Plaintiff Justin T. Riley filed his Complaint on December 21, 2009, alleging negligence arising out of a motor vehicle accident between a commercial bus driven by Defendant Zavisin and Plaintiff’s motorcycle in Volusia County, Florida on Interstate 95 on August 3, 2009. Doc. 2. Defendants object to Plaintiff’s service of subpoenas to produce documents directed to: (1) Defendant Zavisin’s doctor, Frances Dumont, M.D., of Cincinnati, Ohio; (2) Verizon Cellco Partnership of Bedminster, New Jersey; and (3) Choicepoint Medical Review Services.[1]

Defendants also move to quash Plaintiff’s service of subpoenas for the production of documents from Defendants’ insurance carriers, New Hampshire Insurance Company and General Star Indemnity Company, which seek their “entire insurance file ... including the underwriting file” for the policies covering Defendants at the time of the accident. Defendants have already produced to the Plaintiff copies of the applicable insurance policies and declaration Sheets for the policies providing coverage for Defendants for the auto accident that is the subject of this suit. Doc. 45.

The subpoena to Dr. Dumont seeks Department of Transportation long forms and physicals, as well as “all medical records” for Defendant Zavisin. The subpoena to Choicepoint Medical Review Services seeks controlled substance test reports, medical records, and correspondence from an unlimited time period for Defendant Zavisin.

The subpoena to Verizon Cellco Partnership seeks “any and all cell phone records, including text messages to and from” the cell phone numbers for Defendant Roberts Brothers Coach Leasing Co., Inc.’s employees Eric Smith and James Zavisin for one month before and after the August 3, 2009 accident, from July 3, 2009 to September 3, 2009. Mr. Smith is a non-party who was driving a different Roberts Brothers bus on the same charter trip with Defendant Zavisin and drove to the scene right after the accident.

Standard of Review

*2 The scope of discovery under Rule 26(b) is broad: “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. Rule 26(b)(1); see, e.g., Hickman v. Taylor, 329 U.S. 495, 507-508 (1947); Farnsworth v. Procter and Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (the Federal Rules of Civil Procedure “strongly favor full discovery whenever possible”). Information can be relevant and therefore discoverable, even if not admissible at trial, so long as the information is reasonably calculated to lead to the discovery of admissible evidence. Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974). Discovery is not limited to the issues raised by the pleadings because “discovery itself is designed to help define and clarify the issues.” Id. at 352. However, under recent changes to Federal Rule of Civil Procedure 26, the scope of discovery is restricted to the claims or defenses of the parties, rather than merely the subject matter. See, e.g., Nathai v. Florida Detroit Diesel-Allison, Inc., Case No. 3:09-cv-1, 2009 WL 2424570, (M.D. Fla. Aug. 5, 2009) (applying new language in the Rules).

Rule 26(c) governs the issuance of protective orders and empowers courts upon a showing of “good cause,” to make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c). Among other limitations a court may place upon discovery, a court may require any or all of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court. FED. R. CIV. P. 26(c).

The burden for demonstrating “good cause” falls on the shoulders of the moving party. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001). In evaluating a movant’s submission of “good cause,” a court should balance the movant’s interest in preventing the discovery sought against the other party’s interest in seeking the discovery. Id. (citing Farnsworth v. Procter & Gamble, Co., 758 F.2d 1545, 1547 (11th Cir. 1985)). To make this determination, the court must “insist on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil v. Bernard, 452 U.S. 89, 102 n. 16 (1981)(citations omitted). Although a district court enjoys broad discretion in fashioning a protective order, the court must articulate its reasons for granting a protective order. In re Alexander Grant & Co. Litigation, 820 F.2d 352, 355, 357 (11th Cir. 1987). In diversity actions such as this one, state law governs the privileged nature of materials sought in discovery. See, e.g., In re Fink, 876 F.2d 84, 85 (11th Cir. 1989).

Federal Rule of Civil Procedure 45 governs the requirements for subpoenas on non-parties. Fed.R.Civ.P. 45. Under Rule 45(c), the Court “must quash or modify [a] subpoena if it ... requires disclosure of privileged or other protected matter and no exception or waiver applies, or [if it] subjects a person to undue burden.” FED.R.CIV.P. 45(c)(3)(A)(iii) and (iv). Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought. 9A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 2459.

Analysis

A. Zavisin’s Medical Records from Dr. Dumont and Choicepoint

*3 Defendant Zavisin seeks a protective order quashing the subpoena to Dr. Dumont that seeks all of Zavisin’s medical records in his possession including the DOT long form, intake sheets for DOT physicals, DOT forms, and “all medical records and physical examination reports.” Doc. 40 at 12. Dr. Dumont is a physician who signed three Medical Examiner’s Certificates certifying that Zavisin was fit to drive during the periods covered by the certificates. The subpoena to Choicepoint Medical Review Services seeks controlled substance test reports, medical records and correspondence from an unlimited time period for Defendant Zavisin. Zavisin also seeks a

Zavisin argues that his personal, private health-related information is protected by federal and state laws, as well as the Florida Constitution, and should not be produced to the Plaintiff because Zavisin has done nothing to place his health, physical condition, mental condition at issue. He argues that Plaintiff should not be permitted to conduct a fishing expedition into Zavisin’s health or medical conditions simply because he was the driver of a vehicle involved in a motor vehicle accident with Plaintiff. Doc. 40.

Plaintiff argues that the subpoena is calculated to lead to the discovery of relevant evidence, i.e., the medical records pertaining to Zavisin’s medical examinations conducted pursuant to federal safety regulations. Plaintiff also argues the records are relevant based on the deposition testimony of an eyewitness to the accident, Elliot Jones, concerning Zavisin’s behavior on the night of the accident. Jones testified that he moved his truck into the far left lane to give Zavisin room to change lanes and pass Plaintiff, however, when he looked in his mirror, he saw that Zavisin had not moved and suddenly sparks began to fly out from the front of the bus, and Zavisin continued to drive without slowing. Jones slowed down, pulled even with Zavisin, and gestured for him to pull over and Zavisin did not respond. To get Zavisin’s attention, Jones activated his horn and gestured again, and Zavisin responded, pulled over, and stopped on the side of the road. According to Jones, Zavisin exited the bus holding a cell phone and asked Jones, “Did I run over something back there?” Jones testified that there was significant damage to the front of the bus, including the area near the windshield and right under the steering wheel.

Based on Jones’ testimony, Plaintiff argues that Zavisin’s medical records are central to the case because Plaintiff has “good reason to believe” that Zavisin’s health contributed to the accident at issue in that, according to Jones, Zavisin failed to see Plaintiff’s motorcycle directly in front of his bus, failed to stop after hitting Plaintiff until Jones sounded his horn, and belatedly asked Jones if he had hit something. Plaintiff argues that Jones’ testimony gives rise to a “strong inference that Zavisin was ill, impaired, asleep or otherwise incapacitated.” Doc. 43. Plaintiff argues that because Dr. Dumont’s records are targeted at medical conditions that would be likely to interfere with Zavisin’s ability to safely operate a commercial motor vehicle, Dr. Dumont’s records are directly relevant to Plaintiff’s claims of negligence. Also, because Zavisin was operating a commercial vehicle at the time of the incident, Plaintiff argues that Zavisin’s physical qualifications and compliance with federal safety regulations to operate the commercial vehicle are at issue and Dr. Dumont’s records are relevant and calculated to lead to the discovery of relevant evidence.

Zavisin asserts his right to privacy, i.e., not to have his medical records discovered. A person’s medical records implicate the right to privacy guaranteed by the Florida constitution; court orders compelling discovery of personal medical records constitute state action that may impinge on the constitutional right to privacy. Barker v. Barker, 909 So.2d 333, 337 (Fla. 2d DCA 2005) (citing State v. Johnson, 814 So.2d 390, 393 (Fla. 2002).

*4 Article 1, section 23 of the Florida Constitution, entitled Right of Privacy, was intended to “protect the right to determine whether or not sensitive information about oneself will be disclosed to others.” Universal City Development v. Williams, 963 So.2d 351, 355 (Fla. App. 5DCA.2007) (citing Rasmussen v. South Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987)) (private information includes medical information). In Rasmussen, the Florida Supreme Court held that the constitutional right of privacy requires the trial court to balance the competing interests that would be implicated by either granting discovery or denying it. Thus, the privacy right must be balanced against legitimate state interests in order to protect the communications. Universal City, 963 So.2d at 355 (citing Rasmussen v. South Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla.1987)).

Plaintiff argues that he is entitled to Zavisin’s medical records associated with the certification provided by Dr. Dumont in compliance with 49 C.F.R. § 391.43, which requires that commercial drivers pass a physical examination and be medically certified before operating a commercial motor vehicle. 49 C.F.R. § 391.41. Under § 391.43, a medical examiner is required to certify that the driver does not have any physical, mental, or organic condition that might affect the driver’s ability to operate a commercial motor vehicle safely:

49 C.F.R. § 391.43.

After completing the prescribed examination, the medical examiner must complete a standardized form. A commercial motor vehicle driver must undergo a qualifying physical examination every 24 months, and the examiner is required to maintain records of the examination for three years. Id.

With respect to the general medical records, Plaintiff’s argument that there is a strong inference that Zavisin’s health contributed to the accident is simply speculation. Plaintiff has not identified any specific condition he contends was involved; has not shown Zavisin has the condition or was suffering from it at the time of the accident; and has not shown any likelihood that there is such a condition and Zavisin suffered from it at the time, that the condition actually contributed to the accident.

*5 Zavisin’s duty of reasonable care to avoid accidents exists independently of any medical conditions he may have. There is nothing about a motor vehicle accident that suggests that a medical condition, rather than inattention, distraction or other circumstance, contributed to the accident. Considered otherwise, every negligence case in which a driver hits another vehicle and allegedly has a delayed reaction could be construed to have a potential “medical” cause and subject the driver to having his medical records explored. The higher degree of privacy associated with general medical records should not be invaded on such speculative reasoning.

Having said that, courts have allowed the narrow discovery of a commercial driver’s records relating to the commercial driver’s license medical examination and certificate, finding these not to be protected by any privilege because the examination was not performed for diagnosis or treatment, but to comply with federal safety regulations. The district court in Cunningham v. Fleet-Car Lease, Inc., faced the exact situation before the Court here – an injured plaintiff suing a commercial truck driver and his employer following an accident sought the medical examinations and supporting records related to the driver’s certification examinations, and the driver objected. Case No. 4:08-cv-1572-DDN, 2009 WL 4030936 (E.D. Mo. Nov. 20, 2009). The court reasoned that the records were discoverable:

The underlying case on which the court in Cunningham relied, Jackson v. Wiersema Charter Serv., Inc., holds that because the medical examinations under § 391.41are required to meet federal regulations, they are not considered to be examinations for the purpose of prescription or treatment are not protected by a physician-patient privilege. See Jackson v. Wiersema Charter Serv., Inc., No. 4:08 CV 27 JCH, 2009 WL 1798389, at *1 (E.D. Mo. June 24, 2009).

To the extent Dr. Dumont’s records relate to the medical examinations of Zavisin performed pursuant to § 391.41, they are discoverable. To the extent controlled substance testing was performed pursuant to federal regulations governing commercial vehicles, they are also discoverable. 49 C.F.R. §§ 382.301-05. Plaintiff is willing to stipulate to a confidentiality order limiting the disclosure of any of Dr. Dumont’s records and the testing to the parties and their experts in case to protect Zavisin’s interest in maintaining the confidentiality of the records at issue and is directed to do so. Doc. 43. To the extent Zavisin may have consulted Dr. Dumont for medical diagnosis or treatment other than the certification examination (which the Motion to Quash does not say), the Court will allow the medical records to be produced to Zavisin’s counsel for inspection prior to their delivery to Plaintiff[2] and to allow renewal of the Motion to Quash if there are records from Dr. Dumont that relate to diagnosis and treatment independent of the certification examination.

B. Verizon Cellco Partnership

*6 Zavisin objects to Plaintiff’s subpoena for the cell phone call history and text messages from his phone and that of a coworker, Eric Smith, for one month prior to and after the date of the accident. He argues that the discovery request is “completely irrelevant, immaterial, overbroad, harassing, and not reasonably calculated to lead to the discovery of admissible evidence.” Doc. 40. He also argues that it violates his right to privacy found in the Florida Constitution.

Zavisin further argues, on behalf of Mr. Smith, that although Smith drove to the scene after the accident, his cellular telephone calling history and text messages are irrelevant and immaterial, and the subpoena for these records is not reasonably calculated to lead to the discovery of admissible evidence and infringes Smith’s rights to privacy as well. It is undisputed that Smith was not involved in the accident, other than as a witness who came to the scene following the accident. Zavisin contends that Plaintiff can learn if there were any text messages near the time of the accident from Zavisin and he does not need Smith’s records at all. Even if the call histories and times are discoverable, the contents of the messages are private, he argues.

Defendants do not dispute that Plaintiff is entitled to the call history records for three hours before and after the accident; therefore, those records are discoverable. See Murray v. Carlsbad, Case No. 08cv2121-BTM, 2010 WL 2612698, 2 (S.D. Cal. June 25, 2010) (cell phone records of officer from the night of plaintiff’s arrest were discoverable “if for no other reason than the impeachment” of officer involved in arrest); Tetra Technologies, Inc. v. Hamilton, Case No. Civ-07-1186-M, 2008 WL 3307150 (W.D. Okla. Aug. 7, 2008) (ordering defendant’s production of cell phone records for phone used for “business related purposes”).

Plaintiff argues that the month-long call history will show whether Zavisin complied with other regulations that govern the permitted hours of service that a commercial motor vehicle driver can drive during certain periods, designed to avoid driver fatigue. See §§ 395, 395.1, and 395.3 (requiring records of activities, including time spent sleeping). Plaintiff argues that, because his Second Amended Complaint alleges that Zavisin was driving while ill or fatigued,[3] Zavisin’s cell phone records are relevant to whether Zavisin complied with the regulations and was sleeping at the times reported or contradict his records and he was driving during times that his records indicate that he was resting. Plaintiff argues alternatively that if the phone records show that Zavisin was calling managerial staff at the corporate defendants during hours that Zavisin recorded that he was off service, such evidence would be relevant to the issue of the corporate defendants’ independent negligence, in their knowledge of violations and potential acquiescence.

Plaintiff argues that Defendants do not have standing to object to the subpoena for Smith’s records based upon Smith’s privacy rights. Plaintiff cites the Florida Supreme Court holding that the right to privacy is an individual right that can only be raised by the person claiming the right and employers do not have standing to object to discovery based upon the privacy rights of their employees. Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936 (Fla. 2002). It is not clear from the Motion or the Response whether the records being sought are for a business cell phone owned by Defendant Riley Brothers Coach Leasing, Inc., and assigned to Eric Smith, or whether it is his private cell phone. If it is owned by Riley Brothers, then the corporation has standing to object to the cell phone records. The Court will assume for purposes of this Motion that Riley Brothers has standing to assert the Motion to Quash.

*7 As to Mr. Smith’s records, Plaintiff similarly argues that the records pertaining to Smith’s cell phone calls during the requested time are relevant to the hours of service and fatigue issues, since both buses were traveling together. Smith’s records may also lead to the discovery of additional witnesses that Smith communicated with regarding the accident. Thus, the records are relevant and generally discoverable.

Text messages and cell phone usage records are not entitled to any greater protection from discovery than any other evidence. Such information must merely satisfy the standards for discoverability discussed above. Applied here, it is hard to understand why Smith’s records outside the six hour window surrounding the accident and except any texts that actually discuss the accident would have any likely bearing on the issues. As to Smith, the motion to quash is GRANTED, subject to the two exceptions noted.

With respect to Zavisin’s own texts and cell phone records, any texts, whenever written, that discuss the accident are discoverable. It is the duty of Zavisin and his counsel to review the records and produce those that are responsive.

Plaintiff’s conjecture as to the potential relevance of the cell phone usage records remains somewhat mysterious. If Plaintiff is attempting to impeach other records of Zavisin’s work and rest schedule, he has not made that connection very clear. While it is possible that the times of cell usage and the numbers dialed may be inconsistent with other accounts of Zavisin’s activities, Plaintiff has not made a showing that there is a reasonable likelihood of such information being pertinent. On the other hand, these records are readily available and, as noted above, not subject to any privacy concerns. Accordingly, though the Court dubious as to their relevance, Zavisin’s cell phone records for the month preceding the accident shall be produced, along with any pertinent text records as set forth above.

The Motion to Quash the Subpoena to Produce to Verizon Cellco is GRANTED in part and DENIED in part. To the extent permitted herein, Plaintiff may issue an amended subpoena as described within five days of the date of this Order.

C. Subpoenas to Insurers

Defendants argue that the subpoenas to the insurers should be quashed on the grounds that they are overbroad and not reasonably calculated to lead to the discovery of admissible evidence because they are not limited in time, scope or by categories of documents sought, they are irrelevant and immaterial in that the “insurance files” of the Defendants’ primary and excess insurance carriers for this incident and information contained therein are unrelated to the issues in this suit, which arises out of a motor vehicle accident, and the subpoenas constitute no more than an impermissible “fishing expedition” and information concerning insurance is inadmissible. They also argue that the term “insurance file” is undefined and to the extent the subpoenas are call for information prepared concerning any claim information or the accident at issue, such information and documents are protected from disclosure by both the attorney-client and work product privileges.[4]

Defendants also make an argument that they lack the standing to make, i.e., that the underwriting files contain “internal risk evaluation analyses” and “confidential research and commercial information concerning the factors considered and process by which premiums are calculated and coverage provided by the carriers” to Defendant Roberts Brothers Coach Leasing Co., Inc. They argue that coverage is not at issue in this case, that Plaintiff has been provided all applicable insurance policies and Dec Sheets from the Defendants’ insurers. They argue that this is not a breach of insurance contract claim or bad faith claim, where such discovery might be appropriate. In this case, Defendants argue, the files of the primary and excess insurers are not relevant to a claim or defense that has been raised and coverage and interpretations of the policies is not at issue.

*8 In response, Plaintiff argues that the Motion to Quash should be denied because the insurers’ complete files are calculated to lead to the discovery of relevant evidence pertaining to financial and safety information regarding the corporate Defendants, and regarding the existence of Defendant Roberts Brothers Coach Leasing, Inc. – the name painted on the bus in the crash and the registered operator of the bus. The declaration pages for the respective insurance policies indicate that the named insured is Defendant Roberts Brothers Coach Leasing Co., Inc. Defendants have also produced to Plaintiff an endorsement for the same period (effective beginning June 2009) for one of the policies that lists Roberts Brothers Coach Leasing, Inc.[5] (without the “Co.” in the name) as the named insured and lists a significantly lower limit of insurance, thus, Plaintiff wants to see the contents of the file to determine if the latter entity is a proper party defendant and the insurer “would likely contain some documents relevant” to its existence. Doc. 48. Plaintiff argues that the insurance files “are likely to contain financial information regarding the corporate Defendants” for purposes of his punitive damages claim. Doc. 48. Certainly Defendants have this same financial information as well as information on the existence of Roberts Brothers Coach Leasing, Inc. and they are in a better position to produce it to Plaintiff.

Plaintiff also argues that the subpoenaed records are likely to contain records pertaining to the Defendants’ history of accidents, traffic citations issued to their drivers, and issues regarding regulatory compliance. Plaintiff argues that the information is relevant to Plaintiff’s claims against the corporate Defendants that they required or allowed Zavisin to operate while fatigued and that they failed to employ adequate safety measures.

Once again, it readily apparent that Plaintiff’s efforts to connect the information sought with the particulars of this case are fraught with speculation and vague assertions. Corporate status, financial information and accident histories, to the extent pertinent, are best obtained from the corporate defendant. Rummaging through a vaguely described insurance file is not a reasonable way to assemble evidence to case this case ready for disposition. The motion to quash the subpoena for insurance company records is GRANTED.

A final word is in order. The Court is dismayed at the evident lack of meaningful consultation between counsel about these discovery matters. It is strains credulity that experiences counsel could have consulted in good faith in a genuine effort to narrow their differences or resolve the issues presented in these motions. This is a straight forward motor vehicle personal injury case. Counsel, working cooperatively and professionally, should be able to identify and produce the pertinent information needed to develop and present their cases with the motion practice presented here. To the extent formal requests are potentially vague or overbroad (as some of these were), counsel for both sides have an obligation to work through the issues, redefining the requests where needed so the case can proceed on its merits. Should any further discovery problems arise, the Court expects and will require a more substantial effort by counsel to define and attempt to resolve the issues before entertaining any motions.

DONE and ORDERED in Orlando, Florida on October 8, 2010.

Defendants also moved to quash the subpoenas to Team Tours, Inc., and Provident Financial Management seeking payroll records, compensation documents, receipts, reimbursements, and medical long forms for any driver employed by the corporate Defendants. Plaintiff has agreed to restrict the scope of those subpoenas in a way acceptable to Defendants, and the Motion as to those subpoenas is now moot. Doc. 64 at 3 n.1.

Zavisin will have 3 business days to produce them to Plaintiff.

Plaintiff’s attempt to prove Zavasin was fatigued undercuts his argument, above, that some medical condition contributed to the accident and further suggests that a fishing expedition is underway.

Defendants have not filed a privilege log. Doc. 45 at 4.

This was the name painted on the side of the bus involved in the crash.