United States District Court, E.D. Michigan, Southern Division
LORI COLLINS, a/k/a LORI BROWN-SNYDER, as guardian of BRITTNEY SNYDER, a protected person, Plaintiff,
PROGRESSIVE MICHIGAN INSURANCE COMPANY Defendant.
J. TARNOW, DISTRICT JUDGE
ORDER DENYING PLAINTIFF'S MOTION TO QUASH
SUBPOENA #2 DIRECTED TO OWEN PERLMAN, M.D. AND/OR FOR
PROTECTIVE ORDER 
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE
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.) 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).
an action for no-fault auto insurance benefits. Brittney
Snyder 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.)
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
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.)
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.)
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.)
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
GOVERNING LAW & ANALYSIS
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).
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.
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
Plaintiff has not complied with Federal Rule of Civil
Procedure 26(a)(2) regarding the disclosure of Dr. Perlman ...