IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS LIABILITY

LITIGATION, Case No. 3:19-md-2885

 

 Judge M. Casey Rodgers

 Magistrate Judge Gary R. Jones 

This Document Relates to:

United States of America v. 3M Company

Case No. 3:20-mc-63

_________________________________/

ORDER

Pending before the Court is the Government’s motion to quash 

Defendants’ Third Amended Subpoena to non-party LTC Theresa Schulz

(an employee of the Department of Defense) pursuant to Federal Rule of 

Civil Procedure 45 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 

(1951) (“Touhy”). MC ECF No. 13.

1

 Defendants have filed a response in 

opposition to the motion, MC ECF No. 15, and the Government, with leave 

of court, has filed a reply memorandum, MC ECF No. 18. For the reasons 

discussed below, the Government’s motion to quash is GRANTED.

1 For ease of reference, citations to the docket in this miscellaneous matter (Case No. 

3:20-mc-63-MCR-GRJ) are “MC ECF No. __.” Citations to the docket in the MDL (Case 

No. 3:19-md-2885-MCR-GRJ) are “MDL ECF No. __.”

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This multidistrict litigation is a collection of products liability actions

concerned with whether Defendants were negligent in their design, testing, 

and labeling of the nonlinear dual-ended Combat Arms Earplug Version 2 

(the “CAEv2”). Plaintiffs are servicemembers, veterans, and civilians 

seeking damages in this action for hearing loss, tinnitus, and related 

injuries caused by their use of the CAEv2. MDL ECF No. 704.

The Government has been a rich and often critical source of 

discovery related to Plaintiffs’ claims and Defendants’ defenses, particularly 

earlier in this litigation when Defendants attempted to invoke the 

government contractor defense as a shield from state tort liability for those 

plaintiffs claiming injury from using the CAEv2 during their military service. 

See MDL ECF No. 1280 (denying Defendants’ motion for summary 

judgment based on the government contractor defense and granting 

Plaintiffs’ motion for summary judgment on the same as a matter of law).

Relevant here, on December 2, 2019, Defendants sent United States 

Army Major Collin Evans, on behalf of the Department of Defense, a 

request to interview and depose LTC Schulz, who Defendants describe as 

a “military audiologist who participated in the military’s solicitation of the 

Combat Arms Earplug.” MC ECF No. 13-1 at 9. Defendants suggested to 

Major Evans that LTC Schulz’s role in the military is relevant to this 

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litigation because she attended “meetings with representatives from the 

U.S. military, Aearo and ISL to discuss the design and development of the 

dual-ended Combat Arms Earplug” and “participat[ed] in sessions

of the DoD Hearing Conservation Working Group at which the Combat 

Arms Earplugs were proposed and discussed.” Id. Defendants sought to 

depose LTC Schulz regarding: “(i) the military’s desire for a non-linear 

hearing protection device; (ii) the military’s participation in the design and 

development of non-linear hearing protection devices, including the 

Combat Arms Earplug; (iii) analyses or testing of non-linear earplugs 

containing the ISL filter, including the Combat Arms Earplug; and (iv) the 

location of any documents or data regarding those topics.” Id.

The Department denied Defendants’ request in August 2020. MC 

ECF No. 13-4. The Department explained that LTC Schulz’s anticipated 

testimony would be “irrelevant in light of the Court’s decision that 3M 

cannot avail itself of the government contractor defense,” that she lacked 

relevant information that would not be cumulative of that disclosed by other 

witnesses, and that her limited recollection of the DoD Hearing 

Conservation Working Group would be cumulative of testimony previously 

provided by COL Kathy Gates and LTC Lorraine Babeu. Id. at 2–3. The 

Department, nevertheless, invited Defendants to supplement their request 

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with any relevant information concerning LTC Schulz that they wished the 

Department to consider. Id. at 3.

Two weeks later, Defendants, in accordance with Pretrial Order No. 

50, MDL ECF No. 1340, issued an Amended Subpoena and, on September 

28, a Second Amended Subpoena to LTC Schulz for her deposition. MC 

ECF Nos. 13-2, 13-3. The Government moved to quash the Second 

Amended Subpoena in the Western District of Texas, MC ECF No. 1, and, 

upon 3M’s motion, MC ECF No. 2, Judge David Alan Ezra transferred the 

matter to this Court but denied the pending motion to quash as moot 

subject to refiling, MC ECF No. 6. The Government did not renew its 

motion to quash.

On December 1, at the Court’s instruction, Defendants issued a Third 

Amended Subpoena to LTC Schulz for her deposition, scheduled to take 

place on December 22. MC ECF No. 13-1. Defendants’ subpoena merely 

referred to their initial discovery request to interview and depose LTC 

Schulz. Id. The Department responded to the subpoena in a 

comprehensive letter on December 16. MC ECF No. 13-6. The 

Department raised several objections to Defendants’ Third Amended 

Subpoena, including that: (1) a deposition of LTC Schulz would be unduly 

burdensome; (2) the discovery sought is irrelevant in view of the Court’s 

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order denying summary judgment on the government contractor defense 

and, therefore, not proportional to the needs of the case; (3) LTC Schulz

lacks relevant knowledge regarding the design, development, analyses, 

and testing of non-linear earplugs; (4) her testimony would be cumulative or 

duplicative LTC John Merkley (the Army Hearing Program Manager), Dr. 

Richard Price (Senior Guest Researcher at the Army Research 

Laboratory), Col. Gates, and Dr. Babeu; and (5) the cumulative impact of 

Defendants’ subpoenas would pose an undue burden on the Department’s 

administration. Id. The Government filed the instant motion to quash two 

days later. MC ECF No. 13.

The Government’s motion to quash is governed by the Housekeeping 

Statute (5 U.S.C. § 301), the Department of Defense Touhy regulations (32 

C.F.R. § 97.1, et seq.), and the Administrative Procedure Act (“APA”) (5 

U.S.C. § 706). In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-

md-2885, 2020 WL 6787216, at **3–5 (N.D. Fla. Oct. 29, 2020), report and 

recommendation adopted, 2020 WL 6746620, at *1 (Nov. 17, 2020); see 

also Westchester Gen. Hosp., Inc. v. Dep’t of Health and Human Servs., 

443 F. App’x 407, 409 n.1 (11th Cir. 2011); Moore v. Armour Pharm. Co., 

927 F.2d 1194, 1197 (11th Cir. 1991). The Housekeeping Statute 

authorizes the Department of Defense to adopt regulations concerning 

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testimony by agency employees and the production of government 

documents. Touhy, 340 U.S. at 463. The Department’s Touhy regulations 

require the Department to consider myriad factors when deciding whether 

to authorize or preclude agency employees to testify or produce 

documents, including, in pertinent part, “[w]hether the request or demand is 

unduly burdensome or otherwise inappropriate under the applicable court 

rules[.]” 32 C.F.R. § 97.6(b)(1). If the agency’s decision is challenged on a 

motion to quash or motion to compel, the Court must determine whether it 

is arbitrary and capricious under the APA, such that the agency failed to 

“examine[] the relevant data” or to articulate “a rational connection between 

the facts found and the choice made.” Dep’t of Commerce v. New York, 

139 S. Ct. 2551, 2569 (2019).

Turning to the dispute at hand, the Government argues that the 

Department’s decision to preclude LTC Schulz’s deposition is not arbitrary 

and capricious because the Department carefully considered Defendants’ 

Touhy request and offered detailed and case-specific reasons for denying it 

(as described above and in the Department’s December 16, 2020, letter). 

MC ECF No. 13 at 8–12. Alternatively, the Government asserts that the 

Third Amended Subpoena should be quashed under Rule 45 because it is 

unduly burdensome insofar as it seeks information that is irrelevant, 

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cumulative, or duplicative or has a significant cumulative impact on the 

Department. Id. at 12–19.

The Court concludes the Department’s decision to preclude LTC 

Schulz’s deposition is not arbitrary and capricious and Defendants’ 

arguments to the contrary must fail. First, Defendants inexplicably address 

the Department’s September 30 response to their Second Amended 

Subpoena to LTC Schulz, MC ECF No. 13-5, not the Department’s 

December 16 response to the Third Amended Subpoena challenged in the 

instant motion to quash, MC ECF No. 13-6. See MC ECF No. 15 at 2–4. 

As the Government points out, this leaves unaddressed some of the 

Department’s contentions in support of its denial of Defendants’ Touhy 

request, which is sufficient to affirm the Department’s decision as 

unopposed. See MC ECF No. 18 at 4 (stating that Defendants only contest 

the argument that LTC Schulz’s testimony would be cumulative or 

duplicative of LTC Merkley and Dr. Price, not COL Gates or Dr. Babeau). 

Pierce v. S.E.C., 786 F.3d 1027, 1034 (D.C. Cir. 2015) (“It is well 

understood in administrative law that a reviewing court will uphold an 

agency action resting on several independent grounds if any of those 

grounds validly supports the result.”).

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Second, Defendants improperly attempt to refashion the 

administrative record before the Court (and on which the Department’s 

decision rested) in the hope of showing that LTC Schulz’s testimony is still

relevant. For example, they say their initial December 2, 2019, Touhy 

request included an assertion that “LTC Schulz participated in the crucial 

meeting with representatives from Aearo where Doug Ohlin opted for a 

dual-ended product.” MC ECF No. 15 at 3. It did not. MC ECF No. 13-1 at 

9. Defendants also aver that LTC Schulz may “provide unique testimony 

regarding the military’s development of training materials for the CAEv2,” 

and they provide a 2005 email by LTC Schulz as an exhibit in support of 

that assertion. MC ECF No. 15 at 4. Defendants, however, did not request 

to depose LTC Schulz on this topic. MC ECF No. 13-1 at 9. These

arguments are unavailing on APA review because the Department’s “only 

obligation [was] to consider the information presented to it in a request in 

light of the Department's regulations.” Westchester Gen. Hosp., Inc. v. 

Dep’t of Health and Human Servs., 770 F. Supp. 2d 1286, 1298 (S.D. Fla. 

2011), aff’d, 443 F. App’x 407 (11th Cir. 2011); see also Dep’t of 

Commerce, 139 S. Ct. at 2753 (“In reviewing agency action, a court is 

ordinarily limited to evaluating the agency’s contemporaneous explanation 

in light of the existing administrative record.”).

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Lastly, it is not apparent that LTC Schulz would provide relevant 

testimony if deposed. She states in her sworn declaration that her only 

involvement with the Hearing Conservation Working Group was focused on 

the Defense Occupational and Environmental Health Readiness System, 

Hearing Conservation, that she does not recall the December 16, 1997, 

meeting with Dr. Ohlin or any meetings discussing the acquisition of nonlinear earplugs, that she was not involved in the acquisition of any such 

earplugs, and that she does not recall participating in the development of 

training materials. MC ECF No. 18-3. Although LTC Schulz’s declaration 

was drafted for the purpose of this litigation (and, therefore, not part of the

administrative record), the statements therein support the Department’s 

assertion that she “lacks relevant knowledge of the information listed in 

[Defendants’] request or the limited information she can provide is 

cumulative of what various other witnesses have disclosed during their 

depositions.” MC ECF No. 13-6 at 4.

In sum, the administrative record reveals that the Department 

examined the facts before it and considered whether LTC Schulz’s 

deposition would be an undue burden or inappropriate under the Federal 

Rules of Civil Procedure, as required by its Touhy regulations. Defendants 

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fail to demonstrate that the Department’s reasoning to preclude LTC 

Schulz’s testimony is arbitrary and capricious.

Accordingly, it is ORDERED that the Government’s motion to quash,

MC ECF No. 13, is GRANTED.

DONE AND ORDERED this 19th day of January 2021.

s/Gary R. Jones GARY R. JONES

 United States Magistrate Judge

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