1 

4846-3628-6946

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-23449-BLOOM/Louis 

JULIE FERRO,

Plaintiff, 

v. 

DOCTORS HEALTHCARE 

PLANS, INC., et al. 

Defendants. 

DEFENDANTS’ MOTION TO QUASH AND/OR MOTION FOR PROTECTIVE 

ORDER REGARDING SUBPOENAS ISSUED TO EMPLOYEES OF DOCTORS 

HEALTHCARE PLANS, INC. 

 Defendants Doctors HealthCare Plans, Inc. (“DHCP’) and Rafael Perez (“R. Perez”) 

(together, the “Defendants”), pursuant to Federal Rules of Civil Procedure 26(c) and 45, and 

Southern District of Florida Local Rule 26.1(h)(3), respectfully move this Court for entry of 

an order quashing subpoenas issued by Plaintiff Julie Ferro to DHCP employees Daniel 

Perez, Janelle Perez, Martin Perez, Andres Prieto, and Elba Reyes.1 Each of these subpoenas 

is impermissibly vague and therefore overbroad, is duplicative of discovery requests 

previously served on Defendants, and seeks information that is irrelevant to any of the claims 

or defenses at issue in this case. In support of this Motion, Defendants state as follows: 

A. BACKGROUND 

 In this lawsuit, Ferro asserts a single count of retaliation under the Family Medical 

Leave Act (“FMLA”) against both her former employer DHCP and its Chief Executive 

 

1

 These subpoenas are attached hereto as Composite Exhibit 1 (the “Employee Subpoenas”). 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 1 of 10
2 

4846-3628-6946

Officer, and Ferro’s former supervisor, Rafael Perez. See generally Am. Compl. [ECF No. 10]. 

As alleged in the Amended Complaint, Ferro was employed as DHCP’s Vice President of 

Provider Relations between 2017 and her termination in June 2020. Id. at ¶¶ 2, 17. While 

Ferro was terminated as a result of her unsatisfactory job performance, including making an 

unauthorized, several-hundred-thousand dollar settlement offer to a DHCP network 

provider2—she claims that her termination was not due to performance-related reasons, but 

was in fact retaliation for her seeking FMLA leave.3Id. at ¶¶ 117-121. DHCP disputes this 

claim in its entirety. 

 In addition to written discovery directed to both DHCP and R. Perez, Ferro has issued 

subpoenas to five DHCP employees: 

 Daniel Perez – D. Perez previously worked under Ferro in DHCP’s Provider 

Relations department. He currently serves as DHCP’s in-house counsel. He has 

never had supervisory authority over Ferro and is not in the “chain of command” 

as it relates to the requesting or granting of medical leave. 

 Janelle Perez – J. Perez is an employee within DHCP’s Network Development 

department. She has never had supervisory authority over Ferro and is not in the 

chain of command as it relates to the requesting or granting of medical leave. 

 Martin Perez – M. Perez is DHCP’s Chief Financial Officer. He has never had 

supervisory authority over Ferro and is not in the chain of command as it relates 

to the requesting or granting of medical leave. 

 Andres Prieto, MD – Dr. Prieto is DHCP’s Medical Director. He has never had 

supervisory authority over Ferro and is not in the chain of command as it relates 

to the requesting or granting of medical leave. Nor was he responsible for 

 

2

 DHCP is a health-insurance company that specializes in Medicare Advantage plans. 

Accordingly, DHCP manages a network of healthcare providers across South Florida that 

provide various health-related services to DHCP’s members. Ferro’s role as the Vice President 

of Provider Relations largely centered on educating and in-servicing these network providers. 

3 Ferro never requested nor took medical leave of any sort during her employment at DHCP.

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 2 of 10
3 

4846-3628-6946

diagnosing, evaluating, or otherwise treating the medical conditions of any DHCP 

employee, Ferro included. 

 Elba Reyes – Ms. Reyes is Rafael Perez’s administrative assistant. She has never 

had supervisory authority over Ferro and is not in the chain of command as it 

relates to the requesting or granting of medical leave. 

 The subpoenas directed to each of these employees are identical in scope. Despite none 

of these DHCP employees ever having the responsibility to authorize any employment 

decisions made with respect to Ferro, including the granting of medical leave, each 

subpoena seeks: 

“personal text messages or any other electronic communications 

with anyone concerning the following subject-matter: Ms. 

Ferro’s health or medical condition, job performance, 

compensation, separation of employment and her legal claims 

against Defendants detailed in the attached Amended 

Complaint.” 

See Employee Subpoenas. The Employee Subpoenas neither provide a relevant time period 

from which such communications are sought nor carve out any communications that these 

employees may have had with DHCP’s counsel regarding these topic. 

B. ARGUMENT 

 As drafted, these subpoenas are impermissibly vague and therefore overbroad. But 

even if Ferro’s subpoenas were more narrowly tailored, none of the employees from whom 

she seeks documents is able to provide information relevant to her claim for FMLA 

retaliation. Accordingly, each of these subpoenas should be quashed in their entirety. 

 Pursuant to Federal Rule of Civil Procedure 26(b), parties may obtain discovery 

regarding any non-privileged matter that is relevant to any party's claim or defense. See Fed. 

R. Civ. P. 26(b)(1). Rule 26, however, also protects those from whom discovery is sought 

against “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 3 of 10
4 

4846-3628-6946

P. 26(c)(1). The party making a motion for a protective order, however, must show that “good 

cause” exists for the court to issue such an order. Id. In addition to finding good cause, the 

court must also be satisfied that, on balance, the interests of the party seeking the protective 

order outweigh the interests of the opposing party. See, e.g., McCarthy v. Barnett Bank of Polk 

Cty., 876 F.2d 89, 91 (11th Cir. 1989). Similarly, Rule 45 permits a court to quash or modify 

a subpoena if, among other things, the subpoena “requires disclosure of privileged or other 

protected matter” or “subjects a person to undue burden.” See Fed. R. Civ. P. 45(c)(3)(A). 

Where, as here, the subpoena requests irrelevant or privileged information, the trial court is 

empowered to grant a party’s request for protective order or to quash the subpoena. See Sun 

Cap. Partners, Inc. v. Twin City Fire Ins. Co., 303 F.R.D. 673, 676 (S.D. Fla. 2014), aff'd sub nom. 

Sun Cap. Partners, Inc. v. Twin City Fire Ins. Co., Inc., No. 12-CV-81397-KAM, 2015 WL 

11921411 (S.D. Fla. July 6, 2015) (citations omitted). 

1. The Employee Subpoenas are impermissibly vague and thus overbroad. 

As a preliminary matter, as drafted, each of the Employee Subpoenas appears to seek 

every electronic communication that these employees have ever had with anyone related to 

Ferro. First, the request contains no limitations on the relevant time period. Ferro was 

employed at DHCP between approximately January 2017 and June 2020. See Am. Compl. at 

§§ 40, 105. But the subpoenas do not even suggest this as a temporal limit. Instead, they seek 

information related to Ferro’s health, job performance, compensation, termination, and the 

instant lawsuit without bound, inclusive of any time between the present and whenever the 

subpoenaed employee purchased their respective mobile phones or registered their personal 

email accounts. 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 4 of 10
5 

4846-3628-6946

 Second, the subpoenas impose no limitation as to the counterparty of the requested 

electronic communication. The Employee Subpoenas do not restrain the document requests 

to other employees within DHCP, network providers that may have registered complaints 

related to Ferro, or any other category of individuals that may arguably have information 

relevant to Ferro’s claims or Defendants’ defenses. Instead, any communications the 

subpoenaed employee may have had with anyone related to Ferro are fair game, irrespective 

of whether or not such individuals could or did have any role in the purported retaliatory 

conduct alleged in the Amended Complaint. As these document requests are directed at the 

DHCP employees in their personal capacity in their use of personal electronic 

communications instead of in their capacity as employees of DHCP using DHCP equipment, 

the Employee Subpoenas extend to any person the subpoenaed employee has ever had any 

form of electronic communication with. 

 Finally, even the categories of Communications sought by Ferro are not adequately 

defined to limit these subpoenas to documents within areas of interest pertinent to the instant 

lawsuit. For example, Ferro’s claims of retaliation appear centered around two specific 

medical “conditions:” (1) an adverse drug reaction suffered by Ferro in late November/early 

December 2019; and (2) rheumatoid arthritis and the impacts thereof during the COVID-19 

pandemic. Id. at ¶¶ 45-54; 69-102. But her document requests are not so limited, seeking all 

electronic communications related to Ferro’s “health or medical condition.” As phrased, it is 

impossible to know whether Ferro seeks communications related to the two claimed health 

issues described above or whether she intends to have the subpoenaed employees search for 

any text or email to any individual related to any health condition Ferro ever suffered. Indeed, 

none of the categories of communications requested by Ferro are sufficiently defined to permit 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 5 of 10
6 

4846-3628-6946

the subpoenaed employee to efficiently search for relevant documents or lodge objections to 

the more narrowly defined documents, if appropriate. 

 This failure to properly define the scope of the electronic communications sought, 

when combined with the subpoenas’ failure to limit the counterparties to those 

communications, creates another, even more troublesome problem: the Employee Subpoenas 

would capture privileged intra-company communications between these individuals and 

DHCP’s counsel, both in-house and external. Specifically, the subpoenas seek all electronic 

communications concerning Ferro’s “legal claims against Defendants.” Any such 

communications with either DHCP’s in-house counsel D. Perez—himself a target of a Ferro 

subpoena—and the other subpoenaed employees would by definition be foreclosed from 

disclosure by the attorney-client privilege and work product doctrines. As would similar 

communications between these individuals and Defendants’ outside counsel, or even 

communications with any other individuals related to or arising from communications from 

the Defendants’ attorneys with respect to Ferro’s lawsuit. See, e.g., In re Denture Cream Products 

Liab. Litig., 2012 WL 5057844, at *13 (S.D. Fla. Oct. 18, 2012) (“[S]imply because a 

communication is made between two corporate employees, neither of whom are attorneys, 

that fact is not determinative of whether that communication primarily involves business 

advice rather than legal advice for purposes of the attorney-client privilege to that 

correspondence.”). In re Alexander Grant & Co. Litig., 110 F.R.D. 545 (S.D. Fla. 1986) (holding 

that attorney client privileged applied to intra-company communications where such 

communications were related to information requested by counsel for purposes of providing 

legal advice). 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 6 of 10
7 

4846-3628-6946

2. The Employee Subpoenas seek information already requested in written 

discovery directed to the Defendants. 

 In addition, to the extent that there is discoverable information to be found within the 

Employee Subpoenas’ overbroad requests, such information has already been captured by 

written discovery requests directed to the Defendants. The following are just a sample of the 

document requests sent to Defendants that generally mirror the information sought by Ferro 

through the Employee Subpoenas: 

 Request No. 2 – Produce all documents, communications and/or ESI 

related to promotions Plaintiff received and/or was considered for 

during her employment at Defendants; 

 Request No. 3 – Product all documents, communications and/or ESI 

related to, supporting or contradicting the allegations in the 

Complaint; 

 Request No. 4 – Produce all documents, communications and/or ESI 

concerning evaluations of Plaintiff’s performance; 

 Request No. 5 – Produce all documents, communications and/or ESI 

concerning the reasons for Plaintiff’s termination; 

 Request No. 37 – Produce all documents, communications and/or 

ESI concerning any communications regarding, or contemplation of, 

Plaintiff’s termination before she was notified of her termination; 

 Request No. 43 – Produce all documents, communications and/or 

ESI concerning Ms. Ferro’s continued medical treatment and 

symptoms as referenced in paragraph 55 of the Complaint. 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 7 of 10
8 

4846-3628-6946

See generally Plaintiff’s First Request for the Production of Documents to All Defendants (the 

“RFPs”), attached hereto as Exhibit 2. And so on. 

 In the Employee Subpoenas, Ferro defines DHCP as inclusive of the company’s 

“agents, representatives, trustees, officers, directors, employees, partners, predecessors, 

successors, subsidiaries, parents, and affiliates.” Id. at 6. Accordingly, relevant 

communications from each of the subpoenaed employees are likely already within the 

universe of documents to be produced to Ferro by the Defendants. Moreover, these 

communications would by necessity have occurred between DHCP employees within the 

scope of their respective employment responsibilities and would not invade the privacy 

interests of non-parties solely to duplicate efforts already underway by Defendants in this 

matter. 

3. The Employee Subpoenas seek irrelevant information. 

 In any event, the communications sought by Ferro through the Employee Subpoenas 

are ultimately irrelevant to the claims or defenses at issue. See Fed. R. Civ. P. 26(b)(1). To 

succeed on her claim for FMLA retaliation, Ferro must prove that DHCP and/or R. Perez 

intentionally discriminated against her in the form of an adverse employment action for her 

having exercised an FMLA right. See Strickland v. Water Works & Sewer Bd. of City of 

Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001). None of the categories of electronic 

communications sought by Ferro in the Employee Subpoenas are relevant to any of the 

elements of this claim. 

 For starters, none of the employees from whom Ferro seeks documents have anything 

to do with DHCP’s FMLA leave regimen. In the DHCP Employee Handbook, employees 

seeking FMLA leave are directed to “give 30 days’ prior written notice, or as much notice as 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 8 of 10
9 

4846-3628-6946

possible, to [their] supervisor.” See DHCP Employee Handbook at 39, attached hereto as 

Exhibit 3.

4

 Ferro’s supervisor was, at all times during her employment, R. Perez. Indeed, the 

only DHCP employee Ferro even alleges she provided any notice of her need for FMLA leave 

is R. Perez. See Am. Compl. at ¶ 48. Indeed, other than Dr. Prieto, no other DHCP employee 

is even referenced in the Amended Complaint. Accordingly, the only individual whose 

communications are relevant to Ferro’s alleged need for FMLA leave is R. Perez, a defendant 

who has already been served with discovery seeking such information. 

 Moreover, Ferro’s claims of FMLA retaliation are centered on two purported adverse 

employment events: (1) Ferro’s receipt of the lowest COVID-19 payment of any DHCP 

employee at her level, and (2) Ferro’s termination in June 2020. But again, none of the 

subpoenaed employees had any authority whatsoever with respect to decisions made 

regarding Ferro’s employment. As Ferro’s direct supervisor, only R. Perez had the authority 

to reduce her pay or terminate her employment. And again, Ferro has requested documents 

related to these decisions in her written discovery served on the Defendants. Whether or not 

the subpoenaed employees had discussions related to Ferro betwixt themselves, their 

colleagues, or other individuals outside of the DHCP umbrella is utterly immaterial to the 

COVID-19 payment made to Ferro or her termination. Accordingly, the Employee 

Subpoenas seek information beyond that permitted by Rules 26 and 45 and should be 

quashed. 

C. CONCLUSION 

For the forgoing reasons, Defendants request that this Court enter an order quashing 

 

4

 As shown in the attached Employee Handbook executed by Ferro, she was aware of and 

agreed to abide by the policies within the handbook, including those related to FMLA leave. 

See DHCP Employee Handbook at 57. 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 9 of 10
10 

4846-3628-6946

Plaintiff’s Rule 45 subpoenas directed to Daniel Perez, Janelle Perez, Martin Perez, Andres 

Prieto, MD, and Elba Reyes or enter a protective order regarding same. 

CERTIFICATE OF GOOD FAITH CONFERENCE 

 Pursuant to Southern District of Florida Local Rule 7.1(a)(3), the undersigned 

conferred with counsel for Plaintiff via telephone on March 26, 2021. Plaintiff does not agree 

to the relief requested within this Motion. 

Dated: March 26, 2021. Respectfully submitted, 

 /s/ Eric S. Boos 

Daniel B. Rogers 

drogers@shb.com 

Florida Bar No.: 195634 

Eric S. Boos 

eboos@shb.com 

Florida Bar No.: 0107673 

SHOOK, HARDY & BACON L.L.P. 

201 S. Biscayne Blvd., Suite 3200 

Miami, Florida 33131 

Telephone: 305.358.5171 

Counsel for Defendants Doctors HealthCare 

Plans, Inc. and Rafael Perez 

Case 1:20-cv-23449-BB Document 19 Entered on FLSD Docket 03/26/2021 Page 10 of 10