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:

Ronald Sloan, 7:20-cv-1

William Wayman, 7:20-cv-149

______________________________/

ORDER

Pending before the Court are: (1) the Objection and Motion to Quash, 

filed by Elliott Berger (“Berger”), ECF No. 2358, (2) Plaintiffs’ Emergency 

Motion to Compel Third-Party Discovery, ECF No. 2361,

1 and (3) 

Defendants’ Motion to Quash.2

On December 22, 2021 the Court scheduled an evidentiary hearing 

for December 29, 2021 to address the issue of whether Berger was 

unavailable for the upcoming Sloan/Wayman trial. In that order the Court 

authorized Berger to testify remotely. The Court also directed Plaintiffs to 

issue a subpoena for Berger’s appearance at the evidentiary hearing in the 

1 Plaintiffs’ Emergency Motion to Compel filed in the individual cases is docketed in 

Sloan at ECF No.110 and is docketed in Wayman at ECF No. 118.

2 Defendants’ Motion to Quash was not filed in the master case but was filed in Sloan at 

ECF No. 117 and was filed in Wayman at ECF No. 125.

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event Berger did not want to appear voluntarily. Plaintiff served a subpoena 

duces tecum directing Berger to appear at a location within 100 miles of his 

residence in Indiana and to produce documents listed in Schedule A of the 

subpoena. In response to the subpoena Berger filed the objection and 

motion to quash objecting to the request to produce documents. In 

response to the objection Plaintiffs filed the emergency motion to compel. 

Defendants then at the last minute filed their Motion to Quash and 

Opposition to Plaintiffs’ Emergency Motion to Compel. The parties’

respective positions are set forth in the objection and motion to quash and 

the motion to compel. The Court will therefore consider the arguments in 

Berger’s objection and motion to quash as his opposition to the motion to 

compel.

DISCUSSION

Berger objects to the timing of the duces tecum request arguing that it 

is unreasonable to require production of documents in such a short time 

frame. Additionally, Berger argues that requiring production in Pensacola, 

Florida more than 100 miles from Berger’s residence violates Rule 

45(d)(3)(A)(ii). Third, Berger argues that the Court only authorized the 

issuance of a subpoena in the event Berger does not agree to appear. 

Because Berger has agreed to appear voluntarily Berger says the 

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subpoena was issued in violation of the Court’s Order scheduling the 

evidentiary hearing. Lastly, Berger says the subpoena duces tecum seeks 

documents that contain attorney-client privilege, co-defense privilege and 

work product documents, all of which is beyond the scope of the 

evidentiary hearing. 

Turning first to the timing of the subpoena, the abbreviated time 

frame for production of the documents by Berger is a direct function of the 

timing of the evidentiary hearing. The Court was required to set the 

evidentiary hearing on a short time frame because the issue only became 

ripe on December 22, 2021 and the Sloan/Wayman trial is scheduled to 

begin on January 10, 2022. Consequently, the Court was required to 

schedule the evidentiary hearing in sufficient time to consider the evidence

and prepare a report and recommendation before the trial commences. The 

subpoena duces tecum was served within two days of the Court’s order 

scheduling the evidentiary hearing and, therefore, under these 

circumstances was not unreasonable. 

Additionally, the documents requested are not voluminous and are 

fairly targeted. In the Court’s view because of the limited universe of 

documents requested the abbreviated time frame was not unreasonable. 

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Production of the documents in the Court’s view could be accomplished in 

a fairly short time frame.

As to Berger’s argument that the subpoena should be quashed

because it requires compliance more than 100 miles from Berger’s 

residence, the argument ignores the directive in the subpoena that the 

documents can be produced by email. There is no requirement that Berger 

appear in person to produce the documents. Mail-in compliance with 

subpoenas is the overwhelming procedure in most cases. Therefore,

because Berger does not need to appear in person in Pensacola to 

produce the documents the subpoena does not violate the 100-mile 

limitation in Rule 45(c)(1)(A) of the Federal Rules of Civil Procedure. See, 

e.g. Trigeant Ltd. V. Petroleos De Venezuala, S.A., No. 08-80584-CIV, 

2009 WL 10668731, at *3 (S.D. Fla. May 5, 2009) (the 100-mile limitation in 

Fed.R.Civ. P. 45(c)(3)(A)(ii) “was intended to apply to nonparty persons 

subpoenaed to testify or appear, and to corporate officers required to 

deliver documents in person.”); Trahan v. Sandoz Inc., No. 3:13-CV-350-J34MCR, 2014 WL 12628614, at *3 (M.D. Fla. July 23, 2014)(refusing to 

quash a subpoena because the person need not appear in person at the 

place of production and instead directing the party issuing the subpoena to 

make arrangements for shipment of the documents).

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As to Berger’s argument that the Court’s order only contemplated the 

issuance of a subpoena if Berger failed to appear voluntarily, the Court’s 

order did not prohibit the issuance of a subpoena duces tecum. The sole 

purpose of the Court directing Plaintiffs to issue a subpoena to Berger if he 

did not agree to appear voluntarily was to ensure that Berger testified at the 

evidentiary hearing. It goes without stating the obvious that if Berger does 

not appear at the hearing there would be no reason to have the hearing 

because the focus of the evidentiary hearing is to determine whether 

Berger is unavailable to provide testimony in the upcoming trial. Thus, the 

Court’s Order focused entirely upon Berger providing testimony at the 

hearing and not the production of documents. Plaintiffs were fully entitled to 

subpoena documents if they believed the documents were relevant to the 

evidentiary hearing.

Lastly, as to the documents Plaintiffs have subpoenaed Berger to 

produce, the documents for the most part are highly relevant to the Court’s 

inquiry at the evidentiary hearing. Documents relating to the retention of 

Berger’s counsel and payment for his services is highly relevant to whether 

Berger is subject to some measure of control by 3M. Further, documents 

relating to the terms of the consulting agreement and the termination of the 

consulting agreement bear upon the issue of whether Berger continues to 

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participate with 3M in the presentation of his testimony. To be sure, Berger 

is not required to produce documents containing communications between 

3M’s counsel and Berger during the time period when 3M says its counsel 

represented Berger. As to whether some communications may be 

protected by the joint representation privilege or are subject to the common 

interest doctrine, to the extent Berger (and/or 3M) intends to assert these 

privileges he (they) should do so in a privilege log as required by Rule 

45(e)(2)(A) and not through a motion to quash that does not provide any 

specificity of the documents that may be subject to the privilege. 

And while the subject matter of communications between Berger and 

3M’s counsel concerning his trial testimony may be subject to privilege,

communications concerning the fact that 3M’s counsel prepared Berger’s 

trial testimony and communications surrounding the coordination for the 

preparation of Berger’s trial testimony, are not privileged and may be highly 

relevant to the issue of whether Berger continues to be subject to some

control by 3M. 

Thus, to the extent that Berger seeks to assert a claim of privilege 

concerning documents that are subject to the subpoena Berger should 

provide a privilege log for these documents so the Plaintiffs may assess the 

assertion of privilege and the Court, if necessary, can resolve any claims of 

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privilege. To the extent, however, that Berger has possession, custody and 

control of documents responsive to the subpoena about which he does not 

assert a privilege Berger must produce these documents to Plaintiffs’

counsel by email in sufficient time for the documents to be available for the 

evidentiary hearing tomorrow morning.

Accordingly, upon due consideration, it is ORDERED:

1. Berger’s Motion to Quash, ECF No. 2358, is DENIED. To the 

extent that Berger asserts a privilege as to any documents 

responsive to the subpoena Berger must assert the privilege in a 

privilege log as required by Rule 45(e)(2)(A) of the Federal Rules of 

Civil Procedure.

2. Defendants’ Motions to Quash (Sloan, ECF No. 117 and 

Wayman, ECF No. 125) are DENIED. Defendants may assert 

privilege through a privilege log. After submission of a privilege log to 

the extent there is a dispute between the parties as to privilege, the 

Plaintiffs may file a motion to compel and after a response the Court 

can then address any issues of privilege.

2. Plaintiffs’ Emergency Motion to Compel Third-Party Discovery, 

ECF No. 2361, is GRANTED. Berger must produce the documents 

responsive to the subpoena over which he does not claim privilege. 

The documents must be emailed to counsel for Plaintiffs in sufficient 

time to be available for the evidentiary hearing on December 29, 

2021.

DONE AND ORDERED this 28th day of December 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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