United States District Court, D. New Mexico
LYDELL MARVIN BEGAY, MARTIN “MARTY” BEGAY, and LORENE BEGAY, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
Margaret Moses Branch Branch Law Firm Albuquerque, New Mexico
and Seth T. Cohen Cynthia Zedalis Cohen & Zedalis LLP
Santa Fe, New Mexico Attorneys for the Plaintiffs
A. Tierney Acting United States Attorney Erin Langenwalter
Christopher F. Jeu Assistant United States Attorneys United
States Attorney's Office Albuquerque, New Mexico
Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Motion to Quash
Plaintiffs' Subpoena, filed March 30, 2017 (Doc.
110)(“Motion”). The Court held a hearing on May
8, 2017. The primary issue is whether the Plaintiffs'
subpoena of Lance Leider, an attorney who represented Doctor
Annicol Marrocco during a Drug Enforcement Agency
(“DEA”) investigation, seeks records that
Marrocco's attorney-client privilege protects from
disclosure. The Court concludes that the Plaintiffs'
subpoena seeks “nonprivileged matter that is relevant
to [the Plaintiffs' claims] and proportional to the needs
of the case, ” so it denies the Motion. Fed.R.Civ.P.
March 2014, Plaintiff Lydell Marvin Begay visited the
emergency room at the Northern Navajo Medical Center in
Shiprock, New Mexico. See Complaint for Damages
¶ 2, at 1-2, filed April 28, 2015 (Doc.
1)(“Complaint”). According to the Plaintiffs,
“[a]s a result of Defendant's negligent medical
care, misdiagnosis and failure to adequately credential,
staff, or supervise the emergency room at NNMC, Lydell Begay
suffered catastrophic and permanent injuries, injuries that
have all but taken this young man's life away.”
Complaint ¶ 4, at 2. Also according to the Plaintiffs,
“the physician who treated Lydell Begay, Annicol
Marrocco, M.D., was acting under restricted medical licenses
and required close supervision, ” but “NNMC
provided no such supervision.” Complaint ¶ 3, at
2. The Plaintiffs assert that, when Marrocco treated Begay,
“she was not licensed to practice medicine in the State
of New Mexico and instead was acting under restricted
licenses issued by the States of Florida, New York, and
Pennsylvania, ” and has “been censured and fined
by the New York and Pennsylvania Medical Boards.”
Complaint ¶¶ 18, 20, at 5-6.
April 27, 2015, the Plaintiffs filed their Complaint.
See Complaint at 13. The Complaint does not name
Marrocco as a Defendant. It instead -- pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2672,
(“FTCA”) -- names only Defendant United States of
America. See Complaint ¶ 6, at 3.
filed the Motion on March 30, 2017. See Motion at 3.
According to Marrocco, “Leiter, an attorney practicing
in Orlando, Florida, was Dr. Marrocco's personal attorney
whom she retained to represent her when the DEA initiated an
investigation into her history of prescription writing in May
of 2013, ” and, also according to Marrocco,
“[f]ollowing a hearing, the DEA concluded its
investigation into Dr. Marrocco on May 4, 2015.” Motion
¶ 2, at 1-2. Marrocco asserts, “[u]pon information
and belief, ” that the Plaintiffs' subpoena to
Leiter “seeks all documents and correspondence relating
to” those proceedings, and adds that “[a] copy of
the Subpoena is not attached because a copy of the subpoena
was not forwarded to Dr. Marrocco's counsel.”
Motion ¶ 2, at 1-2. Marrocco argues that her
attorney-client privilege protects the contents of
Leiter's file regarding her case and, to the extent that
the file contains non-privileged material, “those
records are a matter of public record equally available to
plaintiffs.” Motion ¶ 4, at 2-3. Marrocco also
argues that the subpoena subjects Leiter to an undue burden.
See Motion ¶¶ 5-7, at 3-4. Marrocco
concludes that, because “a subpoena shall be quashed or
modified if it requires disclosure of privileged or other
protected matter, ” and because “a subpoena
must be quashed if it subjects a person, especially
a non-party, to undue burden, ” the Court should quash
the Plaintiffs' subpoena. Motion ¶¶ 3, 5, at
2-3 (emphasis the original)(citing Fed.R.Civ.P. 45(d)(3)(A)).
Plaintiffs argue, first, that Marrocco spells her own
lawyer's name incorrectly. See Plaintiffs'
Response to Motion to Quash Plaintiffs' Subpoena at 1
n.1, filed April 12, 2017 (Doc.
113)(“Response”)(“Mr. Leider's name is
correctly spelled in the subject subpoena. See
www.thehealthlawfirm.com.”). More importantly, the
Plaintiffs argue that their subpoena does not request Leider
to produce privileged documents, because their subpoena
requests only the “non-privileged documents in Mr.
Leider's possession relating to proceedings before the
[DEA] concerning Dr. Marrocco.” Reponse at 1. The
Plaintiffs contend that they “are entitled to fully
explore the extent, nature and type of evidence and testimony
submitted on Dr. Marrocco's behalf to the DEA, ”
because “[s]uch information either was known or should
have been known to the Northern Navajo Medical Center . . .
when they granted full, active medical privileges to Dr.
Marrocco before she treated Plaintiff Lydell Begay.”
Response at 2. The Plaintiffs contend that “this
information is not publicly or otherwise available, ”
and that they “have attempted to obtain the same
information covered by the subpoena from Dr. Marrocco
herself, but to no avail.” Response at 2. The
Plaintiffs further contend that, “the subpoena is
limited as to time (i.e., 2013-2015), thereby
avoiding the imposition of any undue burden on Mr.
Leider.” It follows, according to the Plaintiffs, that
the Court should deny the Motion. Response at 5.
admits that the Plaintiffs' subpoena asks for only
documents that are not privileged, and she explains that she
did not possess a copy of the subpoena when she drafted the
Motion, which “object[s], upon information and belief,
that the Subpoena likely sought privileged
communications.” Reply in Support of Motion to Quash
Plaintiffs' Subpoena at 1, filed April 27, 2017 (Doc.
115)(“Reply”). Marrocco argues that complying
with the subpoena would require both Leider and Marrocco to
“be involved in the potentially burdensome and time
consuming process of reviewing all communications in
the file to determine those that are privileged, ” and
notes that “there are likely to be references to the
third-party patient whose care was at issue [in the DEA
proceeding, ] and such references would have to be carefully
redacted to ensure that his privacy and confidential health
information were protected.” Reply at 2. Marrocco also
argues that the subpoena is overbroad insofar as “[t]he
medical treatment at issue [in this case] took place in March
2014, ” while the subpoena “seeks records through
May 2015.” Reply at 2. Finally, Marrocco argues:
[A]ny information in Mr. Leider's file that pre-dates
March 2014 is only relevant if NNMC should have, in the
exercise of reasonable diligence, obtained that information.
Plaintiffs, however, provide no evidence or testimony that
would suggest NNMC could have accessed Mr. Leider's file,
at any time, to discover the information that Plaintiffs now
at 3. Marrocco accordingly concludes that the Court should
either quash the Plaintiffs' subpoena to Leider or,
alternatively, “conduct an in camera review of any
documents.” Reply at 3.
Court held a hearing on May 8, 2017, and lawyers appeared for
“the Begays, ” Tr. at 2:7-8 (Zedalis), for the
United States, see Tr. at 2:12-13 (Jeu), and for
Marrocco, see Tr. at 2:16-17 (Schofield). The Court
began the hearing by articulating its initial impression:
Well, I'll certainly hear what anybody wants to say on
this, but I guess my thoughts are, that unless I don't
understand the circumstances it looks like it's a valid
subpoena to Lance Lieder. There are some documents that are
in his file that would be relevant to this case that would
not be privileged. It seems to me that it's not his
entire office's file. It's just this file involving
Mr. Lieder doing work for Dr. Marrocco, and it seems to me
probably the material that's going to fall within the
scope of the subpoena is rather than [segregated].
There still may be some materials that are privileged. But
from it seems like a privilege log would be appropriate. It
seems to me it's narrow so I guess I'm inclined not
to the grant the motion to quash, but require the plaintiff
or require the Mr. Lieder to prepare some privilege log.
I'll leave it to Dr. Marrocco and Mr. Lieder to figure
out who is going to pay for that. But it doesn't seem to
me that it's probably a big burden to produce what the
plaintiffs are requesting. So those are my thoughts.
Tr. at 2:20-3:15 (Court). Marrocco noted that, in addition to
privileged material, “throughout the file there is also
reference to the patient who was at issue, ” and asked
for permission to redact the patient's name. Tr. at
3:25-4:3 (Schofield). The Plaintiffs indicated that they did
not object to such a redaction. See Tr. at 4:4-6
(Court, Zedalis). Marrocco then noted that, “after the
briefing was completed, ” she spoke to Lieder regarding
her file, and, “[a]lthough they're stored
electronically, so it's a little hard to gauge, he
estimated it to be about two banker's boxes full of
documents.” Tr. at 4:8-14 (Schofield).
then raised two additional issues. See Tr. at
4:14-5:10, 6:4-11 (Court, Schofield). First, Marrocco asked
the Court to order the Plaintiffs to pay for the costs
associated with reviewing Leider's file, because
“Dr. Marrocco is not a party to this, but simply a
witness.” Tr. at 4:14-20 (Schofield). Second, Marrocco
argued that “anything that was after the treatment of
Mr. Begay, which is from March 2014 going forward, ” is
not relevant to the Plaintiffs' case, because it is
“information Northern Navajo could not have obtained,
because it happened after the treatment in question.”
Tr. at 6:4-11 (Schofield). The United States agreed on the
latter point. See Tr. at 6:21-23 (Jeu)(“I
agree that the time period after March 2014 is really
irrelevant to what's going on here.”).
Plaintiffs then indicated that “[w]e're not going
to agree to cut off the time to 2015, ” because
“the DEA order that came down . . . in May of 2015 . .
. reflects [Marrocco's] testimony and documents that
predate her evaluation of Mr. Begay in March 2014, ”
so, according to the Plaintiffs, “there may very well
be documents relevant to the time period in question that are
reflected in post 2015 correspondence, affidavits, reports,
whatever that is in the DEA file.” Tr. at 7:10-8:6
(Zedalis). As to shifting the costs associated with producing
Leider's file, the Plaintiffs argued that, absent Court
intervention, “insurance is paying for all these”
costs, and that the Court should not shift those costs to the
[t]he Begays are a family of limited means. They don't
have running water. They live in Fruitland, New Mexico on a
plot of land that Ms. Begay inherited from her family. They
don't have a structure on their property. To ask them to
pay for the attorneys' fees . . . is just, it's I
think it's uncalled for, Your Honor . . . .
Tr. at 8:20-9:4 (Zedalis).
Well, I do think that it's hard to come up with any sort
of deadlines. I mean, I agree [with the Plaintiffs] that
sometimes documents that may come in or exist after March
2014 may show events before that, so I think it's hard to
come up with a deadline that's very useful that's
going to keep Dr. Marrocco and Mr. Lieder from looking at
every document. So they might as well be produced. So I'm
not going to set any deadline. I'm not going to shift
costs here. This seems to be just a manageable amount of
discovery. Dr. Marrocco may end up having to pay for it. But
given her involvement in this case, it seems to me that the
costs shouldn't be shifted.
Tr. at 9:13-25 (Court).
governs discovery requests for tangible objects and states:
may serve on any other party a request within the scope of
(1) to produce and permit the requesting
party or its representative to inspect, copy, test, or sample
the following items in the responding party's possession,
custody, or control:
(A) any designated documents or
electronically stored information -- including writings,
drawings, graphs, charts, photographs, sound recordings,
images, and other data or data compilations -- stored in any
medium from which information can be obtained either directly
or, if necessary, after translation by the responding party
into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or
other property possessed or controlled by the responding
party, so that the requesting party may inspect, measure,
survey, photograph, test, or sample the property or ...