United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
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.
is an inmate currently incarcerated at North Branch
Correctional Institution ("North Branch") in
Cumberland, Maryland. 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) .
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") . (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
Motion to Quash
has moved to quash Defendants' subpoena, or subpoenas, to
Corizon for a copy of the confidential settlement agreement
in Phillips, No. DKC 11-0302. 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). 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.
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.
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)
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. 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. 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.
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
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
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
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.
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 ...