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Collins v. Progressive Michigan Insurance Co.

United States District Court, E.D. Michigan, Southern Division

March 30, 2017

LORI COLLINS, a/k/a LORI BROWN-SNYDER, as guardian of BRITTNEY SNYDER, a protected person, Plaintiff,
v.
PROGRESSIVE MICHIGAN INSURANCE COMPANY Defendant.

          ARTHUR J. TARNOW, DISTRICT JUDGE

          ORDER DENYING PLAINTIFF'S MOTION TO QUASH SUBPOENA #2 DIRECTED TO OWEN PERLMAN, M.D. AND/OR FOR PROTECTIVE ORDER [27]

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court Plaintiff's Motion to Quash Subpoena #2 Directed to Owen Perlman, M.D. and/or for Protective Order Based on Fed.R.Civ.P. 26, 30 and 45. (Docket no. 27.)[1] Defendant Progressive Michigan Insurance Company filed a Response. (Docket no. 29.) The parties have also filed a Joint Statement of Resolved/Unresolved Issues Regarding Plaintiff's Motion. (Docket no. 45.) The Motion was referred to the undersigned for consideration. (Docket no. 31.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. BACKGROUND

         This is an action for no-fault auto insurance benefits. Brittney Snyder[2] sustained serious injuries following an accident on February 26, 2006. Plaintiff contends that Defendant has unreasonably refused to pay or delayed making payments for “reasonably necessary products, services and accommodations, for her care, recovery or rehabilitation, ” including “rent for accessible housing, modifications to accessible housing, guardian services, attendant care, and medical care, ” in violation of the Michigan No-Fault Insurance Act, M.C.L. §§ 500.3142 & .3148. (Docket no. 1 at 3.) Defendant originally sued in Plaintiff in state court in Lenawee County, seeking a declaratory judgment regarding its obligation to pay for certain of Brittney's expenses. According to Plaintiff, in 2014, the parties agreed to dismiss the state court case and to allow Plaintiff to refile in federal court, which led to the filing of the instant case. (Docket no. 27 at 10-12.)

         Dr. Owen Perlman, M.D., has been and continues to be Ms. Snyder's “principal treating physician.” (Docket no. 27 at 2.) Dr. Perlman is “board-certified in physical medicine and rehabilitation.” (Id.) Defendant first served a subpoena to Dr. Perlman in this federal court case on August 4, 2016, which scheduled his deposition for September 21, at 10:00 a.m.[3] Dr. Perlman was not available at that time, however, and returned the subpoena unexecuted for the stated reason that it “subjected [him] to undue burden.” (Docket no. 17 at 11.) In response, Defendant filed a Motion to Show Cause (docket no. 17), and Plaintiff filed her first Motion to Quash the Dr. Perlman subpoena. (Docket no. 18.) On September 28, however, Defendant issued a new subpoena to Dr. Perlman, and both parties withdrew their pending motions pertaining to the first Perlman subpoena. (Docket nos. 23, 26.) This second subpoena required that Dr. Perlman appear for a deposition on October 17, 2016, at 5:00 p.m., at his office. (Docket no. 27-16.)

         On October 17, Plaintiff filed the instant Motion to Quash. (Docket no. 27.) Plaintiff argues that Defendant's second subpoena should be quashed because it failed to state the method of recording in violation of Federal Rule of Civil Procedure 45(a)(1)(B), and because Defendant included a check for $15, which fails to meet the minimum fee set forth in 28 U.S.C. § 1821 and Federal Rule of Civil Procedure 45(b). Plaintiff also argues that because Dr. Perlman was deposed twice in the state court case, this would be Dr. Perlman's third deposition “in the case, ” such that Defendant was required to seek leave of court before issuing the subpoena pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(ii). Finally, Plaintiff argues that because the subpoena “may require him to cancel multiple patient appointments, ” it should be quashed because it poses an undue burden in violation of Federal Rule of Civil Procedure 45(d). (Docket no. 27 at 17.) As an alternative to quashing, Plaintiff requests a protective order “delineating the scope of Dr. Perlman's third deposition and establishing an expert witness fee.” (Docket no. 27 at 4.)

         In response to Plaintiff's Motion to Quash, Defendant issued a new subpoena to Plaintiff on October 20, 2016, which provides that the deposition would be recorded by “stenographic means by court reporter.” (Docket no. 29-4.) Defendant also included a check for $40, the minimum amount required by 28 U.S.C. § 1821. This subpoena scheduled Dr. Perlman's deposition for November 7, 2016, at 5:00 p.m., at Dr. Perlman's office. (Docket no. 29-4 at 3.)

         In their Joint Statement of Resolved/Unresolved Issues (docket no. 45), the parties indicate that they still disagree over whether Federal Rule of Civil Procedure 30(a)(2)(A)(ii) requires Defendant to seek leave of court before deposing Dr. Perlman in this case because he was deposed twice in the state court case. Defendant also argues that Dr. Perlman is not entitled to an expert witness fee for his deposition.[4]

         II. GOVERNING LAW & ANALYSIS

         Federal Rule of Civil Procedure 45 governs subpoenas and provides that the court must, upon motion, quash or modify a subpoena if the subpoena fails to allow a reasonable time to comply, requires a non-party to travel more than 100 miles, requires disclosure of privileged or protected materials, or subjects a person to undue burden. Fed.R.Civ.P. 45(d)(3)(A). Rule 26(b) defines the scope of discovery for a subpoena issued pursuant to Rule 45, and “allows a party to obtain discovery concerning any non-privileged matter that is relevant to any party's claim or defense.” Systems Prods. & Solutions, Inc. v. Scramlin, No. 13-CV-14947, 2014 WL 3894385, at *9 (E.D. Mich. Aug. 8, 2014). Rule 26(c) also allows the court to issue protective orders for good cause shown to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). The party seeking a protective order has the burden of showing that good cause exists for the order. Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001). To show good cause, the movant must articulate specific facts showing “clearly defined and serious injury resulting from the discovery sought and cannot rely on mere conclusory statements.” Id. (citations and internal quotation marks omitted).

         For the reasons stated below, the Court finds Plaintiff is not entitled to an order quashing Defendant's subpoena to Dr. Perlman, and has not shown good cause to justify the issuance of a protective order limiting the scope of Dr. Perlman's deposition or requiring Defendant to pay Dr. Perlman $700/hour, or any expert fee, for the deposition.

         First, Defendant was not required by Rule 30(a)(2)(A)(ii) to seek leave from the Court before attempting to depose Dr. Perlman, because, while he may have been deposed in the state court case, he has not been deposed in this case. Fed.R.Civ.P. 30(a)(2)(A)(ii) (party must obtain leave of court “if the parties have not stipulated to the deposition and: . . . the deponent has already been deposed in the case.” (emphasis added)). There is no indication that the parties agreed to limit discovery in this case when they agreed to allow Plaintiff to voluntarily dismiss her state court case and refile in federal court. Moreover, Dr. Perlman's state court depositions took place well over two years ago, and Dr. Perlman apparently continues to treat Ms. Snyder. Ms. Snyder's complaint is also not limited to damages incurred prior to the depositions taken of Dr. Perlman in the state court case. (See docket no. 1 at 3.)

         Second, Plaintiff has not complied with Federal Rule of Civil Procedure 26(a)(2) regarding the disclosure of Dr. Perlman ...


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