United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Andrea
Clinton for a protection order and/or to quash a subpoena
[Doc. #130] served on her attorney, Benjamin Anderson, for
records regarding compensation of an expert witness.
Defendant has responded in opposition and the issues are
brings this action alleging injuries sustained from ObTape,
an implanted medical device manufactured by Defendant and
used to treat stress urinary incontinence. Benjamin Anderson
is counsel for Plaintiff. Dr. Daniel Elliott is a
urogynecologist and an expert witness in this matter. Mr.
Anderson was served with a subpoena on September 14, 2016
seeking information and records relating to compensation that
Dr. Elliott has received relating to any transvaginal mesh
litigation or matter. [Doc. #131-1, p. 6]. Dr. Elliott was
deposed on July 24, 2016. Plaintiff moves to quash the
subpoena on the grounds that: (1) the MDL court entered a
case management order ordering all plaintiff-specific fact
discovery completed by September 14, 2015; (2) this
court's expert discovery deadline of July 15, 2016 has
passed; (3) this court has already addressed similar efforts
be defendant to proceed with general discovery in denying
defendant's efforts to take the deposition outside of the
discovery deadline; and (4) the subpoena is untimely,
over-broad and unduly burdensome.
initial matter, defendant questions plaintiff's standing
to bring this motion to quash the subpoena. Ordinarily, a
party “does not have standing to lodge objections to
the issuance of third-party subpoenas to ‘protect'
the third party from undue burden, inconvenience, and the
like.” Mayhall v. Berman & Rabin, P.A.,
No. 4:13CV00175 AGF, 2013 WL 4496279, at *3 (E.D. Mo. Aug.
21, 2013) (quoting Streck, Inc. v. Research &
Diagnostic Sys, Inc., No. 8:06CV458, 2009 WL 1562851, at
*3 (D. Neb. Jun. 1, 2009)). An adverse party has standing to
move to quash or modify a subpoena directed to a non-party if
it claims a personal right or privilege with respect to
information sought by a subpoena. Coffeyville Res. Ref.
& Mktg., LLC v. Liberty Surplus Ins. Corp., No.
4:08MC00017 JLH, 2008 WL 4853620, at *1 (E.D. Ark. Nov. 6,
2008) (finding that a plaintiff had a personal right or
privilege to its confidential business information);
Streck, Inc., 2009 WL 1562851, at *3 (finding that a
party lacks a personal right or privilege in protecting a
third-party from undue burden, inconvenience, and the like);
Chaikin v. Fid. & Guar. Life Ins. Co., No. 02 C
6596, 2003 WL 22715826, at *1 (N.D. Ill. Nov. 17, 2003)
(finding that a plaintiff has a personal right to their
individual investment and financial documents); Minnesota
Sch. Boards Ass'n Ins. Trust v. Employers Ins. Co. of
Wausau, 183 F.R.D. 627');">183 F.R.D. 627, 629 (N.D. Ill. 1999) (finding
that a plaintiff had a personal right or on work product
argues that she has a personal right and privilege to the
subject matter of the subpoena because Dr. Elliott examined
her and rendered opinions pertaining to injures she sustained
and that are the subject matter of the lawsuit. However, the
subpoena served on Mr. Anderson does not request
plaintiff-specific personal information pertaining to Dr.
Elliot's examination, or opinions on the injuries
plaintiff sustained. Defendant is not requesting individual
medical records, individual financial documents, proprietary
materials that are specific to the plaintiff, nor any other
information that would permit plaintiff to claim a personal
right or privilege. Thus, the Court finds that the plaintiff
lacks standing to move to quash the subpoena.
plaintiff did have standing, she still would not be entitled
to relief. Plaintiff's assertions that the subpoena is
untimely, over-broad and unduly burdensome are unpersuasive.
Fed.R.Civ.P. 45(d)(3)(A)(iv) requires a court to quash or
modify a subpoena that subjects a person to undue burden.
Plaintiff has presented no evidence that the subpoena or the
request itself is unduly burdensome. Further, the subpoena is
not untimely because the information was requested on June
20, 2016 - well before the expert discovery deadline of July
15, 2016. Plaintiff argues that the subpoena is over-broad
because defendant requests “any and all documents
pertaining to Dr. Daniel S. Elliot's compensation in
pelvic mesh litigation.” [Doc. #131-1]. However,
plaintiff does not present any support for her overbreadth
claim. In the initial request for documents from Dr. Elliot,
the defendant requested: (1) correspondence to or from
plaintiff's counsel that relates to compensation for your
study and/or testimony; and (2) time or billing records for
services rendered in this case. [Doc. 131-2, ¶3(a),
¶8]. In his deposition testimony, Dr. Elliot stated that
Mr. Anderson was his contact for his involvement in mesh
litigation and that Mr. Anderson would have all of the
documentation pertaining to records of Dr. Elliot's
compensation in litigating mesh or transvaginal products.
[Doc. #132-2]. Plaintiff does not deny that Mr. Anderson is
in possession of the requested documents. Both the initial
request for documents and Dr. Elliot's deposition
testimony support defendant's request.
IT IS HEREBY ORDERED that plaintiff's motion for
protective order and/or to quash ...