UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

_____________ DIVISION

1. MARCUS HENSLEY, and

2. LATERIAL HENSLEY,

Plaintiffs,

v.

1. 3M COMPANY, 

2. 3M OCCUPATIONAL SAFETY LLC,

3. AEARO TECHNOLOGIES LLC,

4. AEARO HOLDINGS, LLC, 

5. AEARO INTERMEDIATE, LLC and

6. AEARO, LLC

Defendants.

Case No. ___________

MOTION TO QUASH

Related to IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS LIABILITY 

LITIGATION, CASE NO. 3:19-MD-2885 

(Marcus and Laterial Hensley, Civil Case 

No. 7:20-cv-00093)

MOTION OF PLAINTIFFS MARCUS AND LATERIAL HENSLEY

TO QUASH SUBPOENA TO THIRD PARTY TIMOTHY WHITE

COME NOW Plaintiffs Marcus and Laterial Hensley to move to quash the subpoena 

issued to third party Timothy White by Defendants 3M Company, 3M Occupational Safety 

LLC, Aearo Technologies LLC, Aearo Holdings, LLC, Aearo Intermediate, LLC and Aearo, 

LLC (collectively, “3M”). The subpoena should be quashed pursuant to Fed.R.Civ.P. 

45(d)(3)(A) and the other authorities the Plaintiffs invoke and rely on.

Statement of Facts in Support of Relief

1. The subpoena to third party Timothy White is Exhibit 1 of this Motion. It was 

noticed by 3M to the Plaintiffs on October 30, 2020, the same day it was issued. Exhibit 2. The 

compliance time and date set by the subpoena is 5 p.m. on November 13, 2020. Id. Compliance 

is required in this judicial district. Id.

2. This Motion is timely filed prior to the time and date for compliance.

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3. 3M has not produced proof that the subpoena has been served.

4. The issuing court of the subpoena is the U.S.D.C. for the Northern District of 

Florida, for the proceeding IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY 

LITIGATION, CASE NO. 3:19-MD-2885 (Marcus and Laterial Hensley, Civil Case No. 7:20-

cv-00093).

5. The third party to whom the subpoena is issued, Timothy White, was counsel of 

record for Plaintiff Marcus Hensley in a prior proceeding. Exhibit 3. Any information requested 

from Mr. White by 3M by the subpoena arises from that attorney-client relationship, to the 

exclusion of other reasons.

6. Mr. Hensley has not waived the attorney-client privilege which arises from, 

attaches to, and protects from disclosure information in Mr. White’s possession. Mr. Hensley 

has not consented to any production of information by White to 3M which may be responsive to 

the subpoena. Nor has Ms. Hensley waived any privilege or consented to any such production.

7. 3M demands that Mr. White produce all non-privileged communications, case 

files, documents, and other information based on his representation of Mr. Hensley in the prior 

proceeding. See Exhibit 1 at p. 5, ¶¶ 7-8. The other requests in the subpoena encompass and 

duplicate the discovery requests of 3M to Mr. and Ms. Hensley in the underlying case in the 

issuing court. The Hensleys’ responses in the underlying case show that 3M has sought and 

received from the Plaintiffs information in their possession which (1) relates to Mr. Hensley’s 

hearing loss, military service, and use of the defective earplug at issue in the underlying case, 

and (2) is not privileged from disclosure. See Exhibits 4-5. 3M demands similar information 

from Mr. White. Exhibit 1 at pp. 4-5, ¶¶ 1-6, 9-10.

8. 3M’s requests to the Plaintiffs in the underlying case are broader than the requests 

to Mr. White, and due to that breadth, the requests in the underlying case generally capture or 

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address the same information sought from White. Compare Exhibit 1, with Exhibits 4-5. 

However, the requests to the third party, given his role as Mr. Hensley’s prior attorney, capture 

information not possessed by the Hensleys or which they would not have disclosed in the 

underlying case based on privilege. This includes privileged client communications (inclusive 

of confidential marital communications), attorney work-product, and publicly-available (non 

privileged) information such as pleadings and hearing transcripts. Notwithstanding 3M’s use of 

the “non-privileged” qualifier, 3M demands from Mr. White the “case files” and the attorney’s 

notes of conversations with Mr. Hensley, among the other requests for information. Exhibit 1 

at p. 5, ¶ 8 & Sch. A. Definition No. 1 (demanding case files and defining communications to 

include “[d]ocuments evidencing oral communications”).

9. The subpoena provides no instruction or explanation of what, in 3M’s view, 

constitutes a privileged or a non-privileged oral or written communication between Mr. White 

and his client Mr. Hensley, or what is a privileged or non-privileged case file. The subpoena 

gives no instruction to provide a privilege log for information withheld for privilege (whether 

attorney-client privilege, work-product privilege, or martial communication privilege), and it 

does not alert Mr. White to the protective order which has been entered in the underlying case

by the subpoena issuing court (Pretrial Order No. 9, “STIPULATED ORDER GOVERNING 

CONFIDENTIALITY AND PRIVILEGE.”). 3M makes no provision for withholding medical 

and health information protected from disclosure by law, and it does not even purport to provide 

a release to White by Mr. Hensley for disclosure of any such protected health or medical 

information. 

10. The subpoena asks the third party for non-privileged information by Ms. Hensley, 

again without an instruction or explanation of what, in 3M’s view, constitutes a privileged or 

non-privileged communication. Ms. Hensley possesses a privilege in any record in the attorneys’ 

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possession which is a confidential marital communication. She repeatedly has invoked that 

privilege against 3M’s discovery requests to her in the underlying case in the issuing court. E.g., 

Exhibit 4 at p. 5.

11. On October 1, 2020, one month before 3M noticed and issued the subpoena, the 

Plaintiffs offered to review the subpoena to determine if they could agree in any degree to 

requests to Mr. White. Exhibit 6. 3M never replied, choosing instead to force judicial 

intervention in the matter.

Argument

This Court, because it is the compliance court, has jurisdiction to hear and decide this 

Motion, or it may transfer the Motion to the court which issued the subpoena. E.g., Diamond 

Consortium, Inc. v. Manookian, 2016 U.S. Dist. LEXIS 195437 (E.D. Tex. Oct. 25, 2016) The 

subpoena is due to be quashed for the reasons below.

1. The Plaintiffs have standing to move to quash.

The Plaintiffs, because they assert and claim “a personal right or privilege” in the 

information subpoenaed from the third party, “have standing to challenge the subpoena[].” 

Cruthis v. Vision's, 2013 U.S. Dist. LEXIS 171483, at *5-6 (E.D. Ark. Dec. 5, 2013). 

Specifically, “a party to litigation may raise or join in a motion to quash in order to raise a claim 

of privilege.” Int'l Controls & Measurements Corp. v. Honeywell Int'l, Inc., 2018 U.S. Dist. 

LEXIS 194993, at *5 (D. Minn. Nov. 15, 2018). Fed.R.Civ.P. 45(d)(3)(A)(iii) states that the 

Court "must quash or modify a subpoena that . . . requires disclosure of privileged or other 

protected matter, if no exception or waiver applies."

Without question, Mr. Hensley possesses a privilege in Mr. White’s record of service as 

Hensley’s attorney. “[C]onfidential communications between an attorney and his client are 

absolutely privileged from disclosure against the will of the client. That rule expresses the 

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‘attorney-client’ privilege proper.” Diversified Indus. v. Meredith, 572 F.2d 596, 601 (8th Cir. 

1977). Accord 12 Okl. St. § 2502 (“Attorney-Client Privilege”). The privilege extends to 

communications “made for the purpose of facilitating the rendering of legal services to the 

client.” United States v. Spencer, 700 F.3d 317, 320 (8th Cir. 2012) (citing United States v. 

Horvath, 731 F.2d 557, 561 (8th Cir. 1984)). It extends to Mr. White’s work product for Hensley. 

E.g. Edelstein v. Optimus Corp., 2012 U.S. Dist. LEXIS 82340, at *11 (D. Neb. June 14, 2012) 

("Because the work product privilege protects not just the attorney-client relationship but the 

interests of attorneys to their own work product, both the attorney and the client hold the 

privilege.") (emphasis added) (citing In re Green Grand Jury Proceedings, 492 F.3d 976, 980 

(8th Cir. 2007)).

Likewise, for the same reasons above, Ms. Hensley possesses and asserts a privilege in 

any record Mr. White possesses which is a martial communication the attorney obtained because 

he represented the spouse. Ms. Hensley has standing with her husband, accordingly.

2. 3M cannot show that the Hensleys waived the privileges.

The Plaintiffs have not waived their privileges, and 3M cannot show otherwise. Indeed, 

3M ignored the Plaintiffs’ offer to review the requests to Mr. White beforehand and potentially 

compromise by agreeing to them in any degree. The fact that the privileges operate against the 

subpoena is key, notwithstanding 3M’s frequent use of the qualifier “non-privileged” to state the 

requests. As shown, 3M demands all the attorney’s case files without instruction or explanation 

for withholding for privilege or reference to the protective order of the issuing court. The 

likelihood that the privilege will be breached by the third party’s response, if he responds, is 

high. The likelihood cannot be discounted, especially when the documents demanded include 

attorney notes of conversations with Mr. Hensley, as shown. The risk is clear and compounded

by 3M’s unqualified demand for (1) all information (not privileged and privileged) from law 

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firms concerning Mr. Hensley, irrespective of any connection to the matter in which Mr. White 

served as Hensley’s counsel, and (2) all recent communications (not privileged and privileged) 

with the client. Exhibit 1 at p. 6, ¶¶ 11-12. Mr. Henley had more than one firm and attorney 

represent him in the matter at different times. 3M noticed and issued the same subpoena to those 

other attorneys (there are three of them) on October 30th, the same day it subpoenaed Mr. White. 

(The compliance court in those other three instances is not this Court.) These unqualified 

requests appear to overtly target privileged information. Accordingly, for that reason and the 

other reasons set out in this Motion, the Plaintiffs are due reasonable relief to thwart the risk that 

their privileged information may be disclosed.

3. Plaintiffs were not afforded a reasonable time to oppose the subpoena.

A party’s intent to subpoena documents from third parties must be noticed on the 

opposing party a reasonable amount of time before the subpoenas are issued and served. This 

reasonable amount of time between service of the notice and actual issuance and service of the 

subpoenas is intended to afford the opponent an opportunity to object to the discovery and or to 

move to quash the subpoenas. "This notification requirement exists, in part, to allow a party to 

object to both the substance of the subpoena and its service on the nonparty." United States 

EEOC v. Bojangles' Rests., Inc., 2017 U.S. Dist. LEXIS 105347, at *5 (E.D.N.C. July 6, 2017) 

(quoting Solais v. Vesuvio's II Pizza & Grill, Inc., 2015 U.S. Dist. LEXIS 140798, 2015 WL 

6110859 (M.D.N.C. 16 Oct. 2015)). The subpoena fails that test for three reasons: (1) 3M issued 

and undertook to serve it the same day it notified Plaintiffs of their intent to serve it, (2) 3M 

demanded compliance from Mr. White by the 14th day after issuance (or a lesser amount of 

time if service took place a day or more after issuance), and (3) 3M refused and ignored the 

Plaintiffs’ offer to review and approve or oppose the requests to Mr. White before the subpoena 

was issued. 

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4. The subpoena fails to afford a reasonable time for compliance.

Fed.R.Civ.P. 45(d)(3)(A) requires that non-parties be afforded a reasonable time to 

comply with a subpoena. This subpoena fails that test, because it does not provide adequate 

time to undertake and complete the time-consuming steps required to identify and produce 

responsive, non-privileged documents and to otherwise comply with the instructions and 

requests in the subpoena. This failure is conspicuous because 3M expects the third-party

attorney, in a matter of days, to review the case files and produce communications with or from 

Mr. Hensley which are not protected from disclosure by (1) the attorney-client relationship, (2)

the work-product doctrine (inclusive of attorney notes of conversations with the client), or (3) 

the martial communication privilege (if Hensley provided marital communications to his 

counsel). It is highly likely that all such communications are privileged, but 3M nonetheless 

demands that the attorney immediately and completely comb and examine the files on the off 

chance that the search produces a non-privileged communication. This assumes 3M is taken at 

face value that it seeks only needles in the haystack (non-privileged items), not the haystack

itself, i.e., the case files entirely.

5. The subpoena is duplicative and cumulative.

3M seeks information from the non-party that it already sought from the Plaintiffs, 

primarily communications on the subjects of Mr. Hensley’s military service, hearing injury, and 

use of the defective earplug. The subpoenas are due to be quashed for that reason, as follows:

[A] district court has discretion to modify or quash a subpoena if it seeks discovery that 

is "unreasonably cumulative or duplicative, or is obtainable from some other source that 

is more convenient, less burdensome, or less expensive; [or] the party seeking discovery 

has had ample opportunity by discovery in the action to obtain the information sought." 

United States v. Dean Foods Co., 2011 U.S. Dist. LEXIS 1848, at *2-3 (E.D. Wis. Jan. 3, 2011) 

(citing Fed. R. Civ. P. 26(b)(2) (cited by Breland v. Levada EF Five, LLC, 2015 U.S. Dist. 

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LEXIS 192553 (S.D. Ala. May 1, 2015)). Accord Cody v. City of St. Louis, 2018 U.S. Dist. 

LEXIS 186017, at *7 (E.D. Mo. Oct. 31, 2018) ("If the party seeking the information can easily 

obtain the same information without burdening the non-party, the court will quash the 

subpoena."); see also Med. Components Inc. v. Classic Med., Inc., 210 F.R.D. 175, 180 n.9 

(M.D.N.C. 2002) (“[T]he Court may first consider whether information should be obtained by 

direct discovery from a party, as opposed to from a non-party, and that the court should give 

special weight to the unwanted burden thrust upon non-parties when evaluating the balance of 

competing needs.”).

6. The subpoena is unduly burdensome in other respects.

In addition to the inadequate time to comply and the duplicative character of the 

subpoena, documents requests in the subpoena are unjust and unduly burdensome because they 

would require time-consuming and expensive steps to find and produce responsive, nonprivileged documents possessed by Mr. White. This burden is not the third party’s alone, but 

also the Plaintiffs’. They oppose the subpoena based on their direct, personal interest and 

privileges in the documents. They have standing to assert those privileges and to win relief 

based on them, so it follows that they are entitled to review the records White possesses and 

withhold any documents from the records before Mr. White responds to 3M by producing any 

information. The Hensleys will have to comb his case files on the off chance that any 

communications with the attorney, or other information in the files, are not privileged. 3M 

imposes that burden on the Hensleys, which is grossly unwarranted given that 3M already has 

obtained the same discovery from them.

To be sure, if 3M incorrectly argues that Mr. White alone bears the burden, its argument 

will fail nonetheless, because it cannot show that it has taken steps to avoid this undue burden 

and expense on the non-party. The burden is very heavy, and 3M cannot show otherwise, 

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because Mr. White will have to examine each item in the case files and assess it for privilege. 

This failure to take steps to avoid imposing the burden is overwhelming ground alone for 

quashing the subpoenas. “Fed.R.Civ.P. 45 has since been amended and . . . makes it quite clear 

that the subpoenaing party has a duty to take steps to avoid imposing undue burden or expense 

on a subpoenaed non-party and that the Court must enforce that duty.” Med. Components Inc. 

v. Classic Med., Inc., 210 F.R.D. 175, 180 n.9 (M.D.N.C. 2002).

7. The subpoena seeks information which is not proportional.

No effort to obtain proportional discovery reasonably related to needs in the underlying 

case is evident in certain of the requests in the subpoena. See Scott v. Eglin Fed. Credit Union, 

2017 U.S. Dist. LEXIS 57034, at *7-9 (N.D. Fla. Apr. 13, 2017). 3M asks for all information 

on Mr. Hensley’s military service in general, all case files in the matter for which Mr. White 

served as Hensley’s attorney, all communications with other law firms concerning Mr. Hensley

(whether privileged or not, no qualifier used), and all recent communications with the client 

(same). Exhibit 1 at pp. 4-6, ¶¶ 5, 8, 11-12. These requests, assuming they are even marginally 

related to any issue of fact in the underlying case (the Plaintiffs contend otherwise), are 

improper and objectionable under Fed.R.Civ.P. 26(b)(1). See Scott, 2017 U.S. Dist. LEXIS 

57034, at *7-9. Proportionality aside, these requests are overly broad, another reason for relief. 

See EEOC v. Unit Drilling Co., 2014 U.S. Dist. LEXIS 3685, at *10 (N.D. Okla. Jan. 13, 2014) 

(“The subpoenas are overbroad on their face. . . The subpoenas are overbroad as to the time 

period for which information is sought as well as to the breadth of personal information 

sought.”).

Conclusion

The subpoena is due to be quashed, or the Court should order that the Plaintiffs, before 

any item from the third party is produced to 3M, shall review the records at issue which Mr. 

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White possesses and to withhold from those records all (1) privileged information, (2) 

information which is not proportional to needs in the underlying case, and (3) publicly-available 

information such as hearing transcripts. The Plaintiffs would willingly accept that burden of 

review to protect their privileges, assuming the subpoena is not denied outright, ending the 

matter entirely, which is the foremost relief the Hensleys seek.

Dated: November 13, 2020

Respectfully Submitted,

/s/ Matthew B. Patterson

Matthew B. Patterson, OK BAR NO 22266

Edwards & Patterson

321 South Third, Suite 1

McAlester, OK 74501

PH: 918-302-3700

FAX: 918-302-3701

Mpatterson@edwardspattersonlaw.com

and

/s/ Taylor C. Bartlett

(admission pro hac vice to be applied for) 

Taylor C. Bartlett

Heninger Garrison Davis, LLC

2224 First Avenue North

Birmingham, AL 35213

Phone: 205.427.6630

Fax: 205-380-8085

taylor@hgdlawfirm.com

Counsel for the Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that I caused a true and correct copy of the above and foregoing document 

to be served by overnight delivery, or via e-mail, at the email address shown, to the following 

person and counsel of record this day 13th day of November, 2020:

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Timothy White

7906 East 55th Street

Tulsa, Oklahoma 74145

Larry Hill

Moore, Hill & Westmoreland, PA

350 W. Cedar St.

Pensacola, FL 32502

(850) 434-3541

lhill@mhw-law.com

Counsel for Defendants 3M Company,

3M Occupational Safety LLC, Aearo

Technologies LLC, Aearo Holdings,

LLC, Aearo

/s/ Matthew B. Patterson____

Matthew B. Patterson

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