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:

Hensley v. 3M Company

Case No. 3:20-mc-71

______________________________/

ORDER

Pending before the Court is the Amended Motion of Plaintiffs Marcus 

and Laterial Hensley to Quash Subpoena to Third Party Timothy White. 

ECF No. 4.1

 The MDL Defendants filed a response in opposition. ECF No. 

23. The instant motion, therefore, is ripe for consideration.

Plaintiff Marcus Hensley and his spouse are Trial Group B Bellwether 

Plaintiffs in this MDL. On October 30, 2020, the MDL Defendants notified 

Plaintiffs that they intended to serve a discovery subpoena for the 

production of documents on non-party Timothy White pursuant to Federal 

1 Plaintiffs filed their amended motion to quash in the Northern District of Oklahoma on 

November 24, 2020, ECF No. 4, and, upon 3M’s motion, ECF No. 7, Magistrate Judge 

Christine D. Little transferred the amended motion to quash to this Court on December 9, 

2020, ECF No. 17.

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Rule of Civil Procedure 45. ECF No. 4-2. Mr. White was counsel of record 

for Mr. Hensley in his most recent claim in federal court for Social Security 

disability benefits and the appeal therefrom in the United States Court of 

Appeals for the Eighth Circuit. ECF No. 4-3; ECF No. 23 at 2. The MDL 

Defendants attempted to serve the subpoena on Mr. White the same day 

they notified Plaintiffs, ECF No. 4 at 1, but they have yet to successfully 

execute service, ECF No. 23 at 1, 6.

The MDL Defendants sought production of 12 categories of 

documents, most of which related to Mr. Hensley’s military service, his use 

of the CAEv2, and his claims of hearing loss or tinnitus in the MDL. ECF 

No. 4-1 at 8–10. Additionally, they subpoenaed “[a]ll documents, including 

but not limited to, hearing transcripts in connection with Hensley v. Colvin, 

Commissioner Social Security Administration, Case No. 4:14-cv-00030-

BSM-JJV (E.D. Ark. 2014), including the appeal to the Eighth Circuit Court 

of Appeals[,]” and “all non-privileged case files concerning” the same case 

and appeal. Id. at 9.

Plaintiffs’ motion to quash raises numerous challenges to the 

subpoena. ECF No. 4. Plaintiffs argue: (1) that the subpoena seeks 

confidential marital communications and information from Mr. White subject 

to the attorney-client privilege and work-product protection, which have not 

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been waived; (2) that they were not afforded a reasonable time to oppose 

the subpoena; (3) that the subpoena fails to afford Mr. White a reasonable 

time to comply; (4) that the subpoena seeks duplicative and cumulative 

discovery; (5) that compliance with the subpoena is unduly burdensome; 

and (6) that the subpoena seeks information not proportional to Plaintiffs’ 

claims. Id. at 4–9. The MDL Defendants refute each objection, in turn. 

ECF No. 23 at 5–13.

Rule 45 authorizes federal litigants to issue a subpoena for the 

production of “designated documents, electronically stored information, or 

tangible things in that person’s possession, custody, or control.” Fed. R. 

Civ. P. 45(a)(A)(iii). Before serving such a subpoena, the requesting party 

must serve a notice and copy on each party. Fed. R. Civ. P. 45(a)(4). “On 

timely motion, the court for the district where compliance is required must 

quash or modify a subpoena that: (i) fails to allow a reasonable time to 

comply; (ii) requires a person to comply before the geographical limits 

specified in Rule 45(c); (iii) requires disclosure of privileged or other 

protected matter, if no exception or waiver applies; or (iv) subjects a person 

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

compliance with the subpoena is required may transfer a motion to quash 

to the court from where the subpoena was issued. Fed. R. Civ. P. 45(f).

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As a threshold matter, the Court must determine whether Plaintiffs 

have standing to challenge the subpoena directed to a non-party. The 

general rule is that a party does not have standing to quash a subpoena 

served on a non-party unless the party claims a “personal right” or 

“privilege” with regard to the information subpoenaed. Cellairis Franchise, 

Inc. v. Duarte, 193 F. Supp. 1379, 1381 (N.D. Ga. 2016) (citing Brown v. 

Braddick, 595 F.2d 961, 967 (5th Cir. 1979) 2); Auto-Owners Ins. Co. v. Se. 

Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005); see also 9A 

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 

2459 (3d ed.).

Plaintiffs have standing to raise their privilege claims. Boromei v. 

Amica Mut. Ins. Co., No. 8:15-cv-2221-T-23MAP, 2015 WL 12843225, at *1 

(M.D. Fla. Oct. 29, 2015). Plaintiffs may also move to quash the subpoena 

on the basis that the MDL Defendants failed to comply with the Rule 

45(a)(4) “prior notice” requirement, the purpose of which is “to give an 

opposing party the opportunity to object to the subpoena prior to the date 

set forth in the subpoena.” Warren v. Delvista Towers Condo. Ass’n, Inc., 

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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No. 13-23074-CIV, 2014 WL 1608369, at *1 (S.D. Fla. Apr. 22, 2014). Put 

simply, that right is personal to Plaintiffs. Plaintiffs, however, lack standing 

to raise their remaining objections (that the subpoena imposes an undue 

burden, seeks information that is cumulative and not proportional to the 

needs of the case, and does not allow Mr. White a reasonable time to 

comply). See Auto-Owners Ins. Co., 231 F.R.D. at 429 (“Defendants do 

not have standing to quash the subpoenas on the grounds of oppression 

and undue burden placed upon the third parties where the non-parties have 

not objected on those grounds.”); see also Coalview Centralia, LLC v. 

Transalta Centralia Mining LLC, No. 3:18-cv-5639-RBL, 2019 WL 2563851, 

at *1 (W.D. Wash. Mar. 21, 2019); Uppal v. Rosalind Franklin Univ. of Med. 

& Sci., 124 F. Supp. 3d 811, 815 (N.D. Ill. 2015).3

3 These objections nevertheless are without merit. The subpoena provides Mr. White a 

reasonable time to retrieve and produce documents from his own records. 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). Plaintiffs’ bald assertion of undue 

burden is insufficient to quash the subpoena. 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.”). Lastly, the 

information sought from Mr. White is proportional to the needs of the case because it is 

directly relevant to Plaintiffs’ claims of injury and for damages, and it is not duplicative or 

cumulative of other discovery the MDL Defendants have obtained. It bears mentioning, 

that the subpoena to Mr. White was a “last resort” for the MDL Defendants, who “pursued 

numerous avenues to obtain documents from [Plaintiff’s] Social Security proceedings to 

no avail.” ECF No. 23 at 10.

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Turning to the merits, Plaintiffs’ privilege claims ring hollow. In view 

of the broad language employed in the MDL Defendants’ subpoena—

namely, seeking production of “[a]ll documents” in connection with one of 

Plaintiff’s cases—the Court appreciates Plaintiffs’ concern that any 

response from Mr. White may result in a violation of privilege. ECF No. 4 at 

5–6. The MDL Defendants, however, make clear in their response to the 

instant motion what they are seeking—“non-privileged documents from Mr. 

White with respect to” Mr. Hensley’s prior Social Security proceedings, 

such as “briefings, pleadings, and hearing transcripts”—and those, 

obviously, are not privileged. ECF No. 23 at 6 (emphasis added). These 

documents were filed in federal court and, therefore, typically available to 

the public. To the extent some medical information therein was, or 

remains, confidential, Mr. Hensley authorized a release for the Social 

Security Administration to produce records that will likely include virtually 

the same information. ECF No. 23 at 2. Therefore, Plaintiffs’ speculation 

that there is a “clear and compounded risk” privileged documents will be 

produced by Mr. White in response to the subpoena is unsubstantiated.

Finally, the Court concludes that Plaintiffs received sufficient notice of 

the subpoena under Rule 45(a)(4). Although it is not ideal that the MDL 

Defendants supposedly endeavored to serve the subpoena on Mr. White 

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the same day that they provided Plaintiffs notice of the subpoena itself,

ECF No. 4 at 1, the purpose of Rule 45(a)(4) has been met. That is, 

Plaintiffs had the opportunity to raise their objections in this motion to 

quash prior to service of the subpoena, let alone any compliance. Warren, 

2014 WL 1608369, at *1.

In sum, the Court concludes that Plaintiffs’ motion to quash the MDL 

Defendants’ subpoena to Mr. White must fail. The subpoena does not 

request the production of privileged information, and Plaintiffs received 

sufficient “prior notice” of the subpoena under Rule 45(a)(4). Plaintiffs, 

otherwise, do not have standing to assert their remaining objections that

the subpoena imposes an undue burden, seeks information that is 

cumulative and not proportional to the needs of the case, and does not 

allow Mr. White a reasonable time to comply.

Accordingly, it is ORDERED that Plaintiffs’ Amended Motion to 

Quash, ECF No. 4, is DENIED.

DONE AND ORDERED this 12th day of January 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge 

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