UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS

LIABILITY LITIGATION

This Document Relates to:

3M Co. v. Top Class Actions, LLC

Case No. 2:20-mc-74

Case No. 3:19-md-2885

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

MDL PLAINTIFFS’ RESPONSE TO MDL DEFENDANTS’ 

MOTION TO COMPEL

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INTRODUCTION

Pursuant to this Court’s Order granting the MDL Plaintiffs’ Motion to 

Intervene, Dkt. 48, MDL Plaintiffs submit this Response to the MDL Defendants’ 

(“3M”) Motion to Compel. In doing so, the MDL Plaintiffs adopt and agree with the 

arguments set forth by Top Class Actions, LLC (“TCA”) in its Response to 3M’s 

Motion to Compel Discovery, Dkt. 17, and its Supplemental Briefing on Standing, 

Dkt. 23. 

BACKGROUND

As set forth by the parties in the Joint Pre-Hearing Brief, this “[t]his dispute 

centers around whether information submitted by potential claimants in the MDL 

through TCA’s website is protected from disclosure based on attorney-client 

privilege and client confidentiality.” Dkt. 17 at 5. “The parties further dispute 

whether certain communications between TCA and its law firm clients are protected 

from disclosure under the work product doctrine.” Id. “TCA asserts that it is an agent 

of its client law firms, and therefore, TCA has an obligation to keep the information 

submitted on the forms confidential. 3M disputes these arguments.” Id. Pursuant to 

court order in the District of Arizona, Dkt. 22, 3M and TCA briefed the issue of 

whether TCA has standing to assert the attorney-client privilege or the work-product 

protection. See Dkt. 23, 29. Following the JPML’s transfer of this action to MDL 

No. 2885, the issue of standing is now ripe for resolution. 

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The MDL Plaintiffs intervened to protect their privilege interest in the 

subpoenaed documents, to the extent this Court finds that TCA does not have 

standing to assert the privilege. Insofar as 3M’s subpoena seeks documents and 

communications related to all current and potential claimants in MDL No. 2885

(rather than individual plaintiffs and their counsel), this matter is within Lead 

Counsel’s sphere of responsibilities. See MDL Dkt. 76 at 3.

3M’s subpoena seeks documents and communications relating to current and 

potential MDL No. 2885 plaintiffs, including all documents relating to (1) current 

and potential claimants who have asserted or may assert claims against defendants 

based on the use of the CAEv2; (2) any analysis done by TCA or any plaintiffs’ law 

firm regarding claimants or their claims; (3) the referral of claimants to a lawyer; (4) 

marketing or advertising to current or potential claimants to join MDL No. 2885; (5) 

communications and agreements between plaintiffs’ law firms and TCA; and (6) 

financial interest or ownership that any plaintiffs’ law firm has in TCA. See Dkt. 1, 

Doc. 1-1, at 11-12. 

3M concedes that its subpoena “arises out of” MDL No. 2885 and agrees that 

the subpoena seeks discovery relating to the claims for personal injuries sustained 

by MDL Plaintiffs from using the CAEv2. Dkt. 45 at 2. That 3M nevertheless chose 

to file the Motion to Compel in the District of Arizona—and then to fight to keep it 

there—instead of this consolidated 3M action is curious. Regardless, on December 

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15, 2020, the JPML, upon finding that “the subpoena action undoubtedly shares 

common factual questions with MDL No. 2885,” transferred this matter to this Court 

for inclusion in MDL No. 2885. Id. at 2. This Court subsequently granted the MDL 

Plaintiffs’ Motion to Intervene on January 6, 2021. Dkt. 48. 

LEGAL STANDARD

The Court has “broad discretion . . . to compel or deny discovery.” Josendis

v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Rule 

26 limits discovery to “any nonprivileged matter that is relevant to any party’s claims 

or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “On 

motion or on its own, the court must limit the frequency or extent of discovery” 

where “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” 

Fed. R. Civ. P. 26(b)(2)(C)(iii). 

The attorney-client privilege is a creature of statute or common law, whereas 

the work-product privilege is codified in Rule 26(b)(3)(A). However, “[t]here is no 

typically no material distinction between the attorney-client privilege available 

under state law and federal common law.”1 In re 3M Combat Arms Earplug Prods. 

Liab. Litig., 2020 WL 1321522, at *3 n.3 (N.D. Fla. Mar. 20, 2020). Where, as here, 

 1 Accordingly, MDL Plaintiffs cite both state and federal cases addressing attorneyclient privilege. Given the transfer of this action from a federal court in the Ninth 

Circuit, Plaintiffs’ Leadership Counsel provides additional citations addressing the 

issues at hand, including case law from courts within the Eleventh Circuit.

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a party objects to the production of documents on the basis of attorney-client 

privilege or work-product protection, the objecting party bears the burden of 

demonstrating the privilege and/or protection. In re Grand Jury Investigation, 842 

F.2d 1223, 125 (11th Cir. 1987). “The inquiry into whether documents are subject 

to a privilege is a highly fact-specific one.” In re Grand Jury Proceedings, 220 F.3d 

568, 571 (7th Cir. 2000). The attorney-client privilege “is very nearly sacred.” 

Bessman v. Travelers Prop. Cas. Co. of Am., 2009 WL 10675305, at *1 (N.D. Fla. 

July 20, 2009). It is “the oldest of the privileges for confidential communications 

known to the common law” and “[i]ts purpose is to encourage full and frank 

communication between attorneys and their clients and thereby promote broader 

public interests in the observance of law and administration of justice.” Upjohn Co. 

v. United States, 449 U.S. 383, 389 (1981). 

ARGUMENT

3M’s Motion to Compel and TCA’s objections to production were fully 

briefed in the District of Arizona prior to the JPML’s transfer of the matter to this 

Court. See Dkt. Nos. 39, 43. Plaintiffs’ Leadership Counsel support and adopt TCA’s 

arguments and the authority cited in response to 3M’s Motion to Compel, including 

TCA’s claims that “information submitted by potential claims in the MDL through 

TCA’s website is protected from disclosure based on attorney-client privilege and 

client confidentiality.” Dkt. 17 at 5. Plaintiffs’ Leadership Counsel also support and 

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adopt TCA’s briefing in the District of Arizona with respect to its standing to assert 

such privacy claims on behalf of its client law firms. See Dkt. 23. 

To the extent the Court finds that TCA does not have standing to assert 

attorney-client privilege and client confidentiality claims, Plaintiffs’ Leadership 

Counsel writes separately to respond to and specifically assert those privilege and 

work-product claims on behalf of current plaintiffs in MDL No. 2885 and other

persons who pursued legal advice or assistance through TCA relative to their use of 

the CAEv2.

2 Insofar as any such person sought legal advice or assistance of any 

kind through TCA’s website relating to their use of the CAEv2, those 

communications are protected from disclosure under the attorney-client privilege. 

Similarly, any communications between TCA and its law firm clients reflecting the 

lawyers’ mental impressions or opinions regarding the proposed web page content 

before it was published on TCA’s website, in addition to any analysis done by TCA 

or any law firm client regarding claimants or their claims, is protected work product. 

I. It is well-recognized that the attorney-client privilege and work-product 

protection extend to an attorney’s agent. 

“[I]n order to promote complete exchanges of information and advice between 

attorney and client, the privilege has been extended to include those persons who act 

 2 3M subpoena broadly defines “Claimaint(s)” to include “all plaintiffs” in MDL No. 

2885, “all persons who have contacted” TCA regarding “potential claims based on 

use of CAE[v2],” and “all other Persons that have asserted or may assert claims 

against Defendants based on use of CAE[v2].” Dkt. 1, Doc. 1-1 at 6. 

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as the attorney’s agents, including ‘secretaries, file clerks, telephone operators, 

messengers, clerks not yet admitted to the bar, and aides of other sorts.’” E.E.O.C. 

v. DiMare Ruskin, Inc., 2012 WL 12067868, at *7 (M.D. Fla. Feb. 15, 2012); see 

Upjohn Co., 449 U.S. at 390 (“[T]he privilege exists to protect not only the giving 

of professional advice to those who can act on it but also the giving of information 

to the lawyer to enable him to give sound and informed advice.”). Hence, “the 

presence of a third party does not waive attorney-client privilege ‘when the third 

party is present to assist the attorney in rendering legal services.’” DiMare Ruskin,

2012 WL 12067868, at *7; see Fla. Stat. § 90.502(c)(1)-(2) (privilege extends to 

agents and representatives of the attorney when disclosure furthers the rendition of 

legal services, or when disclosure is reasonably necessary for transmitting the

communication). 

Both state and federal courts recognize that “the existence of a formal retainer 

agreement is not essential to the finding of an attorney-client relationship.” Eggers

v. Eggers, 776 So.2d 1096, 1099 (Fla. 5th DCA 2001); see also Deslandes v. 

McDonald’s USA, LLC, 2019 WL 7480646 at *5 (N.D. Ill. July 17, 2019) (noting 

“the absence of a formal attorney-client relationship does not preclude the 

application of privilege”). Instead, the inquiry hinges on the client’s subjective belief 

that he is seeking legal representation or specific legal advice from an attorney or 

the attorney’s agent. 

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As noted in Westinghouse Elec. Corp. v. Kerry–McGee Corp., 580 F.2d 1311, 

1319 (7th Cir. 1978), “[t]he fiduciary relationship existing between lawyer and client 

extends to preliminary consultation by a prospective client with a view to retention

of the lawyer, although actual employment does not result.” See also Mississippi 

Valley Title Ins. Co. v. Thompson, 802 F.3d 1248, 1253-54 (11th Cir. 2015) (“The 

test for determining the existence of an attorney-client relationship is a subjective 

one and “hinges upon the client’s belief that he is consulting a lawyer in that capacity 

and his manifested intention to seek professional legal advice.”); In re Abilify 

(Aripiprazole) Prods. Liab. Litig., 2017 WL 6757558, at *7 (N.D. Fla. Dec. 29, 

2019) (“[T]here is little question that where a client (or agent of the client) submits 

information to an attorney for legal advice the attorney-client privilege protects the 

communication from disclosure.”).

As this Court has recognized in another MDL, the attorney-client protection 

“applies as well to information gathered by non-attorneys for transmission to an 

attorney for the attorney to provide legal advice on an issue or to provide legal advice 

regarding the document or information gathered by the non-attorney employee of 

the client.” In re Abilify, 2017 WL 6757558, at *7. The Restatement and leading 

treatises on privilege are in accord. See, e.g., RESTATEMENT (THIRD) OF THE LAW 

GOVERNING LAWYERS § 70 (2000) (“Privileged persons within the meaning of § 68 

are the client (including a prospective client), the client’s lawyer, agents of either 

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who facilitate communications between them, and the agents of the lawyer who 

facilitate the representation.”) (emphasis added); 8 J. Wigmore, EVIDENCE § 2301 

at 538 (McNaughton Rev. Ed. 1961) (“The assistance of these agents being 

indispensable to his work and the communications of the client being often 

necessarily committed to them by the attorney or by the client himself, the privilege 

must include all the persons who act as the attorney’s agents.”).

In such cases, the third party “stands in the same shoes” as the client with 

regard to communications between the third party and counsel for the client so long 

as the communications “were made for the purpose of facilitating the rendition of 

legal services to the [] client.” In re Abilify, 2017 WL 6757558, at *8. In sum, if the 

client or prospective client sought legal advice or assistance—through the attorney 

directly or through the non-lawyer agent who facilitates the representation—then the 

attorney-client privilege attaches to protect the communication. It does not matter 

whether or not a formal attorney-client relationship results.

Similar to the attorney-client privilege, the purpose of the work product 

protection “is to protect the integrity of the adversary process by allowing a lawyer 

to work ‘with a certain degree of privacy, free from unnecessary intrusion by 

opposing parties and their counsel.’” Drummond Co., Inc. v. Conrad & Scherer, 

LLP, 885 F.3d 1324, 1335 (11th Cir. 2018) (quoting Hickman v. Taylor, 329 U.S. 

495, 510 (1947)). Work-product protection “extends to material obtained or prepared 

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by counsel in the course of their legal duties provided that the work was done with 

an eye toward litigation.” Drummond, 885 F.3d at 1334–35 (citing Fed. R. Civ. P. 

26(b)(3)(A)). The work-product doctrine, nevertheless, “is distinct from and broader 

than the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 238 n.11 

(1975).

II. 3M is not entitled to the subpoenaed documents because the information 

is privileged.

3M first argues that TCA wrongly withheld responsive documents on the basis 

of client confidentiality. Dkt. 1 at 5. 3M asserts that TCA is not a lawyer that owes 

a duty of confidentiality to its clients. Id. Instead, says 3M, “TCA’s clients are law 

firms, not the potential claimants in the Combat Arms Earplugs litigation.” Id. But 

as TCA has explained, 3M’s claim misses the mark by ignoring the well-established 

attorney-agent exception. Contrary to 3M’s claim, the attorney-client protection 

extends to a non-attorney agent who, as here, facilitates the provision of legal 

services to a client. 

This Court has previously held that the attorney-client protection “applies as 

well to information gathered by non-attorneys for transmission to an attorney for the 

attorney to provide legal advice on an issue.” In re Abilify, 2017 WL 6757558, at *7. 

In such cases, the non-attorney (i.e., TCA) is said to “stand in the shoes” of the client 

with regard to communications between the third party and counsel. Id. So long as 

the person completing the form sought legal advice, the attorney-client exception 

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extends to cover TCA’s participation in receiving and transmitting information 

between the prospective or existing client and the attorney. Indeed, TCA’s “web 

pages are replete with information explaining that the form content will be sent to a 

lawyer, confidentially, so that the potential plaintiff’s claim can be evaluated by a 

lawyer.” Dkt. 10 at 2. 

As such, the form responses and other communications between the client or 

potential client and attorney sought by 3M fall under the protection of the attorneyclient privilege. The form responses are communications from clients or potential 

clients and were submitted for the purpose of seeking legal advice or assistance from 

counsel about the 3M litigation. The web pages clearly indicate the legal 

implications of submitting the form content. They were made in confidence and have 

been kept confidential by counsel. As summarized by TCA, “[t]he only [question]

for the court is whether this privilege is lost because the form appears on 

topclassactions.com instead of the lawyer’s own website.” Dkt. 10 at 7. The privilege 

is not lost. In addition to the authority cited by TCA, including Barton v. U.S. Dist. 

Court for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005) and In re Int’l Oil 

Trading Co., 548 B.R. 825 (S.D. Fla. 2016), numerous other cases support a finding 

of privilege under similar circumstances. 

Hudson held that questionnaires completed by existing clients or those 

“attempting to become prospective clients” are privileged.

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Corp., 186 F.R.D. 271, 276 (D. Conn. 1999). Because the “[p]laintiff sought legal 

guidance through the questionnaire, attorney-client privilege attaches to protect the 

communication.” Id. The Hudson court noted that “[i]n actions involving 

representation of multiple clients like this one, a client questionnaire is often 

prepared by counsel as an efficient substitute for more time consuming face-to-face 

interviews to provide the attorney with client information in response to focused 

questions fashioned by the attorney about the potential client and his or her claims.

. . . Such questionnaire use is necessary to impart information from client to counsel 

to promote informed, effective representation.” Id. at 275; see also Barton, 410 F.3d 

at 1110–11 (“The changes in law and technology that allow lawyers to solicit clients 

on the internet and receive communications from thousands of potential clients 

cheaply and quickly do not change the applicable principles.”).

Similarly, in E.E.O.C. v. Scrub, Inc., 2010 WL 2136807 (N.D. Ill. May 25, 

2010), the court held that completed questionnaires were protected from disclosure: 

“Where the questionnaires are completed by persons seeking legal representation, 

the privilege extends.” Id. at *9. “The attorney-client privilege covers 

communications where ‘legal advice of any kind is sought’ and is not dependent 

upon the initiation or contemplation of litigation.” Id. (quoting Vodak v. City of 

Chicago, 2004 WL 783051 (N.D. Ill. 2004)).

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In Vodak, the magistrate judge held that the questionnaires completed by 

putative class members were not discoverable because they were completed for the 

purpose of obtaining legal advice and, therefore, protected by the attorney-client 

privilege. 2004 WL 783051, at *1. Similar to the present case, in Vodak the 

questionnaire specifically stated that any information provided would be “held in 

strict confidence and used only by the attorneys providing legal representation.” Id. 

The court further held that “an attorney-client relationship is also not tied to actual 

employment of a lawyer, so Scrub’s argument that the questionnaires are not 

privileged because EEOC did not make a definitive offer to represent potential 

claimants is unavailing.” Id. (holding that the lawyer client relationship begins with 

the preliminary consultation “with a view to retention of the lawyer, although actual 

employment does not result”).

And finally, in Deslandes v. McDonald’s USA, LLC, 2019 WL 7480646, at 

*5 (N.D. Ill. July 17, 2019), which is particularly analogous to the case at hand, the 

plaintiff sought legal guidance through a questionnaire advertisement by a law firm 

(MVA) on Facebook regarding McDonald’s wages, and completed a questionnaire 

linked to the advertisement. Id. at *4. The questionnaire responses were received by 

attorneys and support staff at MVA as well as Ms. Ochi, Director of Digital 

Marketing for ONE400, a law firm marketing agency—much like TCA. Id. Similar 

to the present case, the law firm MVA contracted with the marketing company

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ONE400 “to perform website management and content distribution.” Id. ONE400 

“converted [plaintiff’s two] intake form submissions into emails that were then sent 

to several MVA attorneys and staff members, along with Ms. Ochi.” Id. According 

to plaintiff, Ms. Ochi was included on the emails “to ensure that potential client leads 

originating from the MWA website were appropriately accounted for and 

addressed.” Id. Plaintiff asserted that ONE400’s services were necessary “for the 

rendering of legal advice” and noted that ONE400 “was subject to a strict 

confidentiality requirement for all ‘Client Information’ . . . equivalent to those 

applicable to any other in-house non-attorney personnel at MVA.” Id. 

Defendant filed a motion to compel the plaintiff’s questionnaires, claiming 

they were not privileged. It argued that the questionnaire responses merely amounted

to “generalized requests for contact” used to determine the viability of [p]laintiff’s 

claim.” Id. at *5. Defendants also pointed to a footer on MVA’s website that stated

it “is not intended to create . . . an attorney-client relationship.” Id. In response, 

plaintiff “assert[ed] that she completed the online questionnaire to seek legal advice, 

and thus the attorney-client privilege presumptively applies.” Id. 

Upon consideration, the court held that the questionnaires were indeed 

covered by the attorney-agent exception. As noted by the court, “[t]he attorney-agent 

exception applies where a third party is ‘present to assist the attorney in rendering 

legal services.’” Id. The court found that because “[p]laintiff sought legal guidance 

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through the questionnaire, [the] attorney-client privilege attaches to protect the 

communication.” Id. Indeed, the plaintiff confirmed that “she knew her submissions 

would be provided to a lawyer and that she completed the questionnaire to get legal 

advice about her rights as a former McDonald’s employee.” Id. Thus, the court held, 

“the attorney-client exception extends to cover One400/Ms. Ochi’s participation in 

the submission.” Id. 

In doing so, the court rejected the defendant’s claim that Ms. Ochi merely 

served a “contractual technical support function.” Id. As noted by the court, “there 

is little difference between [Ms. Ochi’s] role in this instance and that of an in-house 

IT employee tasked with operating a law firm’s website. As Ms. Ochi was 

‘responsible for transmitting messages between the attorney and client,’ her 

involvement falls within the spirit of the attorney-agent exception. Thus, the 

attorney-client privilege protects the questionnaire responses from disclosure.” Id.;

see also In re Abilify, 2017 WL 6757558, at *7 (the attorney-client privilege “applies 

as well to information gathered by non-attorneys for transmission to an attorney for 

the attorney to provide legal advice on an issue or to provide legal advice regarding 

the document or information gathered by the non-attorney employee of the client”).

In sum, the following categories of documents sought by 3M are protected by 

the attorney-client privilege: (1) current and potential claimants who have asserted 

or may assert claims against defendants based on the use of the CAEv2; and (2) the 

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referral of claimants to a lawyer. Because the attorney-client privilege applies to 

information gathered by non-attorney agents such as TCA, who were retained to 

facilitate and assist the attorneys in rendering legal advice for existing and 

prospective clients related to the 3M litigation, the attorney-client privilege attaches 

to protect this information and 3M’s Motion to Compel should be denied. 

III. The documents sought by 3M are also not discoverable because they are

protected under the work-product doctrine.

Because the documents sought by 3M’s subpoena are privileged, the Court 

does not need to reach the question of whether the work-product doctrine offers an 

additional source of protection. See e.g., United States v. Gumbaytay, 276 F.R.D. 

671, 680 n.11 (M.D. Ala. Jan. 19, 2011). It nonetheless provides another independent 

basis for denying 3M’s Motion to Compel. See United States v. Nobles, 422 U.S. 

225, 238 n.11 (1975) (stating the work-product doctrine “is distinct from and broader 

than the attorney-client privilege”).

3M argues that TCA was hired solely to generate leads, not to “provide 

consultation regarding preparation of any claims for trial.” Dkt. 1 at 9. However, 3M 

incorrectly portrays TCA’s involvement. As explicitly noted in TCA’s opposition to 

the subpoena, “a lawyer is responsible for the content of attorney advertising; as 

such, law firms review the proposed web page content before it is published on 

TCA’s web site.” Dkt. 1 at 13. “TCA’s writers can draft the content, but the lawyers 

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are masters of the claim and strategy. The lawyers’ comments on the marketing 

reflects their opinions of the claim and strategy.” Id. 

Courts within the Eleventh Circuit have considered whether plaintiff waived 

work-product protection by sharing information with agents or other representatives. 

Those courts have held that that the work-product doctrine exists to protect an 

attorney’s work from discovery by an opponent. The work-product privilege exists 

“to promote the adversary system by safeguarding the fruits of an attorney’s trial 

preparations from the discovery attempts of the opponent.’” In re Trasylol Prods. 

Liab. Litig., 2009 WL 2575659, at *6 (S.D. Fla. Aug. 12, 2009)). Because the 

doctrine protects the adversary system, “it is not automatically waived by the 

disclosure to a third party.” In re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir.

2000).

Rather, “[w]ork-product protection is waived when protected materials are 

disclosed in a way that ‘substantially increases the opportunity for potential 

adversaries to obtain the information.’” Brown v. NCL (Bahamas) Ltd., 155 

F.Supp.3d 1335, 1339 (S.D. Fla. 2015). “Disclosure to [a] person with interest 

common to that of attorney or client [as between TCA and its advertising law firm] 

is not inconsistent with [the] intent to invoke [the] work product doctrine’s 

protection and would not amount to waiver.” In re Doe, 662 F.2d 1073, 1081 (4th

Cir. 1981). 

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Here, TCA shares a common interest with the law firms who hired TCA, in 

that the law firms and TCA shared information for the limited purpose of marketing 

information about the CAEv2 litigation to potential clients. See California 

Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 646 (E.D. Cal. 

2014) (“In the work product context, common interests are not construed so 

narrowly as to limit the exception only to co-parties. The shared interest may be only 

financial or commercial in nature.”). As TCA aptly put it, “TCA exchanged 

communications with the law firms, in confidence, to effectuate a shared purpose: 

to help the law firm and clients find each other. These communications did not 

increase the possibility of 3M’s obtaining the communications.” Dkt. 10 at 15.

Because email communications between TCA and the advertising law firm did not 

“substantially increase” the possibility of 3M’s obtaining the communications and 

is not inconsistent with the intent to invoke work-product doctrine’s protection, the 

work-product protection has not been waived. 

TCA has already produced select redacted communications between TCA and 

the law firms relating to the attorney advertising. Dkt. 10 at 13. TCA appropriately 

produced those emails that did not reflect the attorney’s mental impressions or 

opinions of the content. Id. The remaining category of documents are protected by 

the work-product doctrine to the extent they contain the mental impression and 

opinion of the plaintiffs’ lawyers about the 3M case, namely documents relating to 

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(1) any analysis done by TCA or any plaintiffs’ law firm regarding claimants or their 

claims; (2) marketing or advertising to current or potential claimants to join MDL 

No. 2885; and (3) communications and agreements between Plaintiffs’ law firms 

and TCA.

IV. The remaining documents sought by 3M are not discoverable because 

they are not relevant to the claims or defenses in this litigation.

Finally, 3M’s subpoena seeks documents relating to any financial interest or 

ownership that any person, including Plaintiffs’ law firms, has in TCA. Dkt. 1, Doc. 

1-1 at 12. Privilege and work-product concerns aside, this request is problematic 

because that it seeks information that is not relevant to the claims or defenses to the 

underlying litigation, is facially overbroad, and does not have any time parameters. 

A facially overbroad subpoena is unduly burdensome. Ubiquiti Networks, Inc., v. 

Kozumi USA Corp., 295 F.R.D. 517, 527 (N.D. Fla. 2013) (“A court may find that a 

subpoena presents an undue burden when the subpoena is facially overbroad.”).

Plaintiffs’ Leadership Counsel thus relies and adopts the arguments and authority set 

forth in TCA’s response to 3M’s Motion to Compel with respect to 3M’s request 

documents relating to the financial interest or ownership of TCA. 

CONCLUSION

Based on the foregoing, Plaintiffs’ Leadership Counsel requests that this 

Court deny 3M’s Motion to Compel. 

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DATED: January 20, 2021 /s/ Bryan F. Aylstock

Bryan F. Aylstock, Lead Counsel

Florida State Bar No. 078263

Aylstock, Witkin, Kreis & Overholtz, 

PLLC

17 East Main Street, Suite 200

Pensacola, FL 32502

Tel.: (850) 202-1010

baylstock@awkolaw.com

Shelley V. Hutson, Co-Lead Counsel

(Admitted Pro Hac Vice)

Texas State Bar No. 00788878

Clark, Love & Hutson, GP

440 Louisiana Street, Suite 1600

Houston, TX 77002

Tel.: (713) 757-1400

shutson@triallawfirm.com 

Christopher A. Seeger, Co-Lead 

Counsel

(Admitted Pro Hac Vice)

New Jersey State Bar No. 042631990

Seeger Weiss LLP

55 Challenger Road 6th Floor

Ridgefield Park, NJ 07660

Tel.: (212) 584-0700

cseeger@seegerweiss.com

Counsel for MDL Plaintiffs

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CERTIFICATE OF COMPLIANCE

WITH LOCAL RULES 7.1(F) AND 56.1(E)

I hereby certify that this motion complies with the word limit of Local Rules 

7.1(F) and 56.1(E) and contains 4325 words. 

s/ Bryan F. Aylstock

Case 3:20-mc-00074-MCR-GRJ Document 50 Filed 01/20/21 Page 21 of 22
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CERTIFICATE OF SERVICE

I hereby certify that on January 20, 2021, I caused a copy of the foregoing

to be filed through the Court’s CM/ECF system, which will serve all counsel of

record.

s/ Bryan F. Aylstock

Case 3:20-mc-00074-MCR-GRJ Document 50 Filed 01/20/21 Page 22 of 22