The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
Before the court is the motion of plaintiffs, the Trustees of the AHP
Settlement Trust ("Trustees"), to quash subpoenas served on the auditing
cardiologists of the AHP Settlement Trust ("Trust").
The subpoenas demand production of all documents and materials
pertaining to: the auditor's review or audit of echocardiograms and/or
Green Forms attested to by defendant Dr. Linda Crouse; communications
relating to Dr. Crouse between the auditors and Wyeth, the Plaintiffs'
Management Committee, the Trustees, representatives of the law firm of
Montgomery, McCracken, Walker & Rhoads, LLP, and Dr. John Dent;
financial arrangements between the auditors and the Trust; training
received from the Trust, including materials and documents related
thereto; Trust standards, guidelines, and protocols for audit; Green
Forms and echocardiogram reports signed by Dr. Crouse provided to the
auditors by the Trust; and digital images/files/videotapes provided to
the auditors by the Trust. The Trustees argue that the subpoenas served on the Trust's auditors
should be quashed because all the information Dr. Crouse seeks is in the
possession of the Trust itself. The Trustees expect to provide complete
claim files, including the audit reports, for each claim attested to by
the defendant, pursuant to a document request. They maintain that
pursuant to the audit procedures in the Diet Drugs litigation, documents
in possession of the auditors are protected and that the auditors were
engaged with the understanding that they would not be subjected to
litigation. In any event, when the auditors complete an audit, they
return the audit materials to the Trust. Finally, the Trustees deny that
documents relating to the audit of claims attested to by Dr. Crouse,
communications specifically relating to Dr. Crouse, or training materials
or protocols specific to Dr. Crouse's claims exist. Moreover, according
to the Trust, its auditors are not aware of the identity of the attesting
physician when they perform a review of a claim.
Dr. Crouse argues that the Trustees do not have standing to quash the
third party subpoenas served on the auditors. She also refuses to concede
that the auditing cardiologists do not know the identity of the attesting
physician when a claim is being audited, arguing that the name of her
medical practice appears on the screen when viewing any echocardiogram
tape prepared in her office. She contends that the fact that the Trust
can provide the information she seeks is not enough to prevent the defendant from subpoenaing it from the
We first address the standing issue. "Generally speaking, a party does
not have standing to quash a subpoena served on a third party."
Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001)
(quoting Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo.
1997). However, "an individual or entity claiming a property right or
privilege in the subpoenaed documents" may have standing. In re
Grand Jury Matter, 770 F.2d 36, 38 (3d Cir. 1985). We recently
entered a protective order stating, in part: "[p]ersons who receive
disclosure of auditing cardiologists are prohibited from contacting or
subpoenaing or attempting to contact or subpoena any auditing
cardiologist, except upon prior leave of court." See Memorandum
and Order in Castle v. Crouse, Civ.A. No. 03-5252 (E.D. Pa. May
24, 2004). Although the subpoenas were served prior to the entry of
the protective order, we will treat the inquiry as if Dr. Crouse were now
seeking leave of court pursuant to that order. Therefore, regardless of
the Trustees' standing in the usual sense to challenge Dr. Grouse's
subpoenas of the auditors, we must determine whether the subpoenas can
As explained above, the Trustees first represent that they either have
produced or will produce all the existing documents requested by Dr.
Crouse and argue that demanding the same documents from the auditors will
be unnecessarily duplicative and burdensome and will unduly harass them. Furthermore, the requested documents are not in the possession of the
auditors, as they return audit materials to the Trust as the audits are
completed. Obviously, the auditors cannot produce documents not in their
possession. As to documents specific to Dr. Crouse, the Trustees insist
that none exist.
In their capacity as auditors, the auditing cardiologists are employed
by the Trust. At this juncture, we will accept the representations of
plaintiffs' counsel, as officers of the court, that the Trustees will
provide to Dr. Crouse all existing discoverable documents and materials
requested from the auditors. We see no reason to burden unduly the
Trust's auditing cardiologists when the documents and materials that Dr.
Crouse seeks are available from the Trust itself.
Accordingly, the motion of the Trustees to quash subpoenas served on
the auditing cardiologists will be granted.
AND NOW, this day of May, 2004, for the reasons set forth in the
accompanying Memorandum, it is hereby ORDERED that the motion of the
Trustees of the AHP Settlement Trust to quash subpoenas served on the
auditing cardiologists of the AHP Settlement Trust is GRANTED.
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