United States District Court, M.D. Florida, Tampa Division
ARNOLD SANS ONE UNITED STATES MAGISTRATE JUDGE
Hilda van Hoek requests an order protecting against and
quashing a subpoena duces tecum issued to nonparty Leisa
Meredith by Defendants McKesson Corporation, PSS World
Medical, Inc., McKesson Medical-Surgical Inc., and McKesson
Medical-Surgical Top Holdings, Inc. (collectively, the
defendants). (Doc. 122). Van Hoek argues that certain
requested documents are privileged work product.
(Id.). For the reasons stated, the motion is
DENIED without prejudice.
is PSS World Medical, Inc. and McKesson Corporation's
former employee and is identified as a potential witness in
van Hoek's Rule 26(a)(1)(A)(i) disclosure. (Doc. 40-1).
In January 2016, Meredith provided a two-page declaration to
van Hoek's counsel. (Doc. 122, Ex. B, pp. 10-11).
August 28, 2019, the defendants served van Hoek's counsel
with their deposition notice and subpoena duces tecum for
Meredith's September 11, 2019 deposition. (Doc. 122, Exs.
A, B). Less than forty-eight hours before Meredith's
scheduled deposition and over a week after being served with
a copy of the notice and subpoena via email, van Hoek asks
the court to quash the subpoena duces tecum or enter a
protective order prohibiting the discovery of duces tecum
request nos. 6, 18, 20, 22, and 27. (Doc. 122). Because the
deposition is tomorrow, September 11, 2019, the deposition of
this non-party witness has been rescheduled three times, and
the most recent dispositive motion deadline proposed by the
parties (October 18, 2019) is barely over a month away,
court issues its ruling without the benefit of the
Rule of Civil Procedure 26(b)(1) governs the scope of
permissible discovery. That rule provides, in pertinent part,
that “[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).
45(d)(3) provides that, on a timely motion, a court must
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)(iii), (iv).
While a party generally does not have standing to move to
quash a subpoena issued to a non-party, “[a]n exception
exists where the party demonstrates a personal privacy right
or privilege with respect to the subject matter of the
subpoena.” Martin v. National Union Fire Ins. Co.
of Pittsburgh, PA, No. 8:13-cv-00285-T-27MAP, 2013 WL
12156516, at *1 (M.D. Fla. 2013) (quoting Auto-Owners
Inc. Co. v. Se Floating Docks, Inc., 231 F.R.D. 426, 429
(M.D. Fla. 2005)).
the work product doctrine, documents and other
“tangible things” are not discoverable by a party
when they were “prepared in anticipation of litigation
or for trial by or for another party or its representative
(including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent).” Id.
at 26(b)(3)(A). Documents and materials reflecting an
attorney's mental impressions, conclusions, opinions, or
legal theories are referred to as “opinion work
product” and have almost absolute immunity from
discovery. Cox v. Administration United States Steel
& Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994)
duces tecum request nos. 16, 18, 20, 22, and 17-seeking in
one form or another-Meredith's drafts of her declaration
and communications with van Hoaek's counsel, are at issue
here. It is unclear whether Meredith possesses the drafts and
communications requested. And, if so, whether van Hoek's
counsel's mental impressions, conclusions, opinions, or
legal theories are contained in those documents. Thus, this
motion is premature.
event Meredith brings the declaration drafts and
communications requested to her deposition and those
documents contain van Hoek's counsel's opinion work
product, they should be placed in a sealed envelope. Prior to
production, van Hoek may move by separate motion for an in
camera review of those documents to determine if they are
subject to work production protection. Notably, while the
draft declarations or counsel communications may be subject
to protection following an in camera review, Meredith's
recollection of the creation of her declaration is not
protected and this order does not preclude that deposition
it is unknow whether Meredith is in possession of the
documents requested in subpoena duces tecum request nos. 16,
18, 20, 22, and 17, and what is contained in those documents,
van Hoek's motion to quash subpoena or for protective
order (Doc. 122) is DENIED without
prejudice. Van Hoek may move for protection and in
camera inspection by ...