The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
BENJAMIN FOX, ET AL : CIVIL ACTION NO. 18-00502
VERSUS : JUDGE JAMES D. CAIN, JR.
NU LINE TRANSPORT, LLC, ET AL : MAGISTRATE JUDGE KAY
MEMORANDUM RULING AND ORDER
Before the court is a Motion to Quash Subpoenas filed by Plaintiffs Benjamin Fox and
Holly Fox, individually and on behalf of their minor children (hereinafter collectively referred to
as “Plaintiffs”). Doc. 88. The motion is opposed by defendants American Millennium Insurance
Company, Nu Line Transport, LLC and Simon Brumfield (hereinafter collectively referred to as
“Defendants”). Doc. 97. For the reasons that follow the motion is DENIED.
I.
BACKGROUND
This lawsuit alleges that defendant Simon Brumfield failed to observe three marked
emergency vehicles parked in the left lane of a highway when his vehicle collided with the
emergency vehicle in which plaintiff Benjamin Fox was sitting. Fox alleges that the accident
caused him bodily injuries. Doc. 1, att. 9, p. 3.
Defendants issued a notice of records deposition pursuant to Rule 45 to two non-parties,
the Center for Orthopaedics & Spine, LLC and Imperial Health Center for Orthopaedics. Doc. 89.
These subpoenas are identical and seek information regarding the number of interventional
injection treatments performed by Dr. Joseph W. Crookshank, III within the last five years and the
average amount of time between each injection treatment.1
Plaintiffs move to quash the subpoenas arguing that the information violates the Health
Insurance Portability and Accountability Act (“HIPAA”), is irrelevant, outside the scope of
discovery, and is unduly burdensome. Defendants oppose the motion arguing that plaintiffs lack
standing to challenge the non-party subpoenas and that the subpoenas do not violate HIPAA. In
reply, plaintiffs assert that they have standing to challenge the subpoenas under Rule 26 and the
subpoenas should be quashed as impermissible under that rule.
II.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 45(d)(3) governs the issuance of subpoenas to obtain
discovery from non-parties. The party issuing the subpoena “must take reasonable steps to avoid
imposing an undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P.
45(d)(1). A court must, on a timely motion, quash or modify a subpoena if it requires disclosure
of privileged or other protected matter, or otherwise subjects the subpoenaed person to undue
burden. Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv). Additionally, subpoenas under Rule 45 to a third
party “are discovery devices which, although governed in the first instance by Rule 45, are also
subject to the parameters established by Rule 26.” In re Application of Time, Inc., 1999 WL
804090 at *7 (E.D. La. Oct. 6, 1999)(citations omitted).
Rule 26(b)(1) defines the scope of discovery. It states, in part, “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). The factors the court should
consider when determining proportionality are “the importance of the issues at stake in the action,
1 Dr. Joseph W. Crookshank, III is one of Fox’s treating physicians.
the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Id.
For a party to have standing to quash a subpoena under Rule 45(d), the movant must “be
in possession or control of the requested material; be the person to whom the subpoena is issued;
or have a personal right or privilege in the subject matter of the subpoena.” Black v DMNO, LLC,
2018 WL 488991, *2 (E.D. La. Jan. 18, 2018)(citing Brown v. Braddick, 595 F.2d 961, 967 (5th
Cir.1979). Generally, a party attempting to quash a subpoena issued to a non-party does not have
standing “unless the objecting party claims some personal right or privilege with regard to the
documents sought.” Wright & Miller, 9A Fed. Prac. & Proc. Civ. § 2459 (3d ed.). A party
challenging a subpoena issued to a non-party may not object on the grounds that it “violates another
person’s privacy rights …, that the subpoena is overly broad, or that the subpoena seeks
information that is irrelevant because only the responding third party can object and seek to quash
a Rule 45 subpoena on those grounds.” River House Partners, LLC v. Grandbridge Real Estate
Capital, LLC, 2016 WL 3747613, *3 (M.D. La. July 11, 2016)(citing Frazier v. RadioShack Corp.,
2012 WL 832285, *1 (M.D. La. Mar. 12, 2012). A party does have standing to move for a
protective order pursuant to Rule 26(c)(1) to challenge the scope of a subpoena even if the party
does not have standing to move to quash the subpoena pursuant to Rule 45(d). Id.(citations
omitted).
The subpoenas here seek information from the Center for Orthopaedics & Spine, LLC and
Imperial Health Center for Orthopaedics regarding non-patient-specific statistical data about
injection treatments performed by Dr. Crookshank over a five-year period. The subpoenas
expressly state that they are “not requesting patient names, Social Security numbers, or any other
information that could be used to identify an individual patient.” Doc. 89, p. 8. We note that
plaintiffs are not in possession of or in control of the requested material, they are not the persons
to whom the subpoenas are issue, and they have no personal right or privilege in the subject matter
of the subpoenas. Thus we find that plaintiffs do not have standing to move to quash the subpoenas
under Rule 45(d).
Likewise, while plaintiffs also challenges the scope of the subpoenas under Rule 26(c), we
find that the subpoenas comport with the discovery standard set forth in the rule that parties may
“obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). We find that the
discovery sought by defendants complies with the rule.”
III.
CONCLUSION
Accordingly for the reasons stated,
IT IS ORDERED that the Motion to Quash Subpoenas [Doc. #88] is DENIED.
THUS DONE this 29" day of July, 2020.
THLEE
UNITED STATES MAGIS TE JUDGE
In their reply memorandum plaintiffs attach a letter written by the law firm that represents both the Center for
Orthopaedics & Spine, LLC and Imperial Health Center for Orthopaedics and contend that the entities have “formally
objected” to the subpoenas. Doc. 99, pp. 1-2. We first point out that neither entity joined in the instant motion nor
did it file its own motion with this court objecting to the subpoenas. Further, while the letter does set forth the usual
objections given in response to most discovery, it goes on to state that they do “wish to be cooperative in this matter
within reason” and have “communicated with its practice management and electronic medical records software
provider regarding whether the information requested can be retrieved ....” Doc. 99, att. 1, p. 1.
-4.