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D'Souza v. Marmaxx Operating Corp.

United States District Court, W.D. Texas, El Paso Division

April 7, 2017

TRUDY D'SOUZA, Plaintiff,



         Before 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.


         This is 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.


         A. Scope of Discovery

         Under Rule 26(b),

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).

         Although 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).

         The 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).

         B. Rule 26's Provisions Governing Expert Discovery

         Rule 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).[1] Rule 26(a)(2)(B) provides that expert witnesses generally must provide an expert report that contains:

(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).

         Rule 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).

         C. Subpoenas Duces Tecum

         Rule 45 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).

         As with 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).

         D. Protective Orders

         Rule 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. 26(c).


         A. Preliminary Issues

         Before addressing Defendants' specific objections to Plaintiffs Requests for information and documents, the Court turns to certain preliminary issues raised by the parties' arguments.

         1. The Scope of Expert Discovery

         Defendants 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 ...

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