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 v. 3M Company

Case No. 3:20-mc-54

____________________________/

ORDER

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

Defendants’ non-party deposition subpoena to Dr. Jodee Donaldson (an 

employee of the Department of Veterans Affairs) 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. 1.1

 Magistrate Judge Barbara Holmes

transferred the petition to quash from the Middle District of Tennessee to 

this Court on October 5, 2020, MC ECF No. 7, and Defendants have filed a 

response in opposition to the petition, MC ECF No. 11. For the reasons 

discussed below, the Government’s petition to quash is DENIED.

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

3:20-mc-54-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 petition is one of a series of petitions or motions to question filed 

by the Government concerning Defendants’ discovery subpoenas to 

current VA employees. See United States v. 3M Company, Case No. 3:20-

mc-49-MCR-GRJ, ECF No. 1 (N.D. Fla. Sept. 2, 2020) (as to Dr. Leslie 

Schulman); United States v. 3M Company, Case No. 3:20-mc-53-MCRGRJ (N.D. Fla. Sept. 11, 2020) (as to Ms. Cheryl Parker). On October 9, 

2020, the Court entered a comprehensive order denying the Government’s 

petition to quash the subpoena to VA audiologist Dr. Schulman. In re 3M 

Combat Arms Earplug Prods. Liab. Litig., No. 3:20-mc-49, 2020 WL 

5994266, at *1 (N.D. Fla. Oct. 9, 2020) (“Schulman”). And last week, the 

Court, applying the principles discussed in Schulman, denied the 

Government’s motion to quash the subpoena of VA audiologist Ms. Parker. 

In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:20-mc-53, 2020 

WL 6065076, at *1 (N.D. Fla. Oct. 14, 2020) (“Parker”). Because much of 

the background, applicable law, and arguments addressed in Schulman, 

and now Parker, are the same as to Dr. Donaldson—and the parties are 

intimately familiar with them—the Court will not restate them unless it is 

necessary to understanding the Court’s reasoning.

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I. BACKGROUND

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. Defendants 

dispute these allegations. MDL ECF No. 959.

The Government is not a party to this litigation, MDL ECF No. 704 at 

¶¶ 16-20, but the parties have identified the United States’ various 

agencies and employees as critical sources of third-party discovery. On

August 7, 2020, Defendants sent the VA Office of the General Counsel a 

request to take the deposition of Dr. Donaldson, an audiologist at the VA 

Tennessee Valley Healthcare System in Murfreesboro, Tenn. MC ECF No. 

11-1. Defendants advised the VA that Dr. Donaldson was one of 

Bellwether Plaintiff Dustin McCombs’ medical providers in 2015. Id. at 2. 

Specifically, Dr. Donaldson completed Mr. McCombs’ compensation and 

pension examination for tinnitus on November 7, 2015. Id. at 3. 

Defendants sought to depose Ms. Parker regarding:

(i) Mr. McCombs’ compensation and pension examination for 

tinnitus on November 7, 2015; (ii) Ms. Donaldson’s records 

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relating to that compensation and pension examination (and any 

other evaluations that Ms. Donaldson conducted of Plaintiff

McCombs); (iii) Ms. Donaldson’s notes from her evaluation of 

Plaintiff McCombs; (iv) any other evaluation or treatment that Ms. 

Donaldson did of Plaintiff McCombs or appointments that Plaintiff 

McCombs had with Ms. Donaldson; (v) policies and procedures 

related to military audiological evaluations and compensation 

and pension examinations; (vi) selection, distribution, fitting, and 

training for hearing protection devices; (vii) completion of 

documents and records regarding audiological evaluations; and 

(viii) completion of documents and records regarding the 

selection, distribution, fitting, and training of patients for hearing 

protection devices.

Id. Additionally, Defendants requested that Dr. Donaldson produce: (i) 

documents concerning the November 7, 2015, examination for Plaintiff 

McCombs (as well as any other evaluations of Plaintiff McCombs by Dr. 

Donaldson); (ii) documents relating to Plaintiff McCombs’ tinnitus and his 

use of hearing protection devices; (iii) documents, communications, and 

correspondence between Plaintiff McCombs and the Tennessee Valley 

Healthcare System concerning any follow-up evaluations, appointments, or 

discussions related to the November 7, 2015, examination; (iv) written 

policies and procedures related to the diagnosis of tinnitus, audiological 

evaluations, and compensation and pension examinations; and (v) written 

policies and procedures related to the selection, distribution, fitting, and 

training for hearing protection devices. Id. at 3–4.

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On August 24, 2020, in accordance with the Court’s direction 

memorialized in Pretrial Order No. 50, Defendants issued a subpoena to 

Dr. Donaldson for an in-person deposition and the production of documents

on September 17, 2020. MC ECF No. 11-2. The subpoena is materially 

identical to Defendants’ August 7, 2020, discovery request. Id. at 10. The

VA objected to the subpoena in a letter to Defendants’ counsel, dated

September 8, 2020. MC ECF No. 11-3. Defendants served an amended 

subpoena on Dr. Donaldson, changing only the location to a remote 

deposition. MC ECF No. 11-4.

The VA’s objections are divided into three categories. First, the VA

argued that Defendants’ subpoena is unduly burdensome because it 

“would force agency counsel to spend time preparing Dr. Donaldson for her 

deposition and attending the deposition, and may also interfere with Dr. 

Donaldson’s VA responsibilities.” MC ECF No. 11-3 at 3. The VA claimed 

that any additional testimony or production by Dr. Donaldson is 

unnecessary because Plaintiff McCombs’ records, which Defendants have, 

“speak for themselves[,]” and Dr. Donaldson has no independent 

recollection of treating Plaintiff McCombs. Id. Second, the VA raised 

myriad procedural objections to Defendants’ subpoena, challenging its

breadth, notice, and cumulative impact. Id. at 3–6. Finally, the VA argued

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that Defendants’ discovery request failed to satisfy nine of the 15 factors 

enumerated in 38 C.F.R. § 14.804 for the VA to consider, which the Court 

addresses below. Id. at 6–10.

II. LEGAL STANDARD

As this Court explained in Schulman, the Government’s petition to 

quash is governed by the Housekeeping Statute (5 U.S.C. § 301), the VA’s 

Touhy regulations (38 C.F.R. § 14.800, et seq.), and the Administrative 

Procedure Act (“APA”) (5 U.S.C. § 706). 2020 WL 5994266, at **3–5; 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). In short, there are three important 

principles: (1) the Housekeeping Statute authorizes the VA to adopt 

regulations concerning testimony by agency employees and the production 

of government documents, Touhy, 340 U.S. at 463; (2) the VA considers 15 

factors set forth in § 14.804 when deciding under § 14.807 whether to 

authorize agency employees to testify or produce documents; and (3) the 

Court must determine whether the VA’s decision to authorize or preclude 

discovery from its employees is arbitrary and capricious under the APA, 

such that the agency failed to “examine[] the relevant data” or articulate “a 

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rational connection between the facts found and the choice made,” Dep’t of 

Commerce v. New York, 138 S. Ct. 2551, 2569 (2019).

III. DISCUSSION

Turning to the dispute at hand, the Government argues that the VA’s 

decision to not comply with Defendants’ subpoena to Dr. Donaldson is not 

arbitrary and capricious because the VA already produced the requested 

documents and the relevant Touhy regulations counseled against 

permitting Dr. Donaldson to sit for deposition. MC ECF No. 1 at 6–9. The 

Government argues further—seemingly in the alternative—that Defendants’ 

subpoena should be quashed under Federal Rules of Civil Procedure 26 

and 45 because it is unduly burdensome and unreasonably cumulative and 

duplicative. Id. at 9–11. Finally, the Government says Defendants’ 

subpoena should be quashed to the extent it seeks opinion or expert 

testimony prohibited under § 14.808(a). Id. at 11.

Defendants contend the VA’s decision is arbitrary and capricious 

because the VA failed to consider the relevance of the discovery sought 

from Dr. Donaldson, even in view of her assertion that she does not have 

any independent recollection of examining Plaintiff McCombs. MC ECF 

No. 11 at 3–5. For example, Dr. Donaldson can support the accuracy of 

her records, in the face of any eventual challenge by Plaintiff McCombs, by 

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testifying to her record-keeping and other professional practices. Id. at 4. 

Moreover, Defendants argue the VA’s decision to preclude document 

production by Dr. Donaldson is arbitrary and capricious because there is no 

factual basis for such a decision where the documents being sought are not 

duplicative of the medical records the VA has already produced and are not 

confidential. Id. at 7. Defendants also assert that the VA’s concerns for Dr. 

Donaldson’s workload or the VA’s relationship to the litigation fail to 

substantiate its claim of undue burden. Id. at 5–6.

Upon review of the administrative record,2 the Court concludes that 

the Government’s petition to quash is due to be denied. The VA’s decision 

to preclude discovery from Dr. Donaldson is arbitrary and capricious 

because it is not supported by any rational connection between the facts

before the agency and its reasoning. Alternatively, Defendants’ subpoena 

is not unduly burdensome or other improper under the Federal Rules of 

Civil Procedure. Finally, Defendants’ subpoena does not seek improper 

expert or opinion testimony from Dr. Donaldson.

2 “[I]n reviewing agency action, a court is ordinarily limited to evaluating the agency's 

contemporaneous explanation in light of the existing administrative record.” Dep't of 

Commerce, 139 S. Ct. at 2573.

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A. APA Review

The Government argues that the VA’s decision is not arbitrary and 

capricious because the VA considered and applied the factors set forth in

38 C.F.R. §§ 14.804(a), (b), (c), (d), (f), (i), (j), (l), and (o). MC ECF No. 1 

at 9; see also MC ECF No. 12-3 at 6–10. The VA’s conclusive reasoning 

as to Dr. Donaldson is nearly identical to that underlying the agency’s

decision to preclude discovery from Dr. Schulman and Ms. Parker. 

Compare id. (addressing Dr. Donaldson), with Case No. 3:19-mc-49-MCRGRJ, ECF No. 12-3 at 7–11 (addressing Dr. Schulman); Case No. 3:19-mc53-MCR-GRJ, ECF No. 14-3 at 7–11 (addressing Ms. Parker). 

Consequently, the result is the same. That is, the VA’s reasoning fails APA 

review because it is arbitrary and capricious.

First, the VA failed to articulate any rational basis for precluding Dr. 

Donaldson’s deposition based on her workload. Although Defendants and 

the Court are not in the position to challenge the VA’s judgment as to the 

allocation of its resources, Solomon v. Nassau Cty., 274 F.R.D. 455, 459 

(E.D.N.Y. 2011), a cursory claim that an employee is “too busy” to comply 

with a third-party discovery request is an impermissible “blanket ban on all 

requests for testimony,” Moore, 927 F.2d at 1198, which, in turn, is 

tantamount to invoking an evidentiary privilege the Government does not 

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enjoy. Even where the VA provided some explanation of an employee’s 

duties and how compliance with a subpoena would interfere with those 

duties, the Court has twice concluded the agency failed to substantiate its 

decision on this basis because there was no rational explanation as to why 

an employee’s remote deposition or production of documents could not 

take place around her work obligations and at a time convenient for her. 

Parker, 2020 WL 6065076, at *4; Schulman, 2020 WL 5994266, at *6; see 

also Rhoads v. U.S. Dep’t of Veteran Aff., 242 F. Supp. 3d 985, 994–95 

(E.D. Cal. 2017); Ceroni v. 4Front Engineered Sols., 793 F. Supp. 2d 1268, 

1278 (D. Colo. 2011).

The VA’s reasoning as to Dr. Donaldson holds less water than that 

offered in Schulman and Parker because the agency provided no

explanation of Dr. Donaldson’s duties and, relatedly, how discovery in this 

case would interfere with her work at the VA. The VA stated in its 

September 8, 2020, letter that compliance with Defendants’ subpoena 

“would force agency counsel to spend time preparing Dr. Donaldson for her 

deposition and attending the deposition, and may also interfere with Dr. 

Donaldson’s VA responsibilities.” MC ECF No. 11-3 at 3. This generalized 

assertion fails to support the notion that the VA examined the actual 

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evidence before it. 3 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Indeed, it is error for the VA to 

preclude an employee from offering third-party discovery in private litigation 

based on an employee’s workload, under § 14.804(a), without explaining 

how “the [employees] patient load, schedule, or other official duties would 

be hampered by complying with” the discovery request. OhioHealth Corp. 

v. U.S. Dep’t of Veteran Aff., No. 2:14-cv-292, 2014 WL 4660092, at *6

(S.D. Ohio Sept. 17, 2014); see also Sentinel Cap. Orlando, LLC v. 

Centennial Bank, No. 6:12-cv-785-Orl-36GJK, 2013 WL 12156678, at *6 

(M.D. Fla. Apr. 2, 2013) (the Government “may not refuse to comply with a 

subpoena by generally asserting there is a national crisis or that it cannot 

perform essential government functions”). At bottom, the VA’s decision 

lacked any rational connection to Dr. Donaldson’s workload.

Second, the VA failed to consider the relevancy of Dr. Donaldson’s

testimony notwithstanding her statement that she is unable to recall her

evaluation of Plaintiff McCombs. MC ECF No. 11-3 at 7. Defendants plan 

to question Dr. Donaldson about her records from the evaluation, her 

3 The Government says, “The VA analyzed Dr. Donaldson’s workload, including how the 

current health emergency has delayed Veteran access to care, which is further delayed 

by decreased staff, leaving more of the burden of serving the Veteran population on Dr.

Donaldson.” MC ECF No. 1 at 8. Not only is this generalized assertion still insufficient, 

this purported analysis is not found in the VA’s September 8, 2020, letter precluding 

Defendants’ discovery request.

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progress notes, and any other evaluation or treatment she provided to 

Plaintiff McCombs regarding the very injury Plaintiff McCombs asserts in 

this case. MC ECF No. 11 at 5; MC ECF No. 11-1 at 3. This testimony is 

obviously relevant to Plaintiff McCombs’ claims in this action, and—as with 

Dr. Schulman’s evaluation of Plaintiff Vernon Rowe and Ms. Parker’s 

evaluation of Plaintiff Lloyd Baker—Dr. Donaldson does not need an 

independent recollection of the evaluation to explain Plaintiff McCombs’ 

medical records or her practices as an audiologist. Parker, 2020 WL 

6065076, at *4; Schulman, 2020 WL 5994266, at **6–7; Brown v. U.S. 

Dep't of Veterans Aff., No. 2:17-cv-1181-TMP, 2017 WL 3620253, at *8 

n.12 (N.D. Ala. Aug. 22, 2017). The VA’s reasoning is also faulty because 

the agency failed to consider whether Dr. Donaldson’s testimony about 

these topics was “appropriate or necessary” under the rules governing the 

admissibility of her examination records for Plaintiff McCombs. Portaleos v. 

Shannon, No. 5:12-cv-1359-LEK-TWD, 2013 WL 4483075, at *6 (N.D.N.Y. 

Aug. 19, 2013).

Third, the VA’s conclusion that its Touhy regulations counseled 

against involving Dr. Donaldson in this litigation—by authorizing her to be 

deposed—is untenable. Parker, 2020 WL 6065076, at *4; Schulman, 2020 

WL 5994266, at **7–9. The VA’s prioritization of its “official duties” and 

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“statutory duties” in § 14.804(a) and § 14.804(b) does not grant the VA an 

absolute evidentiary privilege from third-party discovery requests not 

enjoyed by other disinterested witness, and authorizing Dr. Donaldson’s

factual testimony does not result in the appearance that the VA is 

endorsing one party over the other in this private litigation. Brown, 2017 

WL 3620253, at *8; see also In re Vioxx Prods. Liab. Litig., 235 F.R.D. 334, 

346 (E.D. La. 2006) (the Government’s production “of a fact witness for a 

single deposition does not make [the agency] a part of this litigation”). 

Moreover, and contrary to the VA’s reasoning, MC ECF No. 11-3 at 8, 

Defendants’ request for Dr. Donaldson to produce documents is not 

“unduly burdensome or otherwise inappropriate,” § 14.804(d), because 

Defendants are seeking only “additional documents concerning [Plaintiff] 

McCombs in [Dr. Donaldson’s] possession,” MC ECF No. 11 at 7, that are 

not in the VA medical records, as well as relevant VA policies that the 

Government, notably, does not claim were already subject to discovery.

In sum, the Court concludes the VA’s decision to not comply with 

Defendants’ subpoena to Dr. Donaldson is arbitrary and capricious. The 

VA ignored relevant, undisputed facts in the administrative record and 

failed to offer a rational connection between other facts and its decision to 

not authorize Dr. Donaldson to testify or produce documents.

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B. Federal Rules of Civil Procedure

The Government’s reliance on the Federal Rules of Civil Procedure 

fares no better.4 The Court must quash a subpoena that “subjects a 

person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iv). The 

Government, as the movant seeking to quash the subpoena, bears the 

burden of proof on this issue. In re Application of Mesa Power Grp., LLC, 

878 F. Supp. 2d 1296, 1306 (S.D. Fla. 2012); Fadalla v. Life Auto. Prods., 

Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007). Courts consider a variety of 

factors to determine whether a subpoena is unduly burdensome—the 

relevance of the information requested, the requesting party’s need for 

discovery, the breadth of the request, the time period covered, the 

particularity of the request, and the burden imposed—but it is typically 

required that the movant submit an affidavit or other evidence revealing the 

nature of the asserted burden. Andra Grp., LP v. JDA Software Grp., Inc., 

312 F.R.D. 444, 449 (N.D. Tex. 2015); see also John v. Keller Williams 

Realty, Inc., No. 6:19-cv-1347-Orl-40DCI, 2019 WL 7482200, at *2 (M.D. 

Fla. Nov. 19, 2019) (“Claims of undue burden should be supported by a 

4 Although the Court must apply the APA’s arbitrary and capricious to disputes such as 

this, the Court will address these arguments because it leads to the same result.

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statement (generally an affidavit) with specific information demonstrating 

how the request is overly burdensome.”).

Here, the Government has not presented an affidavit or other 

evidence in support of its claim of undue burden. This alone is a basis to 

reject the Government’s claim. Green v. Cosby, 152 F. Supp. 3d 31, 37 (D. 

Mass. 2015). Nevertheless, the Court has considered the evidence 

proffered by the Government regarding Dr. Donaldson’s employment, her 

inability to independently recall Plaintiff McCombs’ examination, and the 

prior records concerning Plaintiff McCombs’ treatment that the VA has 

produced to the parties. The Court concludes that Defendants’ subpoena 

does not present an undue burden on the VA or Dr. Donaldson. Parker,

2020 WL 6065076, at **4–5; Schulman, 2020 WL 5994266, at *8. 

Defendants have asked Dr. Donaldson to attend a brief, remote deposition 

to testify to her area of expertise and a past evaluation of Plaintiff 

McCombs. Compliance may be an inconvenience for Dr. Donaldson, but 

this is no different than a subpoena to a non-party treating physician or 

healthcare worker in any other personal injury case.

Defendants’ subpoena is not otherwise improper under the Federal 

Rules of Civil Procedure. The subpoena does not seek “unreasonably 

cumulative or duplicative” discovery, Fed. R. Civ. P. 26(b)(2)(C), because it 

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is clear that Defendants are asking Dr. Donaldson to produce only

documents she may have that were not already produced in Plaintiff 

McCombs’ medical records. Schulman, 2020 WL 5994266, at *8.

In sum, the Government's petition to quash Defendants' subpoena of 

Dr. Donaldson is due to be denied because it is not unduly burdensome

and does not seek unreasonably cumulative or duplicative discovery.

C. Expert or Opinion Testimony

Lastly, the Court is not persuaded that Defendants’ subpoena calls 

for Dr. Donaldson to offer expert or opinion testimony barred under § 

14.808. MC ECF No. 1 at 11. This is a well-established restriction in the 

VA’s Touhy regulations, but the Government, like the VA before it, does not

provide any factual basis for the claim that Defendants intend to take such 

testimony. Brown, 2017 WL 3620253, at *6; see also MC ECF No. 11-3 at

5.

IV. CONCLUSION

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

MC ECF No. 1, is DENIED. Defendants must serve a copy of this order by 

email on Jacqui Snead at the Department of Justice, Shaquana L. Cooper 

at the VA Office of the General Counsel, and Plaintiffs’ Lead Counsel Bryan 

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F. Aylstock.

DONE AND ORDERED this 19th day of October 2020.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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