by discovery.” Dent v. Siegelbaum, No. DKC 08-cv0886, 2012 WL 718835, at *11 (D. Md. Mar. 5, 2012) (citing Rice v. United States, 164
F.R.D. 556 (N.D. Okla. 1995); Mortg. Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562, 567
(W.D.N.C. 2002)). For that reason, they “may not constitute discovery, and therefore
may properly be filed and served following the close of the discovery period.” Kitchens,
210 F.R.D. at 567 (citing Rice, 164 F.R.D. at 558 n.1; Puritan Inv. Corp. v. ASLL Corp.,
No. 97-cv-1580, 1997 WL 793569, at *1 (E.D. Pa. Dec. 9, 1997)).
However, Defendants’ motion to quash makes clear that the requests in the
subpoenas in this case were not issued for the purpose of securing the availability of trial
evidence but rather for the purpose of conducting additional discovery after the discovery
deadline. Of note, the undersigned held a hearing on May 22, 2019, at which the parties
discussed at least some of the recordings requested in the trial subpoenas, and Defendants
were ordered to “allow Plaintiffs’ counsel to listen to the recorded phone calls made
between the time the arbitration agreement and the addendum were distributed and the
deadline to sign the agreements.” (ECF No. 290 at 4.) Despite this express permission
to obtain the requested discovery, Defendants represent in their motion to quash that
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Plaintiffs’ counsel never “specifically identified” the recordings he sought or came to
inspect them. (ECF No. 307 at 3.) Plaintiffs have not filed a response to challenge this
representation, so the undersigned can only assume that it is true and that Plaintiffs did
not pursue the discovery despite the undersigned’s permission to do so.
“Trial subpoenas are not substitutes for discovery.” Dent, 2012 WL 718835, at *11.
That is, “[a] trial subpoena is not an appropriate means of ascertaining facts or uncovering
evidence.”

Id. (quoting Puritan Inv. Corp., 1997 WL 793569, at *2).

Plaintiffs

essentially seek to do that here: they have not viewed or listened to the recordings, so they
cannot possibly know the recordings’ content or how the recordings would support their
case at trial. Plaintiffs “could and should have . . . pursued [the recordings] during the
authorized discovery period.”

Id.

“[A] party cannot use a trial subpoena to obtain

documents that were requested—but not produced—during the course of discovery . . . .”
Id. Accordingly, Defendants’ motion to quash (ECF No. 307) is GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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January 10, 2020