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In re Fuller

United States District Court, D. Maine

October 11, 2019

In Re Mary Fuller

         Civil Action No. 2:16-cv-03631-PHX-DJH U.S.D.C. District of Arizona)

          MEMORANDUM DECISION AND ORDER ON MOTION TO QUASH SUBPOENA

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE.

         Mary Fuller, a Maine resident serving as a nonparty expert witness in the above-captioned disability claim action pending in the United States Court for the District of Arizona (“District of Arizona”), seeks to quash portions of a subpoena duces tecum served on her by defendant Austin Jerome Philbin, M.D., on the basis that those portions subject her to an undue burden in violation of Federal Rule of Civil Procedure 45. See Motion To Quash Subpoena (“Motion”) (ECF No. 1) at 1-2. In a similar case involving Ms. Fuller in 2013, Judge Hornby denied a motion to compel her to comply with a subpoena duces tecum on the basis that compliance would impose an undue burden. See Fuller v. Unum Grp. (“Fuller I”), Civil No. 2:13-MC-140-DBH, 2013 WL 5967019, at *1 (D. Me. Nov. 8, 2013). I perceive no material difference between this case and Fuller I and, accordingly, grant the Motion.

         I. Applicable Legal Standards

         Rule 45 provides, in relevant part, “On timely motion, the court for the district where compliance is required” - in this case, the District of Maine - “must quash or modify a subpoena that . . . subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iv).[1] The movant bears the burden of establishing that the portions of the subpoena at issue impose an undue burden on her. See, e.g., 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (“Wright & Miller”) § 2463.1, at 507 (3d ed. 2008).

         “Whether a subpoena subjects a witness to undue burden . . . usually raises a question of the reasonableness of the subpoena[, ]” requiring “a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it[.]” Id. at 501 (footnote omitted). “[T]his process of weighing a subpoena's benefits and burdens calls upon the trial court to consider whether the information is necessary and whether it is available from any other source[, ]” which is “obviously . . . a highly case specific inquiry and entails an exercise of judicial discretion.” Id. at 501-06 (footnotes omitted).

         “In addition, subpoenas duces tecum 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.” Hume v. Consol. Grain & Barge, Inc., CIVIL ACTION NO. 15-935, 2016 WL 7385699, at *2 (E.D. La. Dec. 21, 2016) (citations and internal quotation marks omitted). See also, e.g., EEOC v. Tex. Roadhouse, Inc., 303 F.R.D. 1, 2 (D. Mass. 2014) (“A subpoena issued to a non-party pursuant to Rule 45 is subject to Rule 26(b)(1)'s overriding relevance requirement.”).

         In turn, Rule 26 provides, in relevant part:

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, considering the importance of the issues at stake in the action, 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.

Fed. R. Civ. P. 26(b)(1). As in the case of Rule 45(d)(3)(A)(iv), analysis pursuant to Rule 26(b)(1) requires the court to “engage[] in a balancing test, weighing the defendants' need for this information, the availability of other means of obtaining it, and the burden placed on the claimants by the subpoenas.” Tex. Roadhouse, 303 F.R.D. at 2.

         II. Background

         Dr. Philbin is an in-house doctor at Paul Revere Life Insurance Company (“Paul Revere”), a subsidiary of Unum Group (“Unum”). Opposition to Motion To Quash Subpoena (“Opposition”) (ECF No. 3) at [1] & n.1.[2] The plaintiff in the underlying action, Mark Biliack, M.D., sued Paul Revere, Unum, Dr. Philbin, and another in-house doctor, Suzanne Benson, M.D., in the District of Arizona for the alleged bad-faith denial of his claim of total disability. Declaration of Theona Zhordania (“Zhordania Decl.”), Exh. 1 (ECF No. 3-1) to Opposition, ¶¶ 1, 3.

         Ms. Fuller, an expert designated by Dr. Biliack, Motion at 1, formerly worked for UNUM and UnumProvident, the predecessors in interest to defendant Unum, id. at 2; Declaration of Mary Fuller (“Fuller Decl.”), Exh. B (ECF No. 1-2) to Motion, ¶ 2. In 2002, shortly after Ms. Fuller's position with UnumProvident was eliminated, she began offering her services as a consultant and expert witness in disability insurance claims-handling cases. Fuller Decl. ¶¶ 12, 14-17. Ms. Fuller is almost always hired by plaintiffs, and has testified more frequently in cases against Unum than in cases against all other insurers combined. Motion at 2; Fuller Decl. ¶ 22. Ms. Fuller has written a report expressing the opinion that Paul Revere, Unum, Dr. Philbin, and Dr. Benson denied Dr. Biliack's disability claim in bad faith because, inter alia, they improperly used and/or conducted surveillance video, did not conduct an independent medical examination (“IME”), and/or failed to order a Functional Capacity Evaluation (“FCE”) and credit an FCE provided by Dr. Biliack. Zhordania Decl. ¶ 3.

         Dr. Philbin obtained a subpoena from the District of Arizona, dated April 23, 2019, commanding Ms. Fuller not only to testify at a deposition to be held in Portland, Maine, but also to produce 18 categories of documents. See Subpoena To Testify at a Deposition in a Civil Action (“Subpoena”), Exh. A (ECF No. 1-1) to Motion, at Page ID ## 11, 14-17. Ms. Fuller filed the instant motion on May 31, 2019, seeking to quash document request Nos. 10 through 17, see Motion at 3-4, which directed her to provide:

10. All of YOUR expert reports in which YOU rendered opinions or testified against any insurance company (other than UNUM) within the last five years.
11. All DOCUMENTS, including any expert opinion, deposition testimony, affidavit/declaration or trial testimony, that evidence or reflect any opinion(s) rendered by YOU that an Independent Medical Examination or Functional Capacity Evaluation conducted by an insurance company was reasonable, thorough, fair or in good faith.
12. All DOCUMENTS, including any expert opinion, deposition testimony, affidavit/declaration or trial testimony, that evidence or reflect any opinion(s) rendered by YOU that surveillance conducted by an insurance company was [a] reasonable, ...

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