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In re Asbestos Products Liability Litigation

February 24, 2009

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)


The opinion of the court was delivered by: Eduardo C. Robreno, J.

MDL DOCKET No. 875

THIS DOCUMENT RELATES TO ALL ACTIONS

MEMORANDUM

I. INTRODUCTION

In 2005 and early 2008, certain Defendants issued subpoenas to physicians seeking the production of certain documents from the physicians who had issued a number of diagnosing reports or opinions produced by Plaintiffs in the course of litigation in MDL 875.*fn1

Before the court are motions to quash these subpoenas, filed on behalf of Dr. Laxminaraya C. Rao, Dr. Richard Bernstein, and Dr. Jay Segarra (together referred to as the "Doctors"), either through their own attorneys or through counsel for MDL 875 Plaintiffs. In response, certain Defendants have filed motions to compel production of documents in accordance with the subpoenas.

For the reasons that follow, the court finds that the objections to the subpoenas by the Doctors and the Plaintiffs lack merit and accordingly, the motions to quash will be denied. However, the court finds the subpoenas served upon the Doctors are too broad and overly burdensome, and the subpoenas will be enforced only as to the documents related to diagnoses of asbestos related conditions relied upon by Plaintiffs in MDL 875.

II. BACKGROUND

The Judicial Panel on Multidistrict Litigation has consolidated all of the federal asbestos products liability personal injury claims in the Eastern District of Pennsylvania for pretrial proceedings.*fn2 Defendants in this matter are alleged to have caused or contributed to the cause of asbestos related personal injuries. Plaintiffs are those individuals seeking damages for these asbestos related injuries.

In the course of the MDL 875 litigations, Defendants issued subpoenas to the Doctors who diagnosed Plaintiffs as being afflicted with various diseases, mostly resulting from occupational asbestos exposure.*fn3 The subpoenas seek, inter alia, production of the Doctors' screening medical documents.*fn4 The Doctors, argue that the subpoenas should be quashed because: (1) production of the documents requested by the subpoenas would violate the Health Insurance Portability and Accountability Act ("HIPAA"); (2) the subpoenas are exempt from discovery because the Doctors were acting as consulting experts under Federal Rule of Civil Procedure 26(b)(4)(B); (3) The subpoenas are overly broad and unduly burdensome; and (4) the notice of the subpoenas to opposing counsel was untimely, making the subpoenas procedurally deficient under Federal Rule of Civil Procedure 45(b)(1). Defendants, in turn, have filed motions to compel full compliance with the subpoenas.

For the purposes of this opinion, substantive objections raised by the Doctors will be addressed jointly. Addressed in a separate section will be Plaintiffs' objection to the issuance of the subpoenas based on untimely notice.

III. JURISDICTION

Multidistrict litigation ("MDL") is governed by 28 U.S.C. § 1407, which specifically grants district court judges in transferee courts the "powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings". 28 U.S.C. § 1407(b). Some courts have read this grant of authority to conflict with the general guidance of Federal Rule of Civil Procedure 45 which, in pertinent part, states that "the court by which a subpoena was issued shall quash or modify the subpoena . . . ." Fed. R. Civ. P. 45(c)(3)(A). Several courts have reconciled the language of both the statute and the federal rule to find that the statute's reference to "depositions" encompasses document production subpoenas as well. In re Clients & Former Clients of Baron & Budd, P.C., 478 F.3d 670, 671 (5th Cir. 2007); see also In re Sunrise Sec. Litig., 130 F.R.D. 560, 586 (E.D. Pa. 1989); In re Welding Rod Prod. Liab. Litig., 406 F. Supp. 2d 1064, 1065 (N.D. Cal. 2005); United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, Inc., 238 F. Supp. 2d 270, 274-75 (D.D.C. 2002); In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. 30, 32-33 (D.P.R. 1987).*fn5

This accommodation seems reasonable in light of the purpose of the statute to coordinate and consolidate pretrial proceedings, providing centralized management "to ensure 'just and efficient' conduct". United States ex rel. Pogue, 238 F. Supp. 2d at 273 (quoting In re New York City Mun. Sec. Litig., 572 F.2d 49, 51 (2d Cir. 1978)). To hold that a court presiding over an MDL case could not enforce a motion to compel would hamper the ability of an MDL court to coordinate and consolidate pretrial proceedings. United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, 444 F.3d 462, 468 (6th Cir. 2006). If that ...


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