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-53

_________________________________/

ORDER

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

Defendants’ non-party deposition subpoena to Ms. Cheryl Parker (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 Judge Richard Gergel transferred 

the motion to quash from the District of South Carolina to this Court on 

October 5, 2020, MC ECF No. 9, and Defendants have filed a response in 

opposition to the motion, MC ECF No. 14. 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-53-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 motion 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-54-MCRGRJ (N.D. Fla. Sept. 18, 2020) (as to Dr. Jodee Donaldson). Last week, 

the Court entered a comprehensive order denying the Government’s 

petition to quash a subpoena to VA audiologist Dr. Leslie 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”). Because much of the 

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

same as to Ms. Parker—and the parties are intimately familiar with them—

the Court will not restate them unless it is necessary to understanding the 

Court’s reasoning.

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 

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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

July 28, 2020, Defendants sent the VA Office of the General Counsel a 

request to take the deposition of Ms. Parker, an audiologist at the Ralph H. 

Johnson VA Medical Center in Charleston, S.C. MC ECF No. 14-1. 

Defendants stated that Ms. Parker’s testimony was relevant because she 

conducted “at least one audiogram and hearing evaluation on Bellwether 

Plaintiff Lloyd Eugene Baker, including in October 2009 in connection with 

his application to the VA for disability benefits.” Id. at 2. Defendants 

sought to depose Ms. Parker regarding:

(i) the October 2009 hearing evaluation and audiogram 

appointment with Plaintiff Baker, and Dr. Parker’s records 

relating to that evaluation (and any other hearing evaluations and 

audiograms that Dr. Parker conducted of Plaintiff Baker); (ii) Dr. 

Parker’s notes from her evaluation(s) of Plaintiff Baker; (iii) Dr. 

Parker’s evaluation of the October 2009 audiogram and 

associated notes; and (iv) any other evaluation or treatment that 

Dr. Parker did of Plaintiff Baker or appointments that Plaintiff 

Baker had with Dr. Parker.

Id. at 3.

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On August 19, 2020, in accordance with the Court’s direction 

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

Ms. Parker for an in-person or remote deposition on September 14, 2020. 

MC ECF No. 14-2. The VA objected to the subpoena in a letter to 

Defendants’ counsel, dated September 8, 2020. MC ECF No. 14-3. 

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

the VA argued that Defendants’ subpoena is unduly burdensome because 

removing Ms. Parker, a “mission-essential employee,” from her duties on 

the VA’s “COVID response team”— which the VA described as an “integral” 

group “responsible for daily communications with and the reporting of those 

VA employees that have been have been tested or need to be tested for 

COVID, have tested positive for COVID, and/or have experienced COVID 

related symptoms”—would be “detrimental” to the VA and its COVID 

response operations[.]” Id. at 3–4. In the same vein, the VA claimed that 

Ms. Parker’s deposition is unnecessary because Defendants have Plaintiff 

Baker’s treatment records, and Ms. Parker has no independent recollection 

of treating Plaintiff Baker. Id. Second, the VA raised myriad procedural 

objections to Defendants’ subpoena, challenging its breadth, notice,

service, and cumulative impact. Id. at 4–6. Finally, the VA argued that 

Defendants’ request to depose Ms. Parker failed to satisfy nine of the 15 

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

Court addresses below. Id. at 6–11.

II. LEGAL STANDARD

As this Court explained in Schulman, the Government’s motion 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). Schulman, 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 rational connection between the facts found and the choice 

made,” Dep’t of Commerce v. New York, 138 S. Ct. 2551, 2569 (2019).

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III. DISCUSSION

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

subpoena to Ms. Parker should be quashed because Defendants failed to 

comply with the VA’s Touhy regulations, the VA’s decision to preclude Ms. 

Parker’s deposition is not arbitrary and capricious, and the proposed 

deposition is unduly burdensome under Rule 45. ECF No. 1 at 3–7. 

Defendants say that they complied with the VA’s Touhy regulations by 

providing the VA a written summary of the information sought and its 

relevance to these proceedings, that the VA’s decision to preclude Ms. 

Parker’s deposition is arbitrary and capricious because the agency failed to 

consider the relevance of her testimony, and that the subpoena does not 

impose any undue burden on Ms. Parker. ECF No. 14 at 3–6. Upon 

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

Government’s motion to quash is due to be denied. The Court will address 

each of the Government’s arguments in turn.

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. 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 VA.

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A. The Written Summary Requirement

As a preliminary matter, the Government contends that Defendants’ 

subpoena should be quashed because it does not comply with the VA’s 

Touhy regulations. MC ECF No. 1 at 4–6. Specifically, the VA requires

that a “request or demand for testimony or production of documents” be

in, or accompanied by, a written statement by the party seeking 

the testimony or records or by the party's attorney, a summary of 

the nature and relevance of the testimony or records sought in 

the legal proceedings containing sufficient information for the 

responsible VA official to determine whether VA personnel 

should be allowed to testify or records should be produced.

38 C.F.R. § 14.805. At first blush, the Government’s argument has some 

traction. However, this argument fails on both the law and the applicable 

facts.

For starters, the Court is not persuaded that the VA enjoys a right 

under § 14.805 to deny an otherwise valid Touhy request—or, in this case, 

to move to quash a subpoena of an employee—because the requesting 

party did not provide the written statement contemplated by the regulation. 

The regulation tells the VA how it should proceed when a written statement 

is not provided. See 38 C.F.R. § 14.805 (“Where the materials are 

considered insufficient to make the determination as described in § 14.807, 

the responsible VA official may ask the requester to provide additional 

information.”). Notably absent is what occurred here, the denial of the 

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Touhy request and a motion to quash a subpoena because the request or 

demand was supposedly insufficient. The Government’s offered 

interpretation of § 14.805, therefore, seems implausible.

In any event, Defendants’ complied with this regulation because their 

initial July 28, 2020, Touhy request provided the VA a summary of this 

litigation, Ms. Parker’s relation to Plaintiff Baker’s case, and the topics for 

deposition. MC ECF No. 14-1 at 2–3. The mere fact that Defendants did 

not provide the same explanation to the VA with their subpoena is 

inconsequential because Defendants had sufficient information from the 

July 28, 2020, Touhy request to make the determination described in § 

14.807. See Brown v. U.S. Dep’t of Veterans Aff., No. 2:17-cv-1181-TMP, 

2017 WL 3620253, at *6 (N.D. Ala. Aug. 22, 2017) (“The combination of the 

letter, the attached subpoena, and email correspondence plainly notified 

the VA of the nature of the information sought from Dr. Khan and the 

reasons it was needed....The VA had enough information before it to apply 

the factors enumerated in § 14.804 and make a decision regarding the 

testimony of Dr. Khan.”). Indeed, the VA referred to Defendants’ July 28, 

2020, letter and their explanations in the agency’s decision to preclude Ms. 

Parker’s deposition. MC ECF No. 14-3 at 2. The Court, therefore, will not 

quash Defendants’ subpoena on this basis.

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B. 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 3–4; see also MC ECF No. 14-3 at 7–11. The VA’s conclusive reasoning 

as to Ms. Parker is nearly identical to that underlying the agency’s decision 

to preclude Dr. Schulman’s deposition. Compare id. (addressing Ms. 

Parker), with Case No. 3:19-mc-49-MCR-GRJ, ECF No. 12-3 at 7–11. The 

only material differences are that Ms. Parker is part of a COVID response 

team, and her evaluation of Plaintiff Baker took place 11 years ago. 

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

review because it is arbitrary and capricious.

First, the VA’s decision to withhold Ms. Parker’s testimony based on 

her workload is irrational. Schulman, 2020 WL 5994266 at *6. Although 

Defendants and the Court are not in the position to challenge the VA’s 

assertion that Ms. Parker has a mission-essential role at the VA or the 

agency’s judgment as to the allocation of its resources, Solomon v. Nassau 

Cty., 274 F.R.D. 455, 459 (E.D.N.Y. 2011), the claim that she is “too busy”

as part of the VA’s COVID response team is essentially an impermissible 

“blanket ban on all requests for testimony,” Moore, 927 F.2d at 1198, which 

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is tantamount to an evidentiary privilege the Government does not enjoy. 

This is because the VA only offered the conclusory assertion that the time 

spent preparing Ms. Parker for deposition and the time spent in her 

deposition would “equate to hours and days away from her mission-critical 

position[.]” MC ECF No. 14-3 at 8. Indeed, the VA failed to offer any 

rational explanation as to why Ms. Parker’s remote deposition could not 

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

This was error because 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 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).

Second, the VA failed to consider the relevancy of Ms. Parker’s 

testimony based on her statement that she is unable to recall her

evaluation of Plaintiff Baker. MC ECF No. 14-3 at 8. Defendants, however,

plan to question Ms. Parker about her records from the evaluation, her 

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

Plaintiff Baker. MC ECF No. 14-1 at 3. This testimony is relevant to 

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Plaintiff Baker’s supposed injuries, and—as with Dr. Schulman’s evaluation 

of Plaintiff Vernon Rowe—Ms. Parker does not need an independent 

recollection of the evaluation to explain Plaintiff Baker’s medical records or 

her practices as an audiologist. Schulman, 2020 WL 5994266 at **6–7;

Brown, 2017 WL 3620253, at *8 n.12. The VA’s reasoning is also faulty 

because the agency failed to consider whether Dr. Parker’s testimony 

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

governing the admissibility of Ms. Parker’s examination records for Plaintiff 

Baker. 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 reasoning that its Touhy regulations counseled 

against involving Ms. Parker in this litigation—by authorizing her to be 

deposed—is untenable. Schulman, 2020 WL 5994266 at **7–9. Section

14.804(a) does not grant the VA an absolute evidentiary privilege from 

third-party discovery requests not enjoyed by other disinterested witness, 

and authorizing Ms. Parker’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 

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production “of a fact witness for a single deposition does not make [the 

agency] a part of this litigation”).

In sum, the Court concludes the VA’s decision to preclude Ms. 

Parker’s deposition is arbitrary and capricious.

C. Federal Rules of Civil Procedure

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

fares no better.3 The Court must quash a subpoena that “subjects a 

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

As a preliminary matter, the Government misstates the burden of 

proof and legal standard under Rule 45(d)(3)(A)(iv). That is, the 

Government argues incorrectly that the Court should quash Defendants’ 

subpoena because Defendants “cannot show a compelling reason the VA 

should permit [Ms.] Parker’s deposition.” MC ECF No. 1 at 7. The 

Government, in fact, bears the burden of proof on its motion to quash. 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). And Rule 45 does not require a federal litigant to have a 

“compelling reason” for third-party discovery. Instead, the Court looks to a 

3 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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variety of factors to determine if that third-party discovery 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. Andra 

Grp., LP v. JDA Software Grp., Inc., 312 F.R.D. 444, 449 (N.D. Tex. 2015).

Moreover, 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 Ms. Parker’s assignment to the VA 

COVID response team, her inability to independently recall Plaintiff’s 

examination, and the prior records as to Plaintiff Baker that the VA has 

produced to Defendants, MC ECF No. 1 at 6–7, and concludes that 

Defendants’ subpoena does not present an undue burden on the VA or Ms. 

Parker. Schulman, 2020 WL 5994266 at *8. Defendants have asked Ms. 

Parker to attend a brief, remote deposition to testify to her area of expertise 

and a past evaluation of Plaintiff Baker. Compliance may be an 

inconvenience for Ms. Parker, but this is no different than a subpoena to a 

non-party treating physician or healthcare worker in any other personal 

injury case.

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Defendants’ subpoena to Ms. Parker, therefore, is not unduly 

burdensome under Rule 45(d)(3)(A)(iv).

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 

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 

F. Aylstock.

DONE AND ORDERED this 14th day of October 2020.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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