*1 This matter is before the Court on Defendant's Motion to Quash or Limit Third-Party Subpoenas and for Protective Order [Doc. 28]. Defendant, Dr. Ian Swift, argues the subpoenas served on nonparties Aspirus Wausau Hospital, ENT & Allergy Associates, Medford Memorial Hospital, and Memorial Health Center seek irrelevant, privileged, and confidential materials which, in some cases, will unreasonably burden the non-parties [Doc. 28]. Defendant Swift requests the Court quash the subpoenas, and alternatively seeks a protective order prohibiting inquiry into these matters. After reviewing the Motion, Response, and Reply, the Court denies the Motion to Quash or Limit Third-Party Subpoenas for lack of jurisdiction.[1] Further, the Court denies the request for a protective order without prejudice for want of information from the Plaintiff and Defendant Swift.

This case concerns a claim of medical malpractice by Plaintiff, April Polk, against Defendant, Dr. Ian Swift. On October 7, 2014, Defendant Swift performed nasal surgery on Plaintiff as a result of a diagnosis of chronic sinusitis and inferior turbinate hypertrophy. The surgical orders and pre-operation forms directed Defendant Swift to perform a submucosal turbinate reduction and functional endoscopic sinus surgery. After the operation Plaintiff experienced adverse symptoms that prompted her to see other providers. Upon further examination it was determined that Plaintiff's turbinates had been removed rather than reduced as directed by the surgical orders and pre-operation forms. Dr. Swift's removal of Plaintiff's turbinates caused her to suffer from empty nose syndrome which is incurable.[2]

In addition to the medical malpractice claim against Defendant Swift, Plaintiff alleges various claims against Defendants Wyo ENT P.C., Campbell County Health, and Campbell County Memorial Hospital, including vicarious liability, fraud by misrepresentation and concealment, negligent or reckless disregard and upcoding, as well as failure to properly provide privileges or credentials. Plaintiff seeks compensatory and punitive damages. Defendants deny the material allegations, dispute the facts as set forth in the Complaint, and assert various affirmative defenses. Fact discovery must be completed on April 30, 2021. A jury trial is set for August 9, 2021.

Plaintiff claims four non-party, Wisconsin medical providers, possess relevant information regarding Defendant Swift's previous employment history. Specifically, Plaintiff seeks information surrounding the circumstances in which Defendant Swift left Wisconsin to begin practicing medicine in Gillette, Wyoming. As such, Plaintiff served four third-party subpoenas duces tecum and requested the documents be delivered to Studinsky Law in Plover, Wisconsin [Doc. 29]. Defendant Swift now moves to quash or limit the third-party subpoenas or, in the alternative, requests entry of a protective order.

Subpoena of Third Party- Rule 45

*2 In the event a nonparty has information, the seeking party must serve a subpoena on the nonparty to conduct discovery. Fed. R. Civ. P. 45; Landry v. Swire Oilfield Servs., LLC, 323 F.R.D. 360, 390–91 (D. N.M. 2018). If a subpoena is served, a party to the suit may file a motion to quash or modify the subpoena. Fed. R. Civ. P. 45. However, because a nonparty is involved there may be geographical implications affecting the Court's jurisdiction to quash or modify a subpoena. See Fed. R. Civ. P. 45. As such, a distinction is made between the court that issues the subpoena and “the court for the district where compliance is required.” See Fed. R. Civ. P. 45 (emphasis added).

The issuing court is the court where the action is pending. Fed. R. Civ. P. 45(a)(2). The court for the district where compliance is required is “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c). In effect, the court for the district where compliance is required has jurisdiction to quash or modify a subpoena. See Fed. R. Civ. P. 45(3)(A). That court must quash or modify a subpoena that commands the nonparty to conduct discovery exceeding 100 miles of their place of employment, residence, or business. Fed. R. Civ. P. 45(3)(A)(ii). In addition, a subpoena requiring the disclosure of privileged and protected information or subjecting a person to an undue burden must be quashed or modified by the court for the district where compliance is required. Fed. R. Civ. P. 45(3)(A)(iii)–(iv).

Further, when the court where compliance is required does not issue the subpoena it may transfer a motion to quash to the issuing court if the nonparty consents or if exceptional circumstances exist. Fed. R. Civ. P. 45(f). Only after such a motion is transferred to the issuing court will the issuing court have jurisdiction to execute an order. Fed. R. Civ. P. 45(f). The order is enforced when the issuing court transfers the order to the court where the motion was made. Fed. R. Civ. P. 45(f).

Protective order- Rule 26(c)

Parties may obtain through discovery “any nonprivileged matter that is relevant to the claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Brandt v. Von Honnecke, No. 15-cv-02785-RM-NYW, 2018 WL 510277 at * 3 (D. Colo., Jan. 23, 2018); Fed. R. Evid. 401. Further, a factor of determining proportionality is “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b). The scope of discovery may be limited by court order. Fed. R. Civ. P. 26(b).

Moreover, the Federal Rules of Civil Procedure states that a party “may move for a protective order where the action is pending.” Fed. R. Civ. P. 26(c). If there is good cause, the trial court may grant, at its discretion, a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Bhasker v. Kemper Cas. Ins. Co., 361 F. Supp. 3d 1045, 1119 (D. N.M. 2019); Fed. R. Civ. P. 26(c). The party seeking a protective order bears the burden of showing good cause for the protective order. Landry, 323 F.R.D. at 383 (citing Velasquez v. Frontier Med. Inc., 229 F.R.D. 197, 200 (D. N.M. 2005)). As such, the Defendant in this case must submit “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Bhasker v. Kemper, 361 F. Supp. 3d at 1119.

*3 Defendant Swift seeks to quash the four non-party subpoenas claiming they seek irrelevant and privileged documents such as personnel files and protected peer-review materials. The subpoenas also seek documents dating back more than a decade which is unreasonably burdensome, according to Defendant Swift. Alternatively, Defendant Swift seeks a protective order prohibiting Plaintiff from obtaining credentialing and personnel files, as identified in Requests Nos. 1-4 and 6 [Doc. 28].

Plaintiff requests the Court deny Defendant's Motion. First, Plaintiff argues Defendant Swift violated Local Rule 37.1(b) when he failed to engage the parties in an informal conference and obtain approval prior to filing the Motion.[3] Second, Plaintiff claims this Court lacks jurisdiction to quash or modify the third-party subpoenas. Lastly, Plaintiff asserts the information sought by the third-party subpoenas is not privileged and is relevant [Doc. 29].

To begin, the first issue is whether the Court has jurisdiction to rule on the Motion to Quash. The Court finds it does not. [Doc. 28].[4] This Court is the issuing court, not the court for the district where compliance is required. See Rule 45(d)(3)(A)(ii). This Court is more than 100 miles away from Wisconsin where the four third-parties conduct business and where the subpoenas were served. Plaintiff concedes as much by stating the United States District Court for the Western District of Wisconsin is the court where compliance is required and, therefore, has jurisdiction to quash or modify the third-party subpoenas. Defendant Swift also concedes he would have had to file a separate motion to quash in Wisconsin if he did not also seek the protective order [Doc. 29]. Therefore, Defendant Swift's Motion to Quash or Modify the four subpoenas at issue is denied.

This leaves the matter of the requested protective order. Defendant Swift requests a protective order preventing Plaintiff from seeking the irrelevant, private, and confidential materials requested in the subpoenas. Specifically, Defendant Swift claims Plaintiff's Requests Nos. 1–4 and 6 in the third-party subpoenas “are solely targeting information relating to Dr. Swift's participation in Wyoming's Physician Assistant Program precipitated by an alcohol infraction in Wisconsin dating back to 2011 when Dr. Swift practiced in Wisconsin.” [Doc. 28, at 7]. Such information, asserts Defendant Swift, can only be used for character assassination. Plaintiff argues the requests are relevant to the claims of negligent credentialing, but Plaintiff does not contest Defendant's request for a protective order. [Doc. 29] Instead, Plaintiff responds to Defendant Swift's Rule 26(c) argument against the backdrop of Rule 45 [Doc. 29].

*4 Taken together, the Court is left wanting with regards to the specific information Plaintiff is actually seeking through these subpoenas. As a preliminary matter, it is accepted the scope of discovery is relatively broad and the Court has discretion in shaping it. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188–89 (10th Cir. 2009). Further, the actual shaping of the scope of discovery “should be determined according to the reasonable needs of the action.” Id. at 1189 (quoting Fed. R. Civ. P. 26 advisory committee's note to the 2000 amendments (internal quotation omitted)). In the instant case, Plaintiff has not adequately informed the Court on the reasonable needs of the subpoenas beyond broadly seeking “documents pertaining to Defendant Swift's employment and practice in Wisconsin” relevant to its negligent credentialing claim. [Doc. 29, at 4]. Plaintiff does not directly respond to Defendant Swift's request for a protective order.

Moreover, Defendant Swift appears to have started in his attempt to show good cause for a protective order, but has not met his burden. Specifically, Defendant Swift's fixation on the Motion to Quash swallows his request for a protective order. For example, Defendant Swift asserts that information regarding his alcohol infraction in Wisconsin will be used by Plaintiff for purposes of character assassination. This constitutes Defendant Swift's primary showing of good cause and is the distinguishing feature of his request for a protective order. Otherwise, Defendant Swift's Motion to Quash appears to propel the remaining support for his request. As it stands, the Court is under the impression Defendant Swift's request for a protective order is merely a stopgap measure in the event the Motion to Quash is denied. While a request may be used as such, the Court requires more from Defendant Swift with regards to a showing of good cause to rule on the protective order. In turn, the Court is unable to fairly evaluate the present request and therefore, the Court denies Defendant Swift's request for a protective order.

However, because the parties have not fully addressed the protective order issue in the filings, the request for a protective order is dismissed without prejudice. In the meantime, the production of any documents sought by the subpoenas at issue is stayed until this matter is resolved. Defendant Swift has until July 24, 2020, to file a motion for protective order if he chooses. The Court requires Defendant Swift include an updated proposed protective order with his motion.

This Court may rule on third-party subpoenas only if it has jurisdiction to do so. See Fed. R. Civ. P. 45. The Court does not have jurisdiction and therefore, denies Defendant's Motion to Quash or Limit Third-Party Subpoenas. However, the Court has discretion in shaping the scope of discovery. In re Cooper Tire & Rubber Co., 568 F.3d at 1188–89. In exercising its discretion, the Court denies Defendant Swift's request for a protective order without prejudice. The Court stays the production of all documents sought by the four third-party subpoenas and Defendant Swift has until July 24, 2020, to file a motion for protective order if he chooses.

NOW, THEREFORE, IT IS ORDERED Defendant's Motion to Quash or Limit Third-Party Subpoenas is DENIED. It is further ordered Defendant's Motion for a Protective Order is DENIED, without prejudice.

Dated this 15th day of July, 2020.

Plaintiff requested a telephonic hearing on the matter [Doc. 33]. This request was denied. [Doc. 37]. Local Rule 7.1(b)(1)(D) states, “[p]arties shall not file reply briefs for any motion set for a hearing. Parties may file a reply brief for motions to be determined without a hearing[.]” Because Plaintiff filed a reply brief, the matter shall be decided on the briefing.

These facts are taken as true for the purposes of the Motion to Quash or Limit Third-Party Subpoenas and for Protective Order.

In accordance with Local Rule 37.1(b), parties have a duty to confer orally, in person or by telephone, to resolve any discovery disputes. U.S.D.C.L.R. 37.1(b). The Rule further provides “[i]n the event that the parties cannot settle the discovery dispute on their own, then counsel shall jointly contact the appropriate judge's chambers for approval prior to filing any written discovery motion.” Id. (emphasis added). In the instant case, the parties appear to have had limited email correspondence regarding the third-party subpoenas and the present Motion. Defendant Swift waited three days for Plaintiff's response to his request to modify or withdraw the subpoenas. Defendant Swift was concerned he would fail to file the present Motion before compliance of the subpoenas was required. He filed the Motion twenty-four hours before then. As such, it appears Defendant Swift did not, nor did he attempt, with Plaintiff to jointly contact chambers for approval prior to filing the present Motion. While this conduct violates the Local Rules, the Court exercises its discretion to decide the issue on the merits rather than this procedural mishap. While compliance with Local Rules is expected and required, the interests of judicial economy compel a ruling nevertheless. In the future, Defendant Swift is advised to properly adhere to Local Rule 37.1.

Plaintiff cites Fish v. Big Spring Spa for further support but, as noted by Defendant, the facts provided by Plaintiff do not correspond with the facts of Fish.