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-55

_________________________________/

ORDER

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

Defendants’ non-party deposition subpoena to Mr. Andy Toyama (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. 1.1

 Magistrate Judge Rom A. Trader

transferred the motion to quash from the District of Hawaii to this Court on 

October 5, 2020, MC ECF No. 15, and Defendants have filed a response in 

opposition to the motion, MC ECF No. 19. For the reasons discussed 

below, the Government’s motion is DENIED.

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

3:20-mc-55-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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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”). More specifically:

Plaintiffs assert state law claims for negligence and strict product 

liability based on design defect and failure-to-warn theories, as 

well as warranty, misrepresentation, fraud, gross negligence, 

negligence per se, and consumer-protection claims. Plaintiffs’ 

design defect claims target two features of the CAEv2, alleging 

that: (1) its stem was too short for certain users—primarily those 

with medium to large ear canals—to insert the device deeply 

enough into their ears to obtain the airtight seal necessary to 

provide hearing protection; and (2) when the earplug was 

inserted according to standard fitting instructions, the positioning 

of the opposing flanges relative to the outer ear caused the basal 

edge of the third flange of the non-inserted side of the earplug to 

press against some users’ ear canal openings and fold up, 

causing imperceptible loosening of the seal, which, they claim, 

results in little to no hearing protection for the user. Plaintiffs’ 

failure-to-warn claims are based on allegations that Defendants 

failed to provide warnings regarding the alleged dangers inherent

in the use of the CAEv2.

MDL ECF No. 1280 at 16–17. 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 its relationship to this matter is undeniable. The docket 

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reflects litigation between the parties over the discoverability of government 

records, see, e.g., MDL ECF Nos. 977, 1154, 1258, and, until recently, 

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).

Consequently, the parties have identified the United States’ various 

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

Relevant here, on August 27, 2020, Defendants sent the United States 

Army Major Nicole Kim, on behalf of the Department of Defense, a request 

to take the deposition of Mr. Toyama, an audiology technician who 

Defendants say “was involved in hearing conservation appointments that 

Plaintiff Lewis C. Keefer, Jr. attended at or near Schofield Barracks from 

2012 through 2014.” MC ECF No. 19-1 at 2. Defendants sought to depose 

Mr. Toyama regarding: “(i) Plaintiff Keefer’s exposure to noise; (ii) Plaintiff’s 

Keefer’s alleged hearing loss/tinnitus injuries; (iii) Plaintiff Keefer’s use of

hearing protection devices, including the CAEv2; and (iv) the policies and 

practices regarding hearing protection devices in Plaintiff Keefer’s units.” 

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Id. at 3. Defendants explained this testimony was relevant “to address 

Plaintiff Keefer’s allegations that his hearing was injured due to use of the

CAEv2 and to the extent/severity of his alleged injuries.” Id. at 4. 

Additionally, Defendants requested that Mr. Toyama produce all 

documents, communications, and correspondence concerning Plaintiff 

Keefer, his exposure to noise, his hearing conservation appointments and 

testing, and his selection, fitting, and use of hearing protection devices. Id.

at 3.

That same day, in accordance with Pretrial Order No. 50, MDL ECF 

No. 1340, Defendants issued a subpoena to Mr. Toyama. That subpoena 

was never served because, on September 2, 2020, Defendants issued two 

amended subpoenas (one for Mr. Toyama’s remote deposition on 

September 16, 2020, and the other for the production of documents). MC 

ECF Nos. 19-2, 19-3. The Department responded to Defendants’ 

subpoena duces tecum on September 11, 2020, without objection, stating 

that Mr. Toyama did not have responsive documents to produce. MC ECF 

No. 19-4.

On September 15, 2020, however, the Department objected to the 

deposition subpoena in a comprehensive letter to Defendants’ counsel. 

MC ECF No. 19-5. The Department raised several procedural objections to 

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Defendants’ subpoena, including that it did not allow a reasonable time to 

comply, sought publicly available information, and failed to identify the 

topics for deposition. Id. at 2–4. The Department also challenged the 

subpoenas as unduly burdensome in this case and asserted its potential 

cumulative impact would be “disruptive to the agency’s functioning.” Id. at 

3–5. Finally, the Department argued that Defendants’ request to take Mr. 

Toyama’s deposition failed to satisfy the factors enumerated in 32 C.F.R. § 

97.6(b) for the Department to consider when authorizing third-party 

discovery from its employees, which the Court addresses below. Id. at 5–

6. That same day, the Government, on behalf of the Department of 

Defense, filed a motion to quash Defendants’ deposition subpoena, MC 

ECF No. 1, and supporting memorandum, MC ECF No. 1-1.

II. THE HOUSEKEEPING STATUTE, TOUHY, AND THE 

ADMINISTRATIVE PROCEDURE ACT

Before reaching the Government’s motion, Defendants’ response, 

and the merits of the arguments raised therein, the Court must explain the 

groundwork for deciding whether to quash Defendants’ subpoena. 

Typically, the Federal Rules of Civil Procedure—specifically Rule 45—

govern the production of third-party discovery and objections thereto. Fed. 

R. Civ. P. 45; Citizens Union of City of New York v. Attorney Gen. of N.Y., 

269 F. Supp. 3d 124, 138 (S.D.N.Y. 2017). Not so here because the 

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subject third-party is a current government employee. Instead, the Court 

must look to numerous federal statutes and regulations, beginning with the 

Housekeeping Statute, 5 U.S.C. § 301.

The Housekeeping Statute authorizes “the head of an Executive 

department or military department” to “prescribe regulations for the 

government of his department, the conduct of its employees, the 

distribution and performance of its business, and the custody, use, and 

preservation of its records, papers, and property.” 5 U.S.C. § 301. The 

antecedents of § 301, however, “go back to the beginning of the Republic, 

when statutes were enacted to give heads of early Government 

departments authority to govern internal department affairs.” Chrysler 

Corp. v. Brown, 441 U.S. 281, 309 (1979). Congress first enacted 

housekeeping statutes in 1789 “to help General Washington get his 

administration underway by spelling out the authority for executive officials 

to set up offices and file government documents.” H.R. Rep. No. 85-1461 

(1958), reprinted in 1958 U.S.C.C.A.N. 3352. “Those laws were 

consolidated into one statute in 1874[,] and the current version of the 

statute was enacted in 1958.” Chrysler Corp., 441 U.S. at 309.

In 1951, the Supreme Court looked to the Housekeeping Statute to 

determine whether the Attorney General properly issued a regulation 

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prohibiting a subordinate official of the Department of Justice from obeying 

a subpoena duces tecum ordering the production of records in his

possession. Touhy, 340 U.S. at 463. The Court held the regulation was 

valid because the Housekeeping Statute authorized the Attorney General 

“to prescribe regulations not inconsistent with the law for the custody, use, 

and preservation of the records, papers, and property appertaining to the 

Department of Justice[.]” Id. at 468.

The Supreme Court’s holding prompted federal agencies to adopt socalled “Touhy regulations” concerning testimony by agency employees and 

the production of government documents. Moore v. Armour Pharm. Co., 

927 F.2d 1194, 1197 (11th Cir. 1991); 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). The Department of Defense’s Touhy regulations are codified at 

32 C.F.R. § 97.1, et seq., which provide in pertinent part:

In response to a litigation request or demand for official DoD 

information or the testimony of DoD personnel as witnesses, the 

General Counsels of DoD, Navy, and the Defense Agencies; the 

Judge Advocates General of the Military Departments; and the 

Chief Legal Advisors to the JCS and the Unified and Specified 

Commands, with regard to their respective Components, are 

authorized—after consulting and coordinating with the 

appropriate Department of Justice litigation attorneys, as 

required—to determine whether official information originated by 

the Component may be released in litigation; whether DoD 

personnel assigned to or affiliated with the Component may be 

interviewed, contacted, or used as witnesses concerning official 

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DoD information or as expert witnesses; and what, if any, 

conditions will be imposed upon such release, interview, contact, 

or testimony. Delegation of this authority, to include the authority 

to invoke appropriate claims of privilege before any tribunal, is 

permitted.

32 C.F.R. § 97.6(a). “[T]he individual seeking such release or testimony 

must set forth, in writing and with as much specificity as possible, the 

nature and relevance of the official information sought.” 32 C.F.R. § 

97.6(c)(2). The Department defines “official information” as:

All information of any kind, however stored, that is in the custody 

and control of the Department of Defense, relates to information 

in the custody and control of the Department, or was acquired by 

DoD personnel as part of their official duties or because of their 

official status within the Department while such personnel were 

employed by or on behalf of the Department or on active duty 

with the United States Armed Force

32 C.F.R. § 97.3(d). 

When deciding whether to authorize the release of official information 

or testimony, the Department “should consider the following ... factors”: 

(1) Whether the request or demand is unduly burdensome or 

otherwise inappropriate under the applicable court rules; 

(2) Whether the disclosure, including release in camera, is 

appropriate under the rules of procedure governing the case or 

matter in which the request or demand arose; 

(3) Whether the disclosure would violate a statute, executive 

order, regulation, or directive; 

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(4) Whether the disclosure, including release in camera, is 

appropriate or necessary under the relevant substantive law 

concerning privilege; 

(5) Whether the disclosure, except when in camera and 

necessary to assert a claim of privilege, would reveal information 

properly classified pursuant to DoD 5200.1-R, “Information 

Security Program Regulation,” August 1982; unclassified 

technical data withheld from public release pursuant to DoD 

Directive 5230.25, “Withholding of Unclassified Technical Data 

from Public Disclosure,” November 6, 1984; or other matters 

exempt from unrestricted disclosure; and, 

(6) Whether disclosure would interfere with ongoing enforcement 

proceedings, compromise constitutional rights, reveal the identity 

of an intelligence source or confidential informant, disclose trade 

secrets or similarly confidential commercial or financial 

information, or otherwise be inappropriate under the 

circumstances. 

32 C.F.R. § 97.6(b).

Nevertheless, Touhy did not create or endorse an executive privilege 

for federal agencies to resist entirely discovery efforts by private parties. 

N.L.R.B. v. Capitol Fish Co., 294 F.2d 868, 875 (5th Cir. 1961).2 Only two 

years after Touhy, the Supreme Court emphasized that “[j]udicial control 

over the evidence in a case cannot be abdicated to the caprice of executive 

officers.” United States v. Reynolds, 345 U.S. 1, 9–10 (1953). What’s 

more, Congress amended the Housekeeping Statute in 1958 to include the 

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the 

Eleventh Circuit adopted as precedent the decisions of the former Fifth Circuit decided 

prior to October 1, 1981.

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following limitation: “This section does not authorize withholding information 

from the public or limiting the availability of records to the public.” 5 U.S.C. 

§ 301; see also Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 

777–78 (9th Cir. 1994) (discussing the 1958 amendment to the 

Housekeeping Statute).

Because the Government does not have unfettered discretion to 

withhold discovery from federal litigants (either in the form of records or 

testimony), the Government’s application of Touhy regulations does not 

escape judicial review. The Eleventh Circuit, however, cabins such review 

to the Administrative Procedure Act (“APA”) rather than Federal Rule of 

Civil Procedure 45. Moore, 927 F.2d at 1197.3 Generally speaking, the 

APA provides two types of challenges for a dissatisfied party to seek 

redress in federal court. 5 U.S.C. § 706. First, when presented with a 

complaint of agency inaction, a reviewing court may “compel agency action 

unlawfully withheld or unreasonably delayed.” § 706(1). Second, a 

reviewing court may set aside a final agency action that it concludes is 

“arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with the law[,]” in addition to other reasons. § 706(2).

3 This standard of review is the subject of a circuit split. Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 2463.2 (3d ed.).

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The scope of review under § 706(2) is narrow and requires only 

reasoned decisionmaking by the Government. Dep’t of Homeland Sec. v. 

Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020). The Court must 

“determine only whether [the Government] examined the relevant data and 

articulated a satisfactory explanation for his decision, including a rational 

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

Commerce v. New York, 139 S. Ct. 2551, 2569 (2019).

III. DISCUSSION

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

Department’s decision to preclude Mr. Toyama’s deposition is not arbitrary 

and capricious because the Department produced all of the records in its 

possession related to Mr. Toyama’s evaluation of Plaintiff Keefer, Mr. 

Toyama has no independent recollection of the Plaintiff Keefer, and 

requiring a deposition would take Mr. Toyama away from “his important 

responsibilities assisting in the medical readiness of soldiers ... preparing 

for deployments and other military missions.” MC ECF No. 1-1 at 4. The 

Government argues—seemingly in the alternative—that Defendants’ 

subpoena should be quashed under Federal Rules of Civil Procedure 26 

and 45 because it is unduly burdensome, seeks unreasonably cumulative 

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or duplicative discovery, and failed to allow a reasonable time to comply. 

Id. at 4–7.

Defendants argue that the Department’s decision to preclude Mr. 

Toyama’s deposition is arbitrary and capricious. MC ECF No. 19. They 

contend that the Department’s production of Plaintiff Keefer’s medical 

records and Mr. Toyama’s failure to recall Plaintiff Keefer’s evaluations 

should not excuse his deposition because his testimony is “necessary to 

explain the significance of some of the notations [Mr.] Toyama made on 

[Plaintiff] Keefer’s audiogram records.” Id. at 3. For example, Plaintiff 

Keefer has attempted to use in this litigation Mr. Toyama’s notes and 

remarks on his audiogram forms to prove use of the CAEv2. Id. at 3–4. 

Moreover, Defendants say that Mr. Toyama’s testimony is relevant to their 

statute of limitations defense because they plan to examine whether he told 

Plaintiff Keefer the results of his 2012 audiogram, which documented a 

“significant threshold shift” in his left ear compared to a 2007 audiogram. 

Id. at 4. Defendants also argue that the subpoena is not unduly 

burdensome because any burden to prepare for and attend a remote 

deposition is particularly minimal. Id. at 5.

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Upon review of the administrative record,4 the Court concludes that 

the Government’s motion to quash is due to be denied. Although there is 

no dispute that the Department considered the relevant Touhy regulations, 

it failed to articulate a rational connection between the facts before it and its 

decision to preclude Mr. Toyama’s deposition. Alternatively, Defendants’ 

subpoena is not unduly burdensome or otherwise improper under the 

Federal Rules of Civil Procedure.

A. APA Review

In deciding whether to authorize Mr. Toyama’s deposition in this 

case, the Department considered whether compliance would be unduly 

burdensome and appropriate under court rules, 32 C.F.R. § 97.6(b)(1), MC 

ECF No. 19-5 at 5–6, but the Government focuses exclusively on the 

purported burden to the Department, MC ECF No. 1-1 at 4. The 

Government addresses, namely, the potential disruption to Mr. Toyama’s

duties and his failure to independently recall evaluating Plaintiff Keefer. Id. 

These reasons are inapt and fail to substantiate the Department’s decision.

4 “[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. To the best of the Court’s knowledge, the Government’s 

motion and Defendants’ response do not present extra-record material that was not 

considered by the Department of Defense.

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Disruption to Mr. Toyama’s duties. Defendants and the Court are not 

in the position to challenge the Department’s assertion that Mr. Toyama “is 

responsible for medically examining soldiers who are preparing for 

deployments and other military missions.” MC ECF No. 19-5 at 3. And 

there is no doubt that requiring Mr. Toyama’s deposition may result in some 

disruption to his duties “during a time of telework and shutdowns caused by 

the ongoing [COVID-19] pandemic.” MC ECF No. 1-1 at 4. Nevertheless, 

the Department’s decision to preclude Mr. Toyama’s deposition because it 

may interfere with his work is irrational.

First, the Department’s reasoning—whether applied only to Mr. 

Toyama or, as the Department suggests, in the aggregate to all similarly 

situated employees—cannot overcome the public’s right to the type of 

“every man’s evidence” in issue here. Trump v. Vance, 140 S. Ct. 2412, 

2420 (2020). If it did, the review process for federal courts would be 

illusory, and agency action would go unchecked. That is, every agency 

could claim an employee is “too busy” to participate in discovery, and the 

requesting party would have little, if any, room to refute this contention for 

the Court to undertake meaningful review. Instead, this type of reasoning 

should be exceptional because it invites an impermissible “blanket ban on 

all requests for testimony,” Moore, 927 F.2d at 1198, which is tantamount 

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to an evidentiary privilege that the Government does not enjoy. At bottom, 

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.” 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); see also In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 

3:20-mc-53, 2020 WL 6065076, at *4 (N.D. Fla. Oct. 14, 2020) (“Parker”);

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”).

Second, the Department has not demonstrated that it would be an 

undue burden on Mr. Toyama’s duties (or the Department itself) to 

authorize his deposition.5 The Department offered mostly generalized 

statements about the nature of depositions in any litigation. See, e.g., MC 

ECF No. 19-5 at 3 (“[D]epositions are usually the most burdensome means 

of obtaining facts in litigation.” (emphasis added)). In the same vein, the 

Department failed to explain with any specificity how discovery in this case 

would interfere with Mr. Toyama’s work. At best, it advised Defendants 

5 The Court emphasizes the qualifier “undue” because that is what the Department’s 

Touhy regulations require the agency to consider. See 32 C.F.R. § 97.6(b)(1) (“Whether 

the request or demand is unduly burdensome or other inappropriate under the applicable

court rules[.]”).

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their subpoena is “unreasonable and unduly burdensome because it seeks 

to take Mr. Toyama from these important responsibilities to the detriment of 

the readiness of the military.” Id. This sweeping statement, which does

nothing to explain Mr. Toyama’s workload or schedule, is insufficient to 

survive APA review because it does not evince any effort by the 

Department to examine the actual evidence before it. 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 In re 3M Combat Arms Earplug Prods. Liab. 

Litig., No. 3:20-mc-54, 2020 WL 6140561, at *4 (N.D. Fla. Oct. 19, 2020) 

(“Donaldson”). The fact that any time may be required by Mr. Toyama to 

prepare for or attend a deposition is not a cognizable burden—let alone an 

undue burden—on the Department.

Lastly, the Department’s reasoning blinks reality. It is common for 

individuals with time-consuming professions to be the subject of discovery. 

Mr. Toyama is no exception, but the Court suspects he does not work all 

the time. Yet, the Department failed to offer any rational explanation as to 

why Mr. Toyama’s remote deposition or production could not take place 

around his work obligations and at a time convenient for him. Although this 

Court must defer to the Department’s judgment as to “the time and effort 

involved in preparing the employees for their depositions and testimony 

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and how that time commitment might hamper their ability to fulfill their 

duties,” Solomon v. Nassau Cty., 274 F.R.D. 455, 459 (E.D.N.Y. 2011),6 its

failure to consider accommodation for a brief deposition was error. 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); see also Schulman, 2020 WL 5994266, at *6.

Mr. Toyama inability to recall his evaluations of Plaintiff Keefer. The

Government argues the Department’s decision is appropriate because Mr. 

Toyama “has no independent recollection of [Plaintiff Keefer]” and, thus, 

“there is little or nothing that a deposition would add.” MC ECF No. 1-1 at 

4. This reasoning ignores critical facts about the asserted scope of 

Defendants’ deposition. Defendants plan to question Mr. Toyama about 

“the significance of some of the notations [Mr.] Toyama made on [Plaintiff] 

Keefer’s audiogram records,” which are relevant to Plaintiff Keefer’s claims 

and Defendants’ statute of limitations defense. MC ECF No. 19 at 3–4. 

Mr. Toyama does not need an independent recollection of his evaluations 

to explain Plaintiff Keefer’s medical records or his practices as an audiology 

6 See also COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 278 (4th Cir. 1999) (“When 

an agency is not a party to an action, its choice of whether or not to comply with a thirdparty subpoena is essentially a policy decision about the best use of the agency's 

resources.”).

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technician. 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); see also 

Schulman, 2020 WL 5994266 at **6–7.

The Department’s proposed alternatives. To the extent the 

Government relies on the Department’s past production of medical records 

and its offer to provide a declaration from Mr. Toyama in lieu of authorizing 

his deposition, MC ECF No. 1-1 at 6; MC ECF No. 19-5 at 4, 6, that 

reasoning is arbitrary and capricious. As explained above, Defendants 

sought to depose Mr. Toyama on more than just Plaintiff Keefer’s 

evaluation results and the information readily available in his medical 

records. If there is any overlap between the documents and Mr. Toyama’s 

anticipated testimony, the documents cannot express Mr. Toyama’s 

testimony “with the clarity and tone as he personally can in his deposition.” 

In re Vioxx Prods. Liab. Litig., 235 F.R.D. 334, 346 (E.D. La. 2006). 

Additionally, “[a] declaration is simply not an adequate substitute for live 

testimony, such as a deposition.” Cavanaugh v. Wainstein, No. 05-123 

(GK), 2007 WL 1601723, at *10 (D.D.C. June 4, 2007). “[S]uch an 

approach eschews the opportunity for opposing counsel to probe the 

veracity and contours of the statements,” and “counsel propounding the ... 

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question is denied the opportunity to ask probative follow-up questions.” 

Alexander v. F.B.I., 168 F.R.D. 113, 121 (D.D.C. 1998).

In sum, the Court concludes the Department’s decision to preclude 

Mr. Toyama’s deposition is arbitrary and capricious because it is not 

supported by the administrative record. The Department failed to examine 

critical facts as to the relevance of Mr. Toyama’s deposition, other than that 

he lacked an independent recollection of Plaintiff Keefer. The Department, 

instead, relied on generalized assertions concerning Mr. Toyama’s 

responsibilities and the burden of third-party discovery, which does not 

comport with the Department’s Touhy regulations that require it to consider 

whether compliance would be an undue burden. Finally, the Department 

placed inordinate emphasis on the production of Plaintiff Keefer’s medical 

records and its offer to make available a declaration from Mr. Toyama in 

lieu of the requested deposition.

B. Federal Rules of Civil Procedure

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

fares no better.7

 The Court must quash a subpoena that “subjects a 

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

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

this until the Eleventh Circuit or United States Supreme Court says otherwise, the Court 

will address these arguments because it leads to the same result as APA review.

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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 

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 Mr. Toyama’s employment, his

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inability to independently recall Plaintiff’s evaluations, and any “cumulative 

impact” compliance would have on the Department of Defense, MC ECF 

No. 1-1 at 6–7, and concludes that Defendants’ subpoena does not present 

an undue burden on the Department or Mr. Toyama. Defendants have 

asked Mr. Toyama to attend a brief, remote deposition so he may testify to 

his area of expertise as an audiology technician and explain his notations in 

Plaintiff Keefer’s medical records. Compliance may be an inconvenience 

for Mr. Toyama, but this is no different from a Rule 45 deposition subpoena 

issued to any non-party.

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

Defendants plan to depose Mr. Toyama on matters not readily apparent in 

Plaintiff Keefer’s medical records. To the extent there may be any overlap 

between Plaintiff Keefer’s records and Mr. Toyama’s testimony, it is not so 

unreasonable as to warrant quashing the subpoena.

Lastly, the subpoena gave the Department and Mr. Toyama “a 

reasonable time to comply.” Fed. R. Civ. P. 45(d)(3)(A)(i). This Court has 

held that this rule “does not specify what constitutes a reasonable time to 

comply.” Minor I Doe through Parent I Doe v. School Bd. for Santa Rosa 

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Cty., Fla., No. 3:08-cv-361-MCR-EMT, 2009 WL 10674249, at *2 (N.D. Fla. 

Nov. 23, 2009). Instead, “common sense dictates that reasonableness is 

determined in relation to the extent of the materials requested and other 

underlying circumstances in the case.” Id. Here, the subpoena required a 

brief remote deposition more than one week after the service date, to be 

exact seven business days. It is obvious that the Department was able to 

respond to the merits of Defendants’ subpoena before the return date 

because it sent Defendants a comprehensive letter with its position on 

September 15, 2020. MC ECF No. 19-5. Indeed, the Government’s 

argument is not well taken because, as explained above, the Department 

did not make any effort to accommodate Defendants’ request or seek an 

extension of time for compliance.

In sum, the Government’s motion to quash Defendants’ subpoena

under the Federal Rules of Civil Procedure is due to be denied because the 

subpoena is not unduly burdensome, does not seek unreasonably 

cumulative or duplicative discovery, and allowed Mr. Toyama and the 

Department of Defense a reasonable time to comply.

IV. CONCLUSION

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

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

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email on Jacqui Snead at the Department of Justice, United States Army 

Major Nicole M. Kim, and Plaintiffs’ Lead Counsel Bryan F. Aylstock.

DONE AND ORDERED this 26th day of October 2020.

s/Gary R. Jones GARY R. JONES

 United States Magistrate Judge

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