United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUDGE.
the Court is Defendants Marmaxx Operating Corp.; Marmaxx
Operating Corp. d/b/a Marshall's; Marmaxx Operating
Corp., d/b/a The TJX Companies, Inc.; Marmaxx Operating Corp.
d/b/a Marshall's of El Paso-Sunland, TX, Inc.; The TJX
Companies, Inc.; The TJX Companies, Inc., d/b/a
Marshall's; Marshall's; and Marshall's of El
Paso-Sunland, TX's (collectively, "Defendants")
"Motion for Entry of Protective Order Regarding Subpoena
Deces Tecum Issued to Dr. Stuart Weil" (ECF No. 56)
("Motion") filed on March 14, 2017. Therein,
pursuant to Federal Rule of Civil Procedure
("Rule") 26, Defendants seek protection from a
subpoena duces tecum that Plaintiff Trudy
D'Souza ("Plaintiff') served, pursuant Rule 45,
upon Defendants' expert witness Dr. Stuart Weil, M.D., P.
A. On March 15, Plaintiff filed a "Response to
Defendants' Objections and Responses to Plaintiffs Second
Amended Notice of Intent to Take Oral Deposition of Dr.
Stuart Weil with Subpoena Duces Tecum" (ECF No. 60)
("Response") and a "Response to
Defendants' Motion for Entry of Protective Order
Regarding Subpoena Duces Tecum Issued to Dr. Stuart
Weil" (ECF No. 61) ("Supplemental Response").
For the reasons that follow, the Court GRANTS IN PART and
DENIES IN PART Defendants' Motion.
a premises liability case: Plaintiff alleges that in October
2013, she fell at a Marshall's store located in El Paso,
Texas, and suffered injuries to her back, hip, knee, and
other parts of her body. On September 20, 2016, Defendants
designated Dr. Weil as a testifying expert and produced his
expert report. On February 15, 2017, Defendants noticed the
deposition of Dr. Weil for March 20, 2017, and the next day,
Plaintiff too noticed the deposition of Dr. Weil for the same
day. On March 9, Plaintiff served Dr. Weil with the subpoena
duces tecum, the subject of the instant Motion. In
the subpoena, Plaintiff issued twelve Requests for
information and documents to Dr. Weil and instructed him to
produce them by March 15-four days ahead of the scheduled
deposition. On March 14, Defendants filed the instant Motion,
and Plaintiff followed by filing a motion to quash Dr.
Weil's deposition and for a protective order (ECF No.
58). On March 16, the Court instructed the parties not to go
forward with Dr. Weil's deposition until it has an
opportunity to address their discovery disputes. Order, ECF
No. 62. The Court now addresses them.
Scope of Discovery
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
Fed. R. Civ. P. 26(b)(1).
the scope of discovery is broad, "its processes must be
kept within workable bounds on a proper and logical basis for
the determination of the relevancy of that which is sought to
be discovered." Jones v. Metzger Dairies, Inc.,
334 F.2d 919, 925 (5th Cir. 1964). "When the discovery
appears relevant the burden is on the party objecting to show
that the discovery is not relevant. When relevancy is not
apparent, however, it is the burden of the party seeking
discovery to show the relevancy of the discovery
request." Cuthbertson v. Excel Indus., Inc.,
179 F.R.D. 599, 603 (D. Kan. 1998) (brackets, internal
quotation marks, and citations omitted).
scope of discovery is within the sound discretion of the
trial judge, see Freeman v. United States, 556 F.3d
326, 341 (5th Cir. 2009), who may "tailor discovery
narrowly and ... dictate the sequence of discovery, "
Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
However, the Court must limit discovery, if it determines, on
motion or on its own, that "the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive" or "the proposed
discovery is outside the scope permitted by Rule
26(b)(1)." Fed.R.Civ.P. 26(b)(2)(C). Rule 26(b),
although broad, may not be used "as a license to engage
in an unwieldy, burdensome, and speculative fishing
expedition." Murphy v. Deloitte & louche Grp.
Ins. Plan, 619 F.3d 1151, 1163 (5th Cir. 2010).
26's Provisions Governing Expert Discovery
26(a)(2)(A) requires a party to disclose to the other party
"the identity of any witness it may use at trial to
present evidence under Federal Rule of Evidence 702, 703, or
705." Fed.R.Civ.P. 26(a)(2)(A). Rule 26(a)(2)(B) provides
that expert witnesses generally must provide an expert report
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them; (ii) the
facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support
them; (iv) the witness's qualifications, including a list
of all publications authored in the previous 10 years; (v) a
list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and (vi) a statement of the compensation to be
paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B).
26(b)(4)(A) authorizes routine depositions of testifying
experts, which "may be conducted only after the report
is provided." Fed.R.Civ.P. 26(b)(4)(A). Rule 26(b)(4)(C)
extends work product protection to any communications between
a party's attorney and its expert witness, except to the
extent that they fall within three exceptions: they (i)
relate to compensation for the expert's study or
testimony, (ii) identify facts or data that the attorney
provided and that the expert considered in forming the
opinions to be expressed, or (iii) identify assumptions that
the attorney provided and that the expert relied upon in
forming those opinions, the rule does not provide
work-product protection. Fed.R.Civ.P. 26(b)(4)(C)(i)-(iii).
Subpoenas Duces Tecum
governs discovery from nonparties through the issuance of
subpoenas. A subpoena may command a nonparty to "produce
designated documents, electronically stored information, or
tangible things in that person's possession, custody, or
control, " Fed.R.Civ.P. 45(a)(1)(A)(iii), and command
their "production... at a place within 100 miles of
where the person resides, is employed, or regularly transacts
business in person, " Fed.R.Civ.P. 45(c)(2)(A).
any other forms of discovery, the scope of discovery through
a Rule 45 subpoena is governed by Rule 26(b). See, e.g.,
Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437
CFD, 2007 WL 2786421, at *1 (D. Conn. Sept. 25, 2007)
(citing, inter alia, Fed. R. Civ. P. 45 advisory
committee's notes to 1970 amendment (stating "the
scope of discovery through a subpoena is the same as that
applicable to Rule 34 and the other discovery rules")).
Thus, while "Rule 45 does not list irrelevance or
overbreadth as reasons for quashing a subpoena[, ]... the
[c]ourt must review... subpoenas duces tecum under the
relevancy standards set forth in Rule 26(b)."
HDSherer LLC v. Nat. Molecular Testing Corp., 292
F.R.D. 305, 308 (D.S.C. 2013). A court may find that a
subpoena presents an undue burden when the subpoena is
facially overbroad. Wiwa v. Royal Dutch Petroleum
Co., 392 F.3d 812, 818 (5th Cir. 2004).
26(c) governs protective orders and provides, in relevant
part: "A party or any person from whom discovery is
sought may move for a protective order in the court where the
action is pending.... The court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense."
Fed.R.Civ.P. 26(c). "Rule 26(c) confers broad discretion
on the trial court to decide when a protective order is
appropriate and what degree of protection is required."
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
(1984). Thus, the court may, inter alia,
"forbid the disclosure or discovery";
"limit the scope of disclosure or discovery to certain
matters"; "prescribe a discovery method other
than the one selected by the party seeking discovery";
and "specify... time and place or the allocation of
expenses, for the disclosure or discovery." Fed.R.Civ.P.
addressing Defendants' specific objections to Plaintiffs
Requests for information and documents, the Court turns to
certain preliminary issues raised by the parties'
The Scope of Expert Discovery
ask the Court to limit discovery from Dr. Weil to "only
the information and documents discoverable from an expert
witness under Fed.R.Civ.P. 26(a)(2)." Mot. at 7.
Likewise, Defendants object to multiple Requests on the
ground that Rule 26(a)(2), more specifically Rule
26(a)(2)(B), does not require Dr. Weil to provide the
requested information and/or documents. Kg, Id. at
4-5; see also Id. at 3 ("the subpoena...
requires Dr. Weil to produce documents that are... outside
the scope of expert discovery under Rule 26(a)(2)"). In
essence, Defendants argue that Rule 26(a)(2)(B) imposes an
upper limit on ...