Party May Lack Standing to Challenge Document Subpoena Served on Its Testifying Expert Unless Privilege or Work Product Protection Is Jeopardized
Fuller v. Unum Grp., 2013 U.S. Dist. LEXIS 160074 (D. Me. Nov. 8, 2013):
The pending motions (motion to compel, motion to quash, and motion to strike) confront the tension between Rules 26 and 45 when a party uses a Rule 45 subpoena duces tecum to seek document discovery from an opposing party's testimonial expert where that expert is located in a different District than the forum where the underlying lawsuit is proceeding. It also exemplifies the uncomfortable role for the Rule 45 compliance court when a different court is in charge of discovery, scheduling, and the rest of the underlying lawsuit.
I decline to adopt the Magistrate Judge's narrow interpretation of the scope of Fed. R. Civ. P. 45 (the subpoena rule).
Footnote 1. In particular, an interpretation of the Advisory Committee comment to the 1991 revision of Rule 45.
Because Rule 45 will change substantially on December 1, 2013, for cases like this (unless Congress acts before then to prevent it), however, little would be gained by lengthy exposition.
Footnote 2. For a useful summary of the changes, see Gregory P. Joseph, "Major Changes in Federal Subpoena Practice," 82 U.S.L.W. 584 (Oct. 22, 2013).
I reach the same outcome as the Magistrate Judge, declining to enforce the subpoena, but I do so on the basis that compliance imposes an undue burden. See Fed. R. Civ. P. 45(c)(3)(A)(iv).
Paul Revere Life Insurance Company and Unum Group (hereafter collectively "Unum") obtained a subpoena duces tecum from this court on June 10, 2013. It was directed to Mary Fuller, a Maine resident who has been named as a testifying expert for the plaintiff in a lawsuit pending against Unum in the District of Arizona. Lalani v. Paul Revere Life Ins. Co., No. CV-12-975-PHX-SMM (D. Ariz.). The plaintiff in that lawsuit alleges "breach of contract and insurance bad faith after her claim for disability insurance was terminated." Mot. to Compel at 1 (ECF No. 1). Fuller has previously been hired in about 360 cases and has testified on insurance bad faith in over 70 cases, all in favor of a plaintiff and against the insurer. Id. at 2; Opp'n to Mot. to Compel and Mot. to Quash at 2 (ECF No. 5); Aff. of Mary Fuller ¶¶ 21, 23-14 (ECF No. 5-1). Unum says that it was a defendant in over 40 of those cases. UNUM's Objection to the Magistrate Judge's September 18, 2013 Order at 2 (ECF No. 11).
In the subpoena duces tecum, Unum asked Fuller for all her billing records, time sheets, invoices, notes, fee agreements, or other documentation (including electronic records) reflecting the time Fuller spent relating to claims against Unum since 2001, divided into the following four categories: where Fuller was not disclosed as an expert witness; where she was disclosed as an expert witness; where she concluded that Unum acted reasonably and/or in good faith; and where she concluded that Unum acted unreasonably and/or in bad faith. Subpoena Duces Tecum at 6, Document Requests A-D (ECF No. 1-1). Unum also asked for all expert witness reports that Fuller has prepared since 2001 in two categories: where Fuller concluded that Unum acted reasonably and/or in good faith; and where Fuller concluded that any insurer acted reasonably and/or in good faith. Id. Document Requests E-F.
Unum served the subpoena duces tecum on June 11, 2013. Objections to Subpoena Duces Tecum (ECF No. 1-4). Although Unum took Fuller's deposition in Boston on June 20, 2013, interestingly the subpoena duces tecum directed production of the records at its Portland lawyers' office on June 26, 2013. Subpoena Duces Tecum at 1. Neither Fuller nor Unum has furnished a transcript of the entire June 20 deposition and I therefore do not know what was said about the subpoena duces tecum at the deposition. Apparently Fuller did not satisfy the subpoena duces tecum then, because the next day, June 21, Fuller objected to the subpoena duces tecum in a written response. Objections to Subpoena Duces Tecum. On July 3, 2013, Unum filed in this District its motion to compel compliance. Mot. to Compel. (It appears that under governing caselaw Unum is not able to enforce its subpoena duces tecum in the District of Arizona, but only in this Maine forum.
Footnote 4. I am not aware that Fuller ever consented to the Arizona forum's jurisdiction over her. She has suggested in her opposition papers that Arizona is the proper place to decide the scope of discovery, but the Arizona forum's power goes only to the plaintiff. Similarly my jurisdiction goes only to Fuller. The reader can decide whether litigation gamesmanship is going on.
The Ninth Circuit, of which the District of Arizona is part, has held that only the court that issued the subpoena, not the court where the underlying lawsuit is pending, can entertain a motion to quash or modify a subpoena. SEC v. CMKM Diamonds, Inc., 656 F.3d 829, 832 (9th Cir. 2011).) Neither the Arizona plaintiff nor Fuller sought any protective order in either Maine or Arizona and Fuller did not file any motion in this court until her response to Unum's motion to compel. In responding to that motion, Fuller finally moved to quash, but the Arizona plaintiff has remained silent.
Footnote 5. I assume that the plaintiff's Arizona lawyers know what is going on here in Maine both because the plaintiff is likely on the hook (in the first instance) for all Fuller's time and attorney fees here, and because Unum's lawyers said at oral argument that the plaintiff's lawyers in Arizona told him he would have to go to Maine to enforce the subpoena. But I observe that some of the cases hold that the party whose expert receives the subpoena duces tecum does not have standing to challenge the subpoena unless there is a privilege issue. See, e.g., Newcomb v. Principal Mut. Life Ins. Co., 2008 WL 3539520, **1-2 (W.D. N.C. August 11, 2008); Greer v. Anglemeyer, 1996 WL 56557, *1 (N.D. Ind. January 5, 1996).
The Magistrate Judge reasoned from an Advisory Committee comment to the 1991 revision of Rule 45 that this District has no role in the dispute, therefore denied the motion to compel compliance, and found the attendant motion to quash (and a motion to strike that it generated) moot.
I conclude that this District does have authority to evaluate the merits of the Rule 45 motion, albeit mindfully of the structure of Rule 26. It is unnecessary to elaborate on my reasoning for that conclusion, however, for I reach the same outcome as the Magistrate Judge (declining to enforce the subpoena), and the text of the Rule is about to change dramatically in less than three weeks. I turn, therefore, directly to the standards of Rule 45 and assess whether compliance with the subpoena duces tecum, in the language of Rule 45, "imposes an undue burden." See Rule 45(c)(3)(A)(iv). It is Fuller's obligation (a heavy burden according to Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961)) to show "undue burden."
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