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Begay v. United Stated

United States District Court, D. New Mexico

January 23, 2018

LYDELL MARVIN BEGAY, MARTIN “MARTY” BEGAY, and LORENE BEGAY, Plaintiffs,
v.
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

          James 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

         THIS 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. 26(b)(1).

         FACTUAL BACKGROUND

         On 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.

         PROCEDURAL BACKGROUND

         On 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.

         1. The Motion.

         Marrocco 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)).

         2. The Response.

         The 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.

         3. The Reply.

         Marrocco 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 seek.

         Reply 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.

         4. The Hearing.

         The 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).

         Marrocco 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.”).

         The 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 Plaintiffs, because

[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).

         The Court concluded:

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).

         LAW REGARDING DISCOVERY

         Rule 34 governs discovery requests for tangible objects and states:

         A party may serve on any other party a request within the scope of Rule 26(b):

(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 ...

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