*1 Currently pending is a motion by the Plaintiff Relators (“Relators”) to quash portions of a subpoena issued by Defendants Methodist Le Bonheur Healthcare and Methodist Healthcare-Memphis Hospitals (“Methodist Defendants” or “Methodist”) to the University of Tennessee Health Sciences Center (“UTHSC”). (Docket Entry (“DE”) 112.) Methodist Defendants have filed a response in opposition to this motion (DE 53.)[1]

For the reasons that follow, Relators’ motion (DE 112) is DENIED.

I. BACKGROUND

Familiarity with this case is presumed and only the background necessary for context or explanation of the Court's ruling is recited. Relator Jeffrey Liebman brought the current action under the False Claims Act (“FCA”) based on allegations that the named defendants committed fraud on both federal and state healthcare programs by way of an affiliation agreement entered into by Methodist, UTHSC, and co-defendant West Clinic, PLLC (“West Clinic”). On December 12, 2019, the District Judge granted Liebman's motion to file a second amended complaint, which, among other things, added Dr. David Stern as a co-relator based on his purported knowledge of “new and substantial” claims against the named defendants. (DE 56-59.)[2]

According to the second amended complaint, Dr. Stern served on the Board of Directors for Defendant Methodist Le Bonheur Healthcare from 2011 to 2017. (DE 59 at ¶ 17.) During the same time period, he also served as Executive Dean and Vice Chancellor at UTHSC. (Id. at ¶ 18.) Of note, the second amended complaint alleges not only that Dr. Stern possesses “direct, detailed, and personal knowledge” regarding Defendants’ purported violation of multiple federal statutes, but also that Methodist CEO Gary Shorb “orchestrat[ed]” Dr. Stern's removal from these positions at Methodist and UTHSC based on Dr. Stern's opposition to the allegedly fraudulent business practices at issue in this case. (Id. at ¶¶ 21, 26.)

*2 On August 21, 2020, Methodist issued a subpoena to UTHSC that sought production of certain records relating to Dr. Stern's employment with UTHSC between January 1, 2011 to December 13, 2019. (DE 113-1.) UTHSC objected to several of the requests, including Nos. 4, 5, 6, and 7, which sought the following:

(DE 113-1 at 10.) UTHSC specifically asserted, among other things, that such requests were “overly broad, unduly burdensome, and [sought] information that is not relevant or likely to lead to the discovery of admissible evidence[.]” (DE 113-4 at 6-8.) Despite these objections, counsel for UTHSC advised counsel for Relators on September 11, 2020 that, in the absence of a motion to quash or otherwise limit the scope of the subpoena, UTHSC would produce the requested documents to Methodist on September 21, 2020. Relators therefore filed the instant motion to quash these four requests a few days later.

II. LEGAL STANDARDS AND ANALYSIS

A court is required to quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies,” or that “subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).” Although Rule 45 does not list irrelevance or overbreadth as grounds for quashing a subpoena, courts have held that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26. Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011). In reviewing a motion to quash a subpoena, courts must therefore examine whether the requests at issue are overly broad or seek irrelevant information under the same standards delineated in Rule 26. Id. The party seeking to quash a subpoena bears the burden of proof. Id.

As this Court previously discussed, ordinarily a party has no standing to challenge a subpoena issued to a non-party unless the party can claim some personal right or privilege in the documents sought. Abundes v. Athens Food Services, LLC, No. 3:14-1278, 2015 WL 13664280, at * 2 (M.D. Tenn. Sept. 18, 2015) (citations omitted). Here, Dr. Stern can claim a personal right in his own employment records, which confers standing. Standing alone is not, however, enough to carry to the day because Rule 45 requires that the party issuing the subpoena “take steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1) (emphasis added); see also Abundes, supra. Dr. Stern is not, however, the one subject to the subpoena, and cannot therefore claim burdensomeness under Rule 45. In fact, Dr. Stern will have no significant role in the process of turning over the documents because they are in UTHSC's possession. For that reason, Relators’ motion to quash fails. Nevertheless, allowing for any disagreement as to Relators’ standing to moving to quash the subpoena based on undue burden, the Court also finds that the motion to quash is properly denied on its merits.

Relators contend that the four requests they seek to quash through this motion represent little more than a “fishing expedition” by Methodist Defendants intended to “harass or embarrass Dr. Stern.” (DE 113 at 8.) Relators argue that the personnel records are irrelevant since Dr. Stern has not asserted any claim for retaliation based on his termination from Methodist, even though the FCA provides for such a cause of action.[3] Relators also claim that the requests are unreasonably broad because they seek employment records through December 2019, which is more than two years after both Dr. Stern's tenure on the Methodist Board of Directors and his Executive Dean position ended. Relators additionally suggest that production of Dr. Stern's personnel files would violate Tennessee law regarding the confidentiality of job performance evaluations of employees of public institutions.[4]

*3 Methodist counters that the requests are both relevant and appropriate in light of Relators’ inclusion of allegations in the second amended complaint that are based specifically on Dr. Stern's purported responsibilities at UTHSC, which included “formulating [UTHSC's] strategic plan, budget, recruitment plans, developing programs and other activities.” (DE 59 at ¶ 15.) Methodist also notes that its request for employment records through 2019 is not unreasonable given that Dr. Stern, though not serving as Executive Dean or part of the Methodist Board of Directors after July 2017, remained employed with UTHSC through 2019. With respect to the confidentiality of Dr. Stern's personnel file, Methodist notes that its discovery request, which is made pursuant to Rule 45 of the Federal Rules of Civil Procedure, is not equivalent to a request for information under the Tennessee Public Records Act (the legislation on which Relators rely to suggest that Dr. Stern's employment records are confidential) and consequently does not impinge confidentiality.

The Court first addresses Relators’ argument with respect to the confidentiality of Dr. Stern's personnel file. Methodist has clearly not made a request for information under the Tennessee Public Records Act and therefore the statute on which Relators rely – Tenn. Code Ann. § 10-7-504 – is not applicable to the current dispute. That Dr. Stern's employment records are not subject to “public inspection” does not render them inaccessible to parties involved in active litigation. See State v. Fears, 659 S.W.2d 370, 376 (Tenn. Crim. App. 1983), overruled on other grounds by State v. Harrison, 270 S.W.3d 21 (Tenn. 2008) (“Courts, grand juries, and district attorneys are not embraced in the term ‘public’ as used in these statutes. The records may be subpoenaed to court at the request of any party to a litigation acting in good faith.”).

The Court next finds that the timeframe involved in Methodist's requests – 2011 through 2019 – is not overly broad merely because Dr. Stern was not an Executive Dean at UTHSC past July of 2017. Relators’ brief acknowledges that Dr. Stern remained employed with UTHSC as a professor through 2019 (DE 113 at 3), which makes Methodist's interest in his employment records from 2018 and 2019 reasonable given the broad scope of discovery permitted in federal courts. See Scanlan v. Sunbeam Prod., Inc., No. 3:12-CV-00009-CRS, 2018 WL 3463069, at *4 (W.D. Ky. Jan. 29, 2018) (noting that Rule 26 “has been generously construed to provide a great deal of latitude for discovery”) (quoting Harris v. Nelson, 394 U.S. 286, 297 (1969)). Although Methodist's access to records other than the years during which Dr. Stern served as Executive Dean and had access to the particularized information giving rise to this action, is more attenuated, it is nevertheless within the broad subject matter scope of discovery and the Court cannot conclude that the temporal scope of the subpoena is itself a sufficient basis on which to grant the motion to quash.

The Court then turns to the crux of the dispute, which requires a determination as to whether Dr. Stern's personnel file is relevant despite the absence of a retaliation claim relating to his employment in the second amended complaint. Under the plain language of Rule 26(b), as amended in 2015, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). This 2015 amendment did not “change the basic principle that Rule 26 is to be liberally construed to permit broad discovery,” Allgood v. Baptist Memorial Medical Group, No. 19-2323, 2020 WL 86455, at *3 (W.D. Tenn. Jan. 7, 2020) (citation omitted), including that, generally, a request for discovery should be considered to be seeking relevant information “if there is any possibility that the information sought may be relevant to the claim or defense of any party in the action.” Invesco Institutional (N.A.), Inc. v. Paas, 244 F.R.D. 374, 380 (W.D. Ky. 2007) (emphasis in original). See also Scanlan, 2018 WL 3463069, at *4 (same). To avoid production of relevant information, the resisting party must establish that the material “is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of disclosure.” Id. at *5 (citation omitted). In the context of the proportionality requirement of Rule 26(b)(1), the requested discovery must be proportional to the needs of the case, but the party claiming undue burden – that is disproportionality – still bears the burden of demonstrating why the request is unduly burdensome or otherwise not discoverable. Reising v. Toro Company, No. 1:17-cv-00431, 2018 WL 5489568, at *2 (S.D. Ohio Oct. 28, 2018) (citing Advisory Committee Note (2015) to Fed. R. Civ. P. 26(b)(1)). Further, when relief in the nature of a protective order is sought, the required showing of good cause must be based on particularized and specific facts, not stereotyped and conclusory statements. In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 929 (6th Cir. 2019).

*4 With these principles in mind, the Court concludes that information pertaining to Dr. Stern's employment with UTHSC is relevant and discoverable. First, two of Methodist's requests deal specifically with Dr. Stern “leaving or being removed from” employment positions at UTHSC. (DE 113-1 at 10, Nos. 6 and 7.) The second amended complaint at least suggests that Relators intend to leverage Dr. Stern's position at UTHSC – which involved intimate familiarity with UTHSC's budget and other pecuniary interests (DE 59 at ¶ 15) – to bolster their claims that Defendants engaged in misconduct. In addition to alleging that the Methodist CEO “orchestrat[ed]” Dr. Stern's dismissal from the Executive Dean position, Relators assert that Methodist officials “considered Dr. Stern as the ‘behind the scenes’ organizer of the resistance by UTHSC” against certain actions undertaken by Defendants. (Id. at ¶¶ 21, 209, 339.) Dr. Stern's opposition to such maneuvering is repeatedly emphasized in the second amended complaint. (Id. at ¶¶ 239-41, 271, 283-85, 291, 402.) Therefore, regardless of whether Dr. Stern's ultimate dismissal from UTHSC is part of Relators’ asserted claims against Methodist, the Court is not persuaded by Relators’ contention that records that may shed light on the actual basis for Dr. Stern's removal are “completely irrelevant” to the instant lawsuit. (DE 113 at 4, 9.)

The same reasoning applies to the other two requests at issue, which seek information pertaining to any complaints lodged or disciplinary action taken with respect to Dr. Stern's employment at UTHSC. (DE 113-1 at 10, Nos. 4 and 5.) As highlighted by Methodist and discussed above, Relators have not only placed their “exceptional professional credentials” at issue in this action (DE 97 at 5), they have accused Methodist officials of facilitating Dr. Stern's termination from his Executive Dean position at UTHSC. (DE 59 at ¶ 21.) The Methodist Defendants are entitled to probe the veracity of claims included in the operative complaint as part of their defense. See Meherg v. Pope, No. 1:10-CV-00185-JHM, 2011 WL 13209819, at *2 (W.D. Ky. Oct. 14, 2011) (granting plaintiff's motion to compel responses from defendant based on finding that information sought was relevant because it could be used to impeach the accuracy of certain records maintained by defendant).

Relators rely heavily on a decision from the Northern District of Illinois to support their contention that Methodist's requests for employment records are overly broad. See United States ex rel. Sibley v. Handrup, No. 13 C 7733, 2016 WL 8738943 (N.D. Ill. July 11, 2016). However, any similarities between Handrup and the instant matter are significantly outweighed by critical distinctions. Handrup involved a plaintiff medical biller who, like Relators, asserted that the subject defendants were involved in fraudulent billing practices in violation of the FCA. Id. at *1. During discovery, the defendant issued a subpoena that sought extensive personnel files relating to the plaintiff's employment, which prompted the plaintiff to file a motion to quash. Id. The defendant argued that such information was relevant because it might have bearing on the plaintiff's “reputation for truthfulness or untruthfulness in her business community.” Id. at *3. The court ultimately quashed the subpoena based on the following reasoning:

Multiple aspects of the Handrup decision make it inapposite to the instant dispute. First, the defendants in Handrup issued subpoenas to nine different former employers seeking information entirely unrelated to the cause of action. Id. at *1. Unlike the subpoena issued by Methodist, the defendants’ requests in Handrup were not restricted to a specific time period or subject matter, which, as noted by the court in that case, is the classic indication of an improper “fishing expedition.”

In addition to the sheer breadth of the requests, the Handrup court also emphasized that the defendants, who admitted that their discovery requests sought only to uncover information regarding the plaintiff's “criminal background,” had failed to provide any indication that the personnel files in question would produce relevant information given that none of these previous employment relationships were at issue in the lawsuit. Id. at *2. In contrast, Dr. Stern's employment with UTHSC – and particularly his role as Executive Dean – is very much linked to Relators’ theory of the case. Indeed, the Methodist Defendants note that their discovery requests are intended to test not only the general credibility of Dr. Stern, but the veracity of allegations that are explicitly set forth in the operative complaint regarding his removal. This is a far cry from behavior intended solely to “harass or embarrass” Dr. Stern.

*5 Finally, as noted above, the Court finds no burden on Dr. Stern in production of the records at issue by UTHSC. Nor does the Court find merit in Relators’ contention that the records at issue will cause “reputational damage” to Dr. Stern (Id. at 10-11), as the cases cited by Relators to support this proposition involve sweeping discovery requests that are simply not analogous to those at issue here. Cf. Handrup, 2016 WL 8738943 at *2 (finding that “reputational damage” might occur as a result of the “broad subpoenas” directed a nine different employers); Brown v. Yellow Transp., Inc., No. 08 C 5908, 2009 WL 3270791, at *5 (N.D. Ill. Oct. 9, 2009) (granting motion to quash based on finding that criminal convictions of two plaintiffs decades earlier did not support a review of their entire employment histories); Guercia v. Equinox Holdings, Inc., No. 11 CIV. 6775, 2013 WL 2156496, at *4 (S.D.N.Y. May 20, 2013) (quashing subpoena seeking records from plaintiff's previous employers based on finding that, in a gender discrimination suit, plaintiff's prior work history was irrelevant because it would only reveal information “that could have justified the employer's acts”) (emphasis in original); Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 241 (E.D. Va. 2012) (noting that subpoena seeking “entire employment file from [plaintiff's] former employers” was “not limited to seeking only those documents relevant to this FLSA overtime compensation action”); Blotzer v. L-3 Communications Corp., 287 F.R.D. 507, 510 (D. Ariz. 2012) (quashing subpoena seeking evidence of dishonesty in personnel files from three of plaintiff's former employers given that plaintiff had already admitted to inaccurate reporting on employment application and falsifying overtime documents).

As previously noted, the “quite broad” scope of discovery permitted under Rule 26 does not require a party to prove that the evidence it seeks will be admissible at trial. Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). See also State Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, LLC, 255 F. Supp. 3d 700, 704 (E.D. Mich. 2017) (noting that Rule 26 “authorizes relatively expansive discovery”). Information relating to Dr. Stern's employment at UTHSC is germane to allegations set forth in the second amended complaint, including to the Methodist Defendants’ defenses to those allegations, and Relators have not carried their burden of demonstrating that the requests at issue are overly broad or would impose an undue burden for Dr. Stern. For all these reasons, Relators’ motion to quash (DE 112) is DENIED.

It is SO ORDERED.