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-49

_________________________________/

ORDER

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

Defendants’ non-party deposition subpoena to Dr. Leslie Schulman (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 Amanda 

Sansone transferred the petition from the Middle District of Florida to this 

Court on September 21, 2020, MC ECF No. 8, and Defendants have filed a 

response in opposition to the petition to quash, MC ECF No. 12. For the 

reasons discussed below, the Government’s petition is DENIED.

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

3:20-mc-49-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 July 28, 2020, Defendants sent the VA Office of the 

General Counsel a request to take the deposition of Dr. Schulman, an 

audiologist at Bay Pines VA Health Care System in Sarasota, Fla. MC

ECF No. 12-1. Defendants stated that Dr. Schulman’s testimony was 

relevant because she conducted “at least one audiogram and hearing 

evaluation on Bellwether Plaintiff Vernon Curtis Rowe, including on March 

11, 2020.” Id. at 2. Defendants sought to depose Dr. Schulman regarding:

(i) the March 11, 2020 hearing evaluation and audiogram 

appointment with Plaintiff Rowe, and Dr. Schulman’s records 

relating to that evaluation (and any other hearing evaluations and 

audiograms that Dr. Schulman conducted of Plaintiff Rowe); (ii) 

Dr. Schulman’s notes from her evaluation of Plaintiff Rowe; (iii) 

Dr. Schulman’s evaluation of the March 11, 2020 audiogram and 

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

Schulman did of Plaintiff Rowe or appointments that Plaintiff 

Rowe had with Dr. Schulman; (v) policies and procedures related 

to military audiological evaluations; (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. at 3. Additionally, Defendants requested that Dr. Schulman produce: (i) 

documents concerning the March 11, 2020, hearing evaluation and 

audiogram for Plaintiff Rowe (as well an subsequent evaluation and 

audiogram); (ii) documents relating to Plaintiff Rowe’s hearing loss and 

tinnitus; (iii) documents, communications, and correspondence between 

Plaintiff Rowe and Bay Pines VA concerning any follow-up evaluations, 

appointments, or discussion related to the March 11, 2020, hearing 

evaluation and audiogram; (iv) written policies and procedures for military 

audiological evaluations; and (v) written policies and procedures related to 

the selection, distribution, fitting, and training for hearing protection devices. 

Id. at 3–4.

On August 17, 2020-—following a separate discovery dispute 

between Defendants and the Department of Defense—the Court directed 

the parties to issue appropriate subpoenas for any government witness 

depositions or document productions. MDL ECF No. 1331 at 47. The 

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Court memorialized this ruling on August 20, 2020, in Pretrial Order No. 50. 

MDL ECF No. 1340. The Court explained that “the parties’ practice of not 

issuing subpoenas for [g]overnment witnesses and documents,” although 

understandable, “is complicating matters and interfering with the fair and 

efficient progress of discovery[.]” Id. at 3.

Defendants acted promptly. On August 18, 2020, they issued a 

subpoena to Dr. Schulman for an in-person or remote deposition and the 

production of documents on September 2, 2020. MC ECF No. 1-1. The 

subpoena is materially identical to Defendants’ July 28, 2020, discovery 

request, id., and was served on August 24, 2020. MC ECF No. 12 at 1.

The VA objected to the subpoena in a comprehensive letter to 

Defendants’ counsel on September 1, 2020. MC ECF No. 12-3. The VA’s

objections are divided neatly into three categories. First, the VA argued 

that Defendants’ subpoena is unduly burdensome, id. at 3, because “[t]he 

time spent in prepping Dr. Schulman for the deposition and the time spent 

in the actual deposition equate to significant time away from providing our 

nation’s Veterans with essential healthcare services,” id. at 4.2 In the same 

2 According to the VA, Dr. Schulman is a mission-essential VA healthcare employee 

directly responsible for patient care at a facility that was closed from March 2020 through 

July 2020 due to the COVID-19 pandemic. MC ECF No. 12-3 at 3. Dr. Schulman is now

conducting telehealth or phone appointments with veterans that are scheduled six weeks 

ahead of time. Id. at 3–4. The VA said that requiring Dr. Schulman to comply with 

Defendants’ subpoena will require her to cancel her appointments, which would result in 

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vein, the VA claimed that Dr. Schulman’s deposition is unnecessary 

because Defendants have Plaintiff Rowe’s treatment records, and Dr.

Schulman has no independent recollection of treating Plaintiff Rowe. Id. 

Second, the VA raised myriad procedural objections to Defendants’ 

subpoena, challenging its breadth, notice, timeliness, and cumulative 

impact. Id. at 4–8. Finally, the VA argued that Defendants’ request to take 

discovery from Dr. Schulman 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 7–11.

II. THE HOUSEKEEPING STATUTE, TOUHY,

AND THE ADMINISTRATIVE PROCEDURE ACT

Before reaching the Government’s petition, 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 

subject third-party is a current VA employee. Instead, the Court must look 

a six-week delay for those patients, and that her colleagues are unable to cover her 

scheduled appointments because they maintain their own appointments. Id. at 4.

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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 

prohibiting a subordinate official of the Department of Justice from obeying 

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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 VA Touhy regulations are codified at 38 C.F.R. § 14.800, 

et seq., and provide, in pertinent part:

VA personnel may provide testimony or produce VA records in 

legal proceedings covered by §§ 14.800 through 14.810 only as 

authorized in accordance with these regulations. In determining 

whether to authorize testimony or the production of records, the 

determining official will consider the effect in this case, as well as 

in future cases generally, based on the factors set forth in § 

14.804, which testifying or producing records not available for 

public disclosure will have on the ability of the agency or VA 

personnel to perform their official duties.

38 C.F.R. § 14.803. In turn, the § 14.804 factors are:

(a) The need to avoid spending the time and money of the United 

States for private purposes and to conserve the time of VA 

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personnel for conducting their official duties concerning servicing 

the Nation's veteran population;

(b) How the testimony or production of records would assist VA 

in performing its statutory duties;

(c) Whether the disclosure of the records or presentation of 

testimony is necessary to prevent the perpetration of fraud or 

other injustice in the matter in question;

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

otherwise inappropriate under the applicable court or 

administrative rules;

(e) Whether the testimony or production of records, including 

release in camera, is appropriate or necessary under the rules of 

procedure governing the case or matter in which the demand or 

request arose, or under the relevant substantive law concerning 

privilege;

(f) Whether the testimony or production of records would violate 

a statute, executive order, regulation or directive. (Where the 

production of a record or testimony as to the content of a record 

or about information contained in a record would violate a 

confidentiality statute's prohibition against disclosure, disclosure 

will not be made. Examples of such statutes are the Privacy Act, 

5 U.S.C. 552a, and sections 5701, 5705 and 7332 of title 38, 

United States Code.);

(g) Whether the testimony or production of records, except when 

in camera and necessary to assert a claim of privilege, would 

reveal information properly classified pursuant to applicable 

statutes or Executive Orders;

(h) Whether the testimony would interfere with ongoing law 

enforcement proceedings, compromise constitutional rights, 

compromise national security interests, hamper VA or private 

health care research activities, reveal sensitive patient or 

beneficiary information, interfere with patient care, disclose trade 

secrets or similarly confidential commercial or financial 

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information or otherwise be inappropriate under the 

circumstances[;]

(i) Whether such release or testimony reasonably could be 

expected to result in the appearance of VA or the Federal 

government favoring one litigant over another;

(j) Whether such release or testimony reasonably could be 

expected to result in the appearance of VA or the Federal 

government endorsing or supporting a position advocated by a 

party to the proceeding;

(k) The need to prevent the public's possible misconstruction of 

variances between personal opinions of VA personnel and VA or 

Federal policy[;]

(l) The need to minimize VA's possible involvement in issues 

unrelated to its mission;

(m) Whether the demand or request is within the authority of the 

party making it;

(n) Whether the demand or request is sufficiently specific to be 

answered;

(o) Other matters or concerns presented for consideration in 

making the decision.

38 C.F.R. § 14.804.

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).3 Only two 

3 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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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 

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 1197.4 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 

4 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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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).

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 VA’s 

decision to not comply with Defendants’ subpoena is not arbitrary and 

capricious because the VA already produced the requested documents and 

the relevant Touhy regulations counseled against permitting Dr. Schulman 

to sit for a deposition. MC ECF No. 1 at 8–11. 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 or duplicative 

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discovery, and failed to allow a reasonable time to comply. Id. at 11–13. 

Lastly, the Government says Defendants’ subpoena should be quashed to 

the extent it seeks opinion or expert testimony from Dr. Schulman that is 

prohibited under § 14.808(a). Id. at 13–14.

Defendants argue that the VA’s decision is arbitrary and capricious 

because the VA failed to give weight to the relevance of the testimony 

sought from Dr. Schulman. MC ECF No. 12 at 2–3. Defendants say they 

are seeking testimony from Dr. Schulman regarding her evaluation of 

Plaintiff Rowe and her various typical practices, id. at 7, because Plaintiff 

Rowe disputes the accuracy of Dr. Schulman’s notes, id. at 4–6, and 

seeking documents she may have in addition to the medical records they 

already have, id. at 8–9. Defendants highlighted these deposition topics 

and document categories in their initial discovery request to the VA 

concerning Dr. Schulman. MC ECF No. 12-1 at 3–4. Defendants contend 

further that the VA’s concerns for Dr. Schulman’s workload or the VA’s 

relationship to this litigation fail to substantiate its claim of undue burden. 

MC ECF No. 12 at 7–8.

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Upon review of the administrative record,5 the Court concludes that 

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

no dispute that the VA considered relevant Touhy regulations under § 

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

decision to not authorize Dr. Schulman to sit for deposition or produce 

records. Alternatively, Defendants’ subpoena is not unduly burdensome or 

otherwise improper under the Federal Rules of Civil Procedure.

A. APA Review

The VA considered 38 C.F.R. §§ 14.804(a), (b), (c), (d), (f), (i), (j), (l), 

and (o), MC ECF No. 12-3 at 7–11, but the Government focuses the VA’s 

reasoning on Dr. Schulman’s workload (relative to the circumstances of the 

COVID-19 pandemic), her failure to independently recall treating Plaintiff 

Rowe, and the lack of a relationship between the VA and this multidistrict 

litigation, MC ECF No. 1 at 8–11. Each of these reasons is inapt, and 

together they fail to substantiate the VA’s decision.

Dr. Schulman’s workload. Defendants and the Court are not in the 

position to challenge the VA’s assertion that Dr. Schulman maintains 

5 “[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 

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

considered by the VA.

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appointments to treat veterans. And there is no doubt the COVID-19 

pandemic has exacerbated her treatment schedule. Workload, however, is 

not a rational basis to excuse Dr. Schulman from sitting for a deposition or 

producing documents. The VA’s reasoning—whether applied only to Dr. 

Schulman or, as the Government suggests, in the aggregate to all similarly 

situated VA healthcare workers—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 

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).

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The other problem with the VA’s reasoning is that it blinks reality. It is 

common for individuals with time-consuming professions (e.g., healthcare 

workers, law enforcement officers, teachers) to be the subject of discovery. 

Dr. Schulman is busy, but the Court suspects she does not work all the 

time. Yet, the VA failed to offer any rational explanation as to why Dr. 

Schulman’s remote deposition or production could not take place around 

her work obligations and at a time convenient for her. Although this Court 

must defer to the VA’s judgment as to “the time and effort involved in 

preparing the employees for their depositions and testimony 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 (and production of 

documents) 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).

Dr. Schulman’s inability to recall her examination of Plaintiff Rowe on 

March 11, 2020. The Government argues the VA properly concluded that it 

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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would be a waste of resources to prepare Dr. Schulman for “a deposition 

where she has little or nothing to add[.]” MC ECF No. 1 at 11. This 

reasoning ignores critical facts about the asserted scope of Defendants’ 

deposition. Defendants plan to question Dr. Schulman about the accuracy 

of her progress notes, the results for Plaintiff Rowe’s examination, and her 

typical practices for audiology. This testimony is obviously relevant to 

Plaintiff Rowe’s supposed injuries, and Dr. Schulman does not need an 

independent recollection of the examination to explain Plaintiff Rowe’s 

medical records or her practices as an audiologist. 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 it failed to consider 

whether Dr. Schulman’s testimony about these topics was “appropriate or 

necessary” under the rules governing the admissibility of Dr. Schulman’s 

examination records for Plaintiff Rowe. Portaleos v. Shannon, No. 5:12-cv1359-LEK-TWD, 2013 WL 4483075, at *6 (N.D.N.Y. Aug. 19, 2013). 

Finally, Dr. Schulman’s inability to recall her examination of Plaintiff 

Rowe should have stressed the need for the VA to authorize Dr. Schulman 

to produce the documents requested by Defendants, to the extent those 

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documents exist and are not duplicative of records the VA previously 

produced.

The VA’s relationship to this litigation. The VA’s argument that the

various VA Touhy regulations counseled against involving Dr. Schulman in 

this litigation—by authorizing her to be deposed or produce documents—is 

untenable. As explained above, any “need to avoid spending the time and 

money of the United States for private purposes,” § 14.804(a), does not 

grant the VA an absolute evidentiary privilege from third-party discovery 

requests not enjoyed by other disinterested witness. Brown, 2017 WL 

3620253, at *8. Moreover, authorizing Dr. Schulman to testify would not 

“result in the appearance of [the] VA ... favoring one litigant over another,” 

§ 14.804(i), or “the appearance of [the] VA ... endorsing or supporting a 

position advocated by a party to the proceeding,” § 14.804(j), because 

Defendants are only seeking factual testimony from Dr. Schulman about 

her examination of Plaintiff Rowe and her audiological practices, not as an 

expert, § 14.808(a). Brown, 2017 WL 3620253, at *8. As another MDL

court explained, the Government’s production “of a fact witness for a single 

deposition does not make [the agency] a part of this litigation.” In re Vioxx 

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

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

Defendants’ subpoena to Dr. Schulman 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. Schulman to testify or produce documents.

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 

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 

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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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 Dr. Schulman’s workload, her 

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

impact” compliance would have on the VA, MC ECF No. 1 at 11–12, and 

concludes that Defendants’ subpoena does not present an undue burden 

on the VA or Dr. Schulman. Defendants have asked Dr. Schulman to 

attend a brief, remote deposition to testify regarding an examination that 

happened earlier this year and to produce documents that, according to the 

Government, she probably does not have. Compliance may be an 

inconvenience for Dr. Schulman, but this is no different than a subpoena to 

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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 

is clear that Defendants are requesting the production of “additional 

documents concerning Rowe in [Dr. Schulman’s] possession, MC ECF No. 

12 at 9, 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.

Lastly, the subpoena gave the VA and Dr. Schulman “a reasonable 

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

the Government concedes) 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 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 and the production 

of documents more than one week after the service date. It is obvious that 

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the VA 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 1, 2020. MC ECF No. 12-3. Moreover, the 

Government’s argument that the Court should quash Defendants subpoena 

because they only gave Dr. Schulman “nine business days to respond” is 

not well taken because, as explained above, the Government did not make 

any effort to accommodate Defendants’ request or seek an extension.

The Government’s petition to quash Defendants’ subpoena of Dr. 

Schulman is due to be denied because it is not unduly burdensome, does 

not seek unreasonably cumulative or duplicative discovery, and allowed Dr. 

Schulman a reasonable time to comply.

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 

F. Aylstock.

DONE AND ORDERED this 9th day of October 2020.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

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