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Phillips v. Ottey

United States District Court, D. Maryland

November 7, 2016



          DEBORAH K. CHASANOW United States District Judge.

         Presently pending and ready for resolution in this case are the following motions: (1) a motion to quash subpoena, filed by Plaintiff Arthur Phillips ("Plaintiff") (ECF No. 79); (2) a motion for protective order, filed by Defendants Colin Ottey, Ava Joubert, Greg Flury, Katie Winner, Carla Buck, Kristi Cortez, and Wexford Health Sources, Inc. ("Defendants") (ECF No. 85); (3) Defendants' motion to seal (ECF No. 86); (4) Plaintiff's motion to seal (ECF No. 91); and (5) Plaintiff's motion for leave to file a supplemental complaint (ECF No. 92) . The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to quash will be denied; the motion for protective order will be granted; the motions to seal will be granted; and Plaintiff will be ordered to supplement his motion for leave to file a supplemental complaint with his proposed supplemental complaint.

         I. Background

         Plaintiff is an inmate currently incarcerated at North Branch Correctional Institution ("North Branch") in Cumberland, Maryland.[1] He filed a civil rights complaint under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs in violation of the Eighth Amendment and unlawful retaliation under the First Amendment. Plaintiff seeks money damages from Defendant Wexford Health Services, Inc. ("Wexford"), a private medical corporation contracted to provide medical treatment to inmates of Maryland correctional institutions, and the individual Defendants, who are medical professionals. (ECF Nos. 1; 45). Plaintiff alleges that he was denied appropriate treatment for knee pain and instability caused by an anterior cruciate ligament tear and for keloids. (ECF No. 45 ¶¶ 20-22) . In his amended complaint, Plaintiff identified March 6, 2013, through March 8, 2014, as the "relevant timeframe" for his allegations, all of which occurred during his incarceration at North Branch. (Id. ¶¶ 7, 27) . Plaintiff did not allege an ongoing denial of medical treatment or seek injunctive relief. The scheduling order deadline for the joinder of additional parties and amendment of pleadings was August 31, 2015 (ECF No. 43), and Plaintiff filed the amended complaint on that date (ECF No. 45) . Discovery deadlines have been postponed several times at the parties' request (see ECF Nos. 54; 63; 76; 82; 102), but fact and expert discovery will now close on November 14, 2016, and the dispositive pretrial motions deadline is January 27, 2017 (ECF No. 102) .

         On June 15, 2016, Plaintiff filed a motion to quash Defendants' subpoena seeking the settlement agreement in Phillips v. Murray, et al., No. DKC-11-0302 (D.Md.), from Corizon Health, Inc. ("Corizon") .[2] (ECF No. 79) . Defendants responded in opposition (ECF No. 84), and Plaintiff filed a reply (ECF No. 89). On July 15, Defendants moved for a protective order permitting them to produce Plaintiff's psychological evaluations, which are included in his requested medical records, as designated for "attorney's eyes only." (ECF No. 85) . Defendants have also moved to seal those records, which were attached as an exhibit to their motion. (ECF No. 86). Plaintiff filed a response in opposition to the motion for protective order and also filed a motion to seal an exhibit to his response (ECF Nos. 90; 91), and Defendants replied (ECF No. 94) . Finally, Plaintiff filed a motion for leave to file a supplemental complaint. (ECF No. 92) . Defendants opposed this motion (ECF No. 96), and Plaintiff replied (ECF No. 101).

         II. Motion to Quash

         Plaintiff has moved to quash Defendants' subpoena, or subpoenas, to Corizon for a copy of the confidential settlement agreement in Phillips, No. DKC 11-0302.[3] The subpoenas were issued on June 9, 2016, and served by certified mail. (ECF Nos. 84-7; 84-8). Defendants' counsel served copies upon Plaintiff's counsel by first-class mail, also on June 9. (ECF Nos. 84-7; 84-8) . Plaintiff moved to quash on June 15, stating that his motion "is based on Federal Rule of Civil Procedure 45(a) (4), 45(d)(3), Federal Rules of Evidence 401 and 408." (ECF No. 79). He argues in reply that the subpoena seeks irrelevant information outside the scope of discovery under Fed.R.Civ.P. 26(b)(1). (ECF No. 89, at 1-3).[4] Plaintiff also argues that the subpoena should be quashed because Defendants did not serve a copy on Plaintiff before serving Corizon, as required by Fed.R.Civ.P. 45(a)(4). (Id. at 3-5). Defendants argue that relevant confidential agreements are discoverable in the Fourth Circuit, and that "the agreement may impact both Phillips' claims and the Healthcare Provider Defendants' defenses in the instant lawsuit. If, for example, Phillips agreed to waive any future claims that he may have relating to his alleged knee and keloid conditions, then his claims in the instant lawsuit may be barred." (ECF No. 84, at 4). Corizon did not move to quash the subpoenas, and it is unclear whether Corizon received actual notice of or complied with the subpoenas.[5]

         "[T]he scope of discovery allowed under a subpoena is the same as the scope of discovery allowed under Rule 26. Thus, regardless of whether the Court considers Plaintiff's Motion under Rule 45 or Rule 26, the Court must review Defendant's subpoenas under the relevancy standards set forth in Rule 26(b) ." Singletary v. Sterling Transport Co., Inc., 289 F.R.D. 237, 240-41 (E.D.Va. 2012) (citations omitted) (citing Cook v. Howard, 484 F.App'x 805, 812 (4th Cir. 2012) (per curiam)). Pursuant to Fed.R.Civ.P. 26(b)(1):

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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         A subpoena which "requires disclosure of privileged or other protected matter, " however, must be quashed or modified. Fed.R.Civ.P. 45(d) (3) (iii) . The document subpoenaed here is a confidential settlement agreement, but "the Fourth Circuit, like the majority of courts, has declined to recognize a federal settlement privilege, and courts in this district have declined to apply a settlement privilege in discovery disputes." Nat'l Union Fire Ins. Co. of Pittsburgh, . Pa. v. Porter Hayden Co., No. CCB-03-3408, 2012 WL 628493, at *3 (D.Md. Feb. 24, 2012) .

         The Phillips v. Murray settlement agreement is not privileged and is relevant under the standard of Fed.R.Civ.P. 26(b) (1), and accordingly, it is discoverable.[6] The claims Plaintiff brings here are nearly identical to the claims he brought in Phillips; they relate to the treatment of the same underlying medical conditions, at the same correctional institution, by some of the same medical professionals.[7] The constitutional violations alleged here date from March 6, 2013, just two days after the filing of Plaintiff's stipulation of dismissal as to Corizon in Phillips. Moreover, although Plaintiff argues that "Defendants seek here to discover a settlement agreement from a prior and distinct action" (ECF No. 89, at 2), Plaintiff himself has acknowledged the relevance of the previous case to his claims and Defendants' defenses. In the same interrogatory responses in which he objected to producing the settlement agreement (ECF No. 84-4, at 35-36), he also responded that "Defendants were long aware of these [medical treatment] needs, particularly given the prior lawsuit against some of them for similar conduct in Phillips v. Murray" (id. at 27; see also Id. at 3 ("Defendant [Ottey] should have been aware of Plaintiff's knee injury and facial keloids beginning in February 2009. . . . These injuries were the subject of a prior lawsuit against Defendant Dr. Ottey and others, which was settled before trial. See Phillips v. Murrayl.]")). Plaintiff also detailed his medical complaints between 2008 and 2014 in these responses, necessarily including those that were at issue in the previous suit. (Id. at 3-24) . The settlement agreement is relevant under the liberal standard of Fed.R.Civ.P. 26(b)(1) and is discoverable.

         Plaintiff also moves to quash the subpoena on the alternative ground that Defendants did not provide him with prior notice of the non-party subpoenas. (ECF No. 89, at 3-5) . Defendants served a copy of the subpoenas on Plaintiff's counsel by mail the same day they served the subpoenas on the third parties by mail. Plaintiff argues that the plain text of Fed.R.Civ.P. 45 requires notice to the parties of a non-party document subpoena "before it is served on the person to whom it is directed, " Fed.R.Civ.P. 45(a)(4) (emphasis added), and that failure to comply warrants quashing the subpoena.

         Rule 45 does require notice to other parties before a subpoena commanding the production of documents is served on a nonparty. Id. The "original purpose" of this notice requirement is to "enable [e] the other parties to object or to serve a subpoena for additional materials." Fed.R.Civ.P. 45 advisory committee's note to 2013 amendment; see also Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 380 (D.Md. 1999) ("When a party fails to receive prior notice of the information sought from a non-party, a party is deprived of its greatest safeguard under the Rule, that is, the ability to object to the release of the information prior to disclosure.").

Upon a finding that notice was not given, "courts can either strike the subpoenas or allow the affected parties the opportunity to object." PaganColon v. Walgreens of San Patricio, Inc., 264 F.R.D. 25, 28 (D.P.R. 2010); see also Biocore Medical Technologies, Inc. v. Khosrowshahi, 181 F.R.D. 660, 668 (D.Kan. 1998) . "Delayed service alone, however, is not a basis to quash a subpoena. The objecting party must also demonstrate prejudice." Malinowski v. Wall Street Source, Inc., No. 09 Civ. 9592 (JGK) (JLC), 2010 WL 4967474, at *2 (S.D.N.Y. Nov. 23, 2010).

Mayor & City Council of Baltimore v. Unisys Corp., No. JKB-12- 614, 2013 WL 6147780, at *3 (D.Md. Nov. 21, 2013) (denying motion to quash where opposing party did not learn of non-party subpoena until three months after service because party suffered no prejudice); cf. Potomac Elec. Power Co., 190 F.R.D. at 381-82 (ordering plaintiff to produce subpoenaed non-party documents to defendants and advise them of any intended use to alleviate prejudice, but denying motion for protective order to preclude use where non-party subpoenas had been issued without prior notice to defendants and at the close of discovery).

         Plaintiff arguably received concurrent notice of the subpoena rather than the prior notice required. Assuming arguendo that this service violated Fed.R.Civ.P. 45(a) (4), the violation does not warrant quashing the subpoenas as Plaintiff cannot show prejudice. Plaintiff received notice of the subpoena from Defendants, and accordingly, he was able promptly to file this motion to quash prior to the production of any documents. The "original purpose of enabling the other parties to object" has therefore been satisfied. Fed.R.Civ.P. 45 advisory committee's note to 2013 amendment. Moreover, as Plaintiff was a party to the agreement sought from Corizon, he already had access to the discovery sought. Plaintiff received notice of the subpoena, had an opportunity to object, and had access to the subpoenaed material. He accordingly has not shown prejudice from concurrent notice of the document subpoena, and the subpoenas will not be quashed on this ground.

         The settlement agreement is relevant and not privileged. There has been no showing of burden or expense related to this discovery, but Corizon presumably has a copy of the agreement in its possession as a party to it, and the burden of production should be minimal. If Defendants' notice was a violation of Fed.R.Civ.P. 45(a) (4), the ...

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