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-65

_________________________________/

ORDER

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

Defendants’ non-party deposition subpoena to Dr. James Davis (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 Robert P. Myers 

transferred the motion to quash from the Southern District of Mississippi to 

this Court on November 10, 2020, MC ECF No. 8, and Defendants have 

filed a response in opposition to the motion, MC ECF No. 11. 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-65-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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In the last two months, the Court has addressed individually the 

merits of challenges by federal agencies to six of Defendants’ discovery 

subpoenas to current government employees.2 Four subpoenas 

(Schulman, Parker, Donaldson, and Toyama) were (as here) case-specific 

to the claims of Bellwether Plaintiffs in the MDL. And two subpoenas 

(Toyama and Robinette) were (as here) directed to employees of the 

Department of Defense. By now, the parties are intimately familiar with the 

background, law, and arguments discussed previously that are also 

applicable to this dispute. Therefore, for the sake of brevity, they will not be 

repeated here 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 

2 See In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:20-mc-56, 2020 WL 

6438614, at *1 (N.D. Fla. Nov. 2, 2020) (“Murphy”); In re 3M Combat Arms Earplug Prods. 

Liab. Litig., No. 3:19-md-2885, 2020 WL 6787216, at *1 (N.D. Fla. Oct. 29, 2020), report 

and recommendation adopted, 2020 WL 6746620, at *1 (Nov. 17, 2020) (“Robinette”); In 

re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:20-mc-55, 2020 WL 6274824, at 

*1 (N.D. Fla. Oct. 26, 2020) (“Toyama”); In re 3M Combat Arms Earplug Prods. Liab. 

Litig., No. 3:20-mc-54, 2020 WL 6140561, at *1 (N.D. Fla. Oct. 19, 2020) (“Donaldson”);

In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:20-mc-53, 2020 WL 6065076, at 

*1 (N.D. Fla. Oct. 14, 2020) (“Parker”); 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”).

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(the “CAEv2”). Plaintiffs are servicemembers, veterans, and civilians 

seeking damages in this action for hearing loss, tinnitus, and related 

injuries caused by their use of the CAEv2. MDL ECF No. 704.

The Government is not a party to this litigation, id. at ¶¶ 16-20, but 

the parties have identified the United States’ various agencies and 

employees as critical sources of discovery. Relevant here, on September 

24, 2020, in accordance with Pretrial Order No. 50, MDL ECF No. 1340, 

Defendants issued a subpoena to Dr. Davis for a deposition and production 

of documents fifteen days later in Gulfport, Mississippi. MC ECF No. 1-1 at 

1–3.

The subpoena, which was served on Dr. Davis on September 28, 

2020, included a letter to United States Army Major Nicole Kim, on behalf 

of the Department of Defense, explaining Defendants’ position on Dr. 

Davis’ relevance to this multidistrict litigation. Id. at 5–9. Namely, Dr. Davis 

was a Hearing Conservation Program Manager at Bellwether Plaintiff 

Dustin McCombs’ duty station (Fort Benning) from 2007 to 2009. Id. at 5. 

Defendants sought to depose Dr. Davis regarding:

(i) [his] role and responsibilities as Hearing Conservation 

Program Manager at Fort Benning; (ii) the Hearing 

Conservation Program at Fort Benning; (iii) selection, 

distribution, fitting, and training for hearing protection 

devices, including the CAEv2, at Fort Benning; (iv) 

evaluation of potential noise exposures at Fort Benning 

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and steps, if any, taken to mitigate those exposures; (v) 

instructions, in any form, provided at Fort Benning to 

service members, including Plaintiff McCombs, related to 

the CAEv2 or other hearing protection devices; (vi) 

practices, policies and procedures related to military 

audiological evaluations at Fort Benning; (vii) completion 

of documents and records regarding audiological 

evaluations; (vi) completion of documents and records 

regarding the selection, distribution, fitting, and training of 

patients for hearing protection devices and (vii) Plaintiff 

McCombs’ noise exposures, use of hearing protection 

devices, and hearing evaluations and records at Fort 

Benning.

Id. at 6. Additionally, Defendants requested that Dr. Davis produce six 

categories of documents related to the distribution, training, fitting, and use 

of hearing protection devices, including the CAEv2, at Fort Benning from 

2007 to 2009, Id. at 6–7.

On October 6, 2020, Defendants issued an amended subpoena for 

Dr. Davis’ deposition to occur remotely. MC ECF No. 1-2. The next day, 

the Department of Defense responded to Defendants’ amended subpoena 

in a comprehensive letter. MC ECF No. 1-3. The Department objected to 

the deposition subpoena as unduly burdensome, as cumulative and 

duplicative, and for failing to allow a reasonable time to comply. Id. 

Notably, the Department asserted that any testimony from Dr. Davis 

regarding his role as Hearing Conservation Program Manager and the 

practices of the program would be cumulative and duplicative of other 

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government witnesses (Dr. Eric Fallon, LTC John Merkley, LTC Leanne 

Battler, and COL Kathy Gates). Id. 3–4. The Department, however, did not 

object to Defendants’ request for Dr. Davis to produce documents and

stated that Dr. Davis did not have any responsive documents. Id. at 6.

The Government, on behalf of the Department of Defense, filed a 

motion to quash Defendants’ deposition subpoena to Dr. Davis, MC ECF 

No. 1, and supporting memorandum, MC ECF No. 2, on October 8, 2020.

II. THE HOUSEKEEPING STATUTE, TOUHY, AND THE 

ADMINISTRATIVE PROCEDURE ACT

The Government’s motion to quash is governed by the Housekeeping 

Statute (5 U.S.C. § 301), the Department of Defense Touhy regulations (32 

C.F.R. § 97.1, et seq.), and the Administrative Procedure Act (“APA”) (5 

U.S.C. § 706). Robinette, 2020 WL 6787216, 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, the Housekeeping Statute authorizes the Department of 

Defense to adopt regulations concerning testimony by agency employees 

and the production of government documents. Touhy, 340 U.S. at 463. 

When deciding whether to authorize or preclude agency employees to 

testify or produce documents, the Department considers myriad factors, 

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including, in pertinent part, “[w]hether the request or demand is unduly 

burdensome or otherwise inappropriate under the applicable court rules[.]” 

32 C.F.R. § 97.6(b)(1). If the agency’s decision is challenged on a motion 

to quash or motion to compel, the Court must determine whether it 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, 

139 S. Ct. 2551, 2569 (2019).

III. DISCUSSION

A. The Government’s Motion and Defendants’ Response

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

Department’s decision to preclude Dr. Davis’ deposition is not arbitrary and 

capricious because the Department has already produced all of the records 

related to Dr. Davis’ interaction with Plaintiff McCombs, Dr. Davis has no

independent recollection of Plaintiff McCombs, and requiring Dr. Davis to 

participate in discovery would be unduly burdensome “especially ... during 

a time of telework and shutdowns caused by the ongoing pandemic.” MC 

ECF No. 2 at 3–4. 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, 

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seeks unreasonably cumulative or duplicative discovery, and failed to allow 

a reasonable time to comply. Id. at 4–7. In support of the contention of 

undue burden, the Government claims that Dr. Davis did not issue any 

CAEv2 earplugs “during his tenure as the Hearing Program Manager” 

because “ in 2008[] the clinic had already transitioned away from the 

CAEv2 to a single-flange earplug” and that he does not have any “personal 

knowledge regarding the potential noise exposures at Fort Benning and 

any steps taken to mitigate those noise exposures.” Id. at 5.

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

Davis’ deposition is arbitrary and capricious. MC ECF No. 11. They 

contend that Dr. Davis’ deposition is necessary notwithstanding that he 

does not have an independent recollection of Plaintiff McCombs because 

he may be able to testify to several other topics—the distribution, fitting, 

training, and use of the CAEv2 by servicemembers at Fort Benning during 

the relevant time period, his role as the Hearing Conservation Program 

Manager at Fort Benning, and the evaluation of hearing protection devices 

during audiograms of servicemembers. Id. at 3–5. Defendants also assert 

that this deposition is not unduly burdensome merely because it would 

require Dr. Davis to take time away from his work. Id. at 5–6. Defendants

argue further that they provided Dr. Davis a reasonable time to comply with 

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the subpoena notwithstanding that the subpoena was amended three days 

prior to the proposed deposition date. Id. at 6–7.

Upon review of the administrative record,3 the Court concludes that 

the Government’s motion to quash is due to be denied. The Department 

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

decision to preclude Dr. Davis’ deposition under the applicable Touhy 

regulations. Alternatively, Defendants’ subpoena is not unduly 

burdensome or otherwise improper under the Federal Rules of Civil 

Procedure.

B. APA Review

In deciding whether to authorize Dr. Davis’ 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. 1-3

at 2. The Government, however, fails to substantiate the reasoning set 

forth in the Department’s October 7, 2020, comprehensive letter and, in 

turn, the Department’s decision to preclude Defendants from deposing Dr. 

Davis.

3 “[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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The Department’s claims of undue burden ring hollow. For starters, a 

federal agency “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 Parker, 2020 WL 6065076, at *4. Here, the Department 

offered mostly generalized assertions about the burden of having Dr. Davis 

prepare and sit for a deposition. See, e.g., MC ECF No. 1-3 at 2–3

(“[D]epositions are usually the most burdensome means of obtaining facts 

in litigation.” (emphasis added)). This does not evince any effort by the 

Department to examine the actual evidence before it, which is error. 

Toyama, 2020 WL 6274824, at *6; 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). In the same vein, the incidental burden on the Department and 

its employees to provide non-party discovery to federal litigants is not, 

standing alone, undue. See 5 U.S.C. § 301 (“This section does not 

authorize withholding information from the public or limiting the availability 

of records to the public.”); United States v. Reynolds, 345 U.S. 1, 9–10 

(1953) (“Judicial control over the evidence in a case cannot be abdicated to 

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the caprice of executive officers.”); Moore, 927 F.2d at 1198 (a federal 

agency “cannot put a blanket ban on all requests for testimony”).

Worse here, the Government’s assertion that Dr. Davis’ deposition 

would be “especially burdensome during a time of telework and shutdowns 

caused by the ongoing pandemic,” MC ECF No. 2 at 4, is without any 

support in the Department’s administrative record. The Department did not 

preclude Dr. Davis’ deposition based on his current duties or workload. To 

the extent this reasoning is implied in the Department’s October 7, 2020, 

letter, it is arbitrary and capricious because the Department failed to explain 

with any specificity how discovery in this case would interfere with Dr. 

Davis’ duties or why Defendants may not accommodate Dr. Davis’ work 

schedule. 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 Toyama, 2020 WL 6274824, at *6.

The Department’s reasoning as to undue burden and cumulativeness

is also arbitrary and capricious because it ignored critical facts about the 

asserted scope of Defendants’ deposition of Dr. Davis. The Department 

stated that Dr. Davis’ testimony would not be relevant because he did not 

issue any CAEv2 earplugs as Hearing Conservation Program Manager and 

his clinic “had already transitioned away from the CAEv2 to a single-flange 

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earplug” in 2008. MC ECF No. 1-3 at 3. If these statements are true,4 the 

Department failed to appreciate that they are vital to Defendants’ position 

on the critical issue of “whether [Plaintiff] McCombs used the CAEv2 as

intended or claimed, as opposed to an alternative earplug[.]” MC ECF No. 

11 at 4.

Moreover, Dr. Davis does not need an independent recollection of 

Plaintiff McCombs to testify regarding “the Hearing Conservation Program 

at Fort Benning[,]” “his “practices, policies, and procedures related to 

military audiological evaluations at Fort Benning[,]” his “completion of 

documents and records regarding audiological evaluations[,]” and other 

topics proposed by Defendants. MC ECF No. 1-1 at 6. Specifically, the 

Government failed to consider that Dr. Davis could testify concerning 

notations in the records of Plaintiff McCombs’ audiograms at Fort Benning 

(when Dr. Davis was the Hearing Program Conservation Manager there) 

and to whether soldiers like Plaintiff McCombs were instructed on the 

proper use and fit of CAEv2. Toyama, 2020 WL 6274824, at *6; 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).

4 It is unclear what the Department meant when it said Dr. Davis’ clinic “transitioned 

away” from the CAEv2 prior to 2008.

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Finally, assuming that the information sought by Defendants from Dr. 

Davis was also available to Defendants in earlier document productions, 

those documents cannot express Dr. Davis’ 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).

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

Dr. Davis’ 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 Dr. Davis’ testimony, other than that he lacked 

an independent recollection of Plaintiff McCombs. The Department, 

instead, relied on generalized assertions concerning the burden of

producing non-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 its earlier production of documents in lieu of the 

requested deposition.

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C. Federal Rules of Civil Procedure

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

fares no better.5 The Court must quash a subpoena that “subjects a 

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

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

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

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

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

factors to determine whether a subpoena is unduly burdensome—the 

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

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

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

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

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

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

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

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

5 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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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. Davis’ employment, his inability 

to independently recall Plaintiff McCombs service at Fort Benning, and any 

“cumulative impact” compliance would have on the Department of Defense, 

MC ECF No. 1-3 at 2–3; MC ECF No. 2 at 5, and concludes that 

Defendants’ subpoena does not present an undue burden on the

Department or Dr. Davis. Defendants have asked Dr. Davis to attend a 

brief, remote deposition so he may testify to his experience as a Hearing 

Conservation Program Manager during a discrete time period and to 

explain notations in Plaintiff McCombs’ military records. Compliance may 

be an inconvenience for Dr. Davis, 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

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Defendants plan to depose Dr. Davis on matters not readily apparent in 

Plaintiff McCombs’ military records or available in other discovery. To the 

extent there may be any overlap between Dr. Davis’ testimony as a 

Hearing Conservation Program Manager at Fort Benning during Plaintiff 

McCombs’ service and that of other government employees involved 

generally in the Hearing Conservation Program (Dr. Fallon, LTC Merkley, 

LTC Battler, and COL Gates), it is not so unreasonable as to warrant 

quashing the subpoena.

Lastly, the subpoena gave the Department and Dr. Davis “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 

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 nine business days. The Government places too much emphasis on 

the later-served amended subpoena, which changed the means of taking 

the deposition from in-person to remote. MC ECF No. 1-2. It is obvious 

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that the Department was able to respond to the merits of Defendants’ 

subpoena (and amended subpoena) before the return date because it sent 

Defendants a comprehensive letter with its position on October 7, 2020. 

MC ECF No. 1-3.

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 Dr. Davis 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 

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 8th day of December 2020.

s/Gary R. Jones GARY R. JONES

 United States Magistrate Judge

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