UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:22-CV-61853-DIMITROULEAS/AUGUSTIN-BIRCH

VANGUARD PLASTIC SURGERY, PLLC, 

Plaintiff,

v. 

AETNA LIFE INSURANCE COMPANY, 

Defendant.

________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANT’S MOTION TO COMPEL AND GRANTING IN PART 

AND DENYING IN PART PLAINTIFF’S MOTION TO MODIFY SUBPOENAS

This cause comes before the Court on Defendant Aetna Life Insurance Company’s Motion 

to Compel, in which Defendant seeks better responses from Plaintiff for numerous requests for 

production of documents and interrogatories. DE 56. Defendant’s Motion to Compel is briefed 

at DE 56, DE 58, and DE 59. This cause also comes before the Court on Plaintiff Vanguard Plastic 

Surgery, PLLC’s Motion to Modify, in which Plaintiff seeks to remove various topic designations 

and requests for production of documents from two subpoenas Defendant issued to third parties. 

DE 61. Plaintiff’s Motion to Modify is briefed at DE 55 and DE 57. The Court held a hearing on 

the Motions on July 19, 2023. The Court has carefully considered the briefing, the arguments that 

counsel made during the hearing, and the record and is otherwise fully advised in the premises. 

For the reasons set forth below, Defendant’s Motion to Compel is GRANTED IN PART AND 

DENIED IN PART and Plaintiff’s Motion to Modify is GRANTED IN PART AND DENIED 

IN PART. 

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I. BACKGROUND

Plaintiff is a company that provides medical services that include emergency and surgical 

services. Defendant is a company that provides health insurance. In this lawsuit, Plaintiff sought 

additional compensation above what Defendant agreed to pay for medical services Plaintiff 

provided to four insured patients: L.B., B.H., R.M., and R.S. However, the Honorable William P. 

Dimitrouleas, Judge of District Court, previously granted Defendant’s Motion to Dismiss and 

dismissed all but two Counts of the Amended Complaint. See DE 32. The sole remaining Counts 

are Counts XXVII and XXVIII. Both Counts seek compensation for emergency services and care 

under Fla. Stat. § 641.513(5). See Fla. Stat. § 641.513(5) (“Reimbursement for [emergency 

services and care] by a provider who does not have a contract with the health maintenance 

organization shall be the lesser of: (a) The provider’s charges; (b) The usual and customary 

provider charges for similar services in the community where the services were provided; or 

(c) The charge mutually agreed to by the health maintenance organization and the provider within 

60 days of the submittal of the claim.”).

In Count XXVII, Plaintiff seeks additional compensation for an alleged emergency surgery 

performed on L.B. on February 12, 2021, which the parties refer to as L.B.’s third surgery. L.B. 

had bilateral mastectomies on June 11, 2020, and had breast reconstruction surgery on February 

10, 2021. Two days later, L.B. had the third surgery after allegedly developing hematoma and

thrombosis, which Plaintiff maintains required immediate medical attention. Dr. Dreszer 

performed this surgery at Plantation General Hospital (“Plantation General”). L.B. had breast 

reconstruction surgery, her fourth surgery, on August 20, 2021.

In Count XXVIII, Plaintiff seeks additional compensation for an alleged emergency 

surgery performed on R.S. on January 11, 2019. On that day, R.S. allegedly suffered a laceration 

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of his right hand and a partial amputation of a right finger. Dr. Fletcher performed reconstructive 

surgery at Broward Health Medical Center (“Broward Health”). 

Defendant propounded various requests for production of documents and interrogatories 

to Plaintiff, and Plaintiff’s responses included several objections. In the instant Motion to Compel, 

Defendant seeks an Order requiring Plaintiff to provide better responses to 35 requests for 

production of documents and 9 interrogatories. The Court addresses the Motion to Compel in 

Section III. Defendant also served Plantation General and Broward Health with subpoenas to 

testify at deposition and to bring certain documents to the deposition. In the instant Motion to 

Modify, Plaintiff seeks an Order removing 5 topic designations and 11 requests for production of 

documents from each subpoena. The Court addresses the Motion to Modify in Section IV. 

II. SCOPE OF DISCOVERY

The issues raised in the Motion to Compel and the Motion to Modify are interrelated in 

various respects. In ruling on both Motions, the Court has of course considered the proper scope 

of discovery: 

Parties may obtain discovery regarding any nonprivileged matter that is relevant to 

any party’s claim or defense and proportional to the needs of the case, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or 

expense of the proposed discovery outweighs its likely benefit. Information within 

this scope of discovery need not be admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact more or less 

probable than it would be without the evidence” and “the fact is of consequence in determining 

the action.” Fed. R. Evid. 401. “With respect to the issue of ‘relevancy’ of discovery, discovery 

rules ‘are to be accorded a broad and liberal treatment.’” Kreuzfeld A.G. v. Carnehammar, 

138 F.R.D. 594, 607 (S.D. Fla. 1991) (quoting Hickman v. Taylor, 329 U.S. 495, 507-08 (1947)). 

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Nevertheless, discovery should be tailored to the issues in the case and is not a fishing expedition. 

Engelhardt v. Svensk Mgmt., Inc., No. 08-62063-CIV, 2009 WL 10667463, at *2 (S.D. Fla. June 

9, 2009). 

III. DEFENDANT’S MOTION TO COMPEL

The parties’ briefing on the Motion to Compel divided the disputed requests for production 

of documents and interrogatories into four Categories, A through D. The Court structured the 

arguments and questioning during the hearing around these four Categories and addresses each

Category in turn in this Order. In Section III.E., the Court addresses Plaintiff’s objections to 

producing records and information in native format and Plaintiff’s confidentiality-related 

objections. In making its rulings as to what responses Plaintiff must provide, the Court takes no 

position as to whether Plaintiff already has fully provided the court-ordered responses. Based on 

the record, it is not entirely clear to the Court what documents Plaintiff has delivered to Defendant 

thus far.1

 

A. Requests relating to whether L.B.’s third surgery and R.S.’s surgery constituted 

emergency services and care. 

Request for production of documents #’s 25, 29-30, 32-33, 37, 54-55, 61, and 64 and 

interrogatory #’s 3 and 11-12 fall under Category A. In this Category, Defendant seeks 

information to ascertain whether L.B.’s third surgery and R.S.’s January 2019 surgery truly 

constituted emergency services and care under the relevant Florida statutes and caselaw.2

 In a 

1 The Court’s confusion on this point is due at least in part to the fact that Plaintiff objected to but then provided a 

response to numerous requests for production and interrogatories. The Order Setting Discovery Procedures 

specifically addresses such a practice and the confusion that it can create. See DE 27 at 5. The Court reminds the 

parties that they must fully comply with the Order Setting Discovery Procedures.

2 During the hearing, the parties disputed the proper definition of “emergency services and care” and whether a 

situation may constitute an emergency even if there is a brief period of coordination. As the parties have not briefed 

either the definition of emergency services and care under the law or that definition as it may apply to the medical 

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nutshell, Defendant seeks L.B.’s entire medical file (including the records for L.B.’s first, second, 

and fourth surgeries) and R.S.’s entire medical file (even if it includes records for treatment or 

services other than the January 2019 surgery).3 

“[W]hen relevancy is not apparent, the burden is on the party seeking discovery to show 

the relevancy of the discovery request.” Am. Fed’n of State, Cnty. & Mun. Emps. (AFSCME)

Council 79 v. Scott, 277 F.R.D. 474, 477 (S.D. Fla. 2011) (quotation marks omitted). Defendant 

maintains that the entire medical files are needed to ascertain the circumstances under which L.B. 

came under Plaintiff’s care for the third surgery and the circumstances under which R.S. came 

under Plaintiff’s care for the January 2019 surgery. That is, there may be something in the files 

demonstrating that those surgeries were not actually emergencies.

 Defendant has not pointed to any specific information in the documents it already has that 

would indicate it might find relevant information in the medical files outside of the records for 

L.B.’s third surgery and R.S.’s January 2019 surgery. Moreover, even if there could be something 

in the entire medical files that could reflect on the emergency nature of those two surgeries and 

thus could be relevant to the remaining claims in this litigation, requiring Plaintiff to produce the 

entire medical files for L.B. and R.S. would be disproportionate to the needs of this case. The 

Court cannot see how, if L.B.’s third surgery and R.S.’s January 2019 surgery were not 

emergencies, that fact would not be reflected in the records for those surgeries. Thus, Plaintiff’s 

objections to producing L.B.’s medical file other than the records for the third surgery and to 

producing R.S.’s medical file other than the records for the January 2019 surgery are sustained. 

services at issue in this case, the Court takes no position as to the proper definition. Precisely defining emergency 

services and care is unnecessary to resolve the instant discovery disputes. 

3 During the hearing, Plaintiff represented to the Court that Plaintiff has no knowledge of treatment or services 

provided to R.S. other than for the January 2019 surgery.

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Specifically, for request for production #’s 25 (documents and information concerning or 

relating to medical services), 32 (documents and communications reflecting efforts to obtain 

pre-authorizations), 33 (documents, communications, and information concerning or relating to 

scheduling of medical services), 54 (documents and communications with patients relating to or 

concerning medical services), and 61 (documents and communications with patients relating to or 

concerning any services), Plaintiff need only produce those documents, communications, and 

information for the medical services that L.B. received for the third surgery and that R.S. received 

for the January 2019 surgery. Plaintiff must produce documents in response to request for 

production # 64 (documents identified, consulted, reviewed, or relied upon to answer the 

interrogatories), with the understanding that this Order has limited Plaintiff’s obligation to answer 

certain interrogatories. Plaintiff need not produce documents in response to request for production 

#’s 29 (documents and communications reflecting efforts to obtain pre-authorization for L.B.’s 

second surgery), 30 (documents and communications reflecting efforts to obtain pre-authorization 

for L.B.’s fourth surgery), 37 (medical records relating to medical services other than those that 

are the subject of this lawsuit), or 55 (documents and communications with patients relating to 

medical services other than those identified in the Complaint). For interrogatory #’s 3 

(identification of individuals having knowledge concerning the issues in this lawsuit), 11 

(identification of communications with patients regarding medical services), and 12 (identification 

of date, location, and time of consultations, appointments, meetings, or other iterations with 

patients about surgeries or procedures), Plaintiff need only respond for the medical services that 

L.B. received for the third surgery and that R.S. received for the January 2019 surgery.

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B. Requests relating to the usual and customary provider charges for similar services 

in the community where the services were provided.

Request for production of documents #’s 2, 5, 40-42, 44-46, and 48-53 and interrogatory 

#’s 2, 5-6, and 13 fall under Category B. In this Category, Defendant seeks information that it 

maintains is relevant to a determination of the “usual and customary provider charges for similar 

services in the community where the services were provided” to L.B. and R.S. See Fla. Stat. 

§ 641.513(5)(b). Usual and customary charges under § 641.513(5)(b) are “the fair market value 

of the services provided,” with fair market value being “the price that a willing buyer will pay and 

a willing seller will accept in an arm’s-length transaction.” Baker Cnty. Med. Servs., Inc. v. Aetna 

Health Mgmt., LLC, 31 So. 3d 842, 845 (Fla. 1st Dist. Ct. App. 2010). It is “appropriate to consider 

the amounts billed and the amounts accepted by providers” to determine the fair market value of 

services. Id.

As an initial matter, Plaintiff has objected to several requests falling under Category B by 

stating that it has no responsive documents in its possession, custody, or control because it utilized 

a third-party billing company. A party may serve on another party a request to produce “items in 

the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “Under Fed. R. 

Civ. P. 34, control is the test with regard to the production of documents. Control is defined not 

only as possession, but as the legal right to obtain the documents requested upon demand.” 

Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984); see also Costa v. Kerzner Int’l Resorts, 

Inc., 277 F.R.D. 468, 471 (S.D. Fla. 2011) (explaining that control “does not require that a party 

have legal ownership or actual physical possession of the documents at issue; indeed, documents 

have been considered to be under a party’s control (for discovery purposes) when that party has 

the right, authority, or practical ability to obtain the materials sought on demand” (quotation marks 

omitted)). 

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When questioned concerning this issue of control during the hearing, Plaintiff did not assert 

that it has no right to obtain documents upon demand from the third-party billing company it 

previously utilized. Rather, Plaintiff asserted that Defendant itself should subpoena the third-party 

billing company to produce the documents and itself should incur the expense of that discovery. 

At this juncture, the Court is not in a position to allocate the costs of discovery from the third-party 

billing company or the costs of any other discovery. The Court concludes only that, if Plaintiff 

has the right to obtain documents upon demand from the third-party billing company, having 

considered factors such as the importance of the billing records to the issues in this case and the 

relative burdens of obtaining their production, Plaintiff must obtain the documents from the thirdparty billing company in order to respond to Defendant’s requests. See Fed. R. Civ. P. 26(b)(1)-(2) 

(defining the scope of discovery and circumstances under which a court may limit discovery). The 

Court’s ruling that Plaintiff must obtain documents from the third-party billing company to 

respond to Defendant’s requests also applies to any request for production or interrogatory that is 

in dispute under any other Category.

That said, the Court, again having considered the proper scope of discovery, concludes that 

many of the requests at issue under Category B should be narrowed. Specifically, for request for 

production # 2, Plaintiff must produce documents and information reflecting the amounts billed 

and amounts accepted for similar types of services to the medical services that L.B. received for 

the third surgery, but only for geozips starting with 333-- and only for the period of January 1, 

2020 through December 31, 2021.4

 For request for production # 5, Plaintiff must produce 

4 Plaintiff has not objected that requests for information relating to “similar types of services” are vague, and the 

parties appear to be in agreement that this phrase refers to services with the same medical codes as the services that 

L.B. and R.S. received. In limiting the geographic scope of Defendant’s requests, the Court notes that “community,” 

as that word is used in Fla. Stat. § 641.513(5)(b), is not susceptible to a precise definition. See N. Shore Med. Ctr., 

Inc. v. Cigna Health & Life Ins. Co., 68 F.4th 1241, 1244 (11th Cir. 2023) (“Community is a broad term that can mean 

such things as neighborhood, vicinity, or locality or the people with common interests living in a particular area. 

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documents and information reflecting the amounts billed and amounts accepted for similar types 

of services to the medical services that R.S. received for the January 2019 surgery, but only for 

geozips starting with 333-- and only for the period of January 1, 2018 through December 31, 2019. 

For request for production # 40, Plaintiff must produce (1) Chargemaster or other 

documents effective for the period of January 1, 2020 through December 31, 2021, reflecting the 

standard charges for the medical services that L.B. received for the third surgery; and 

(2) Chargemaster or other documents effective for the period of January 1, 2018 through December 

31, 2019, reflecting the standard charges for the medical services that R.S. received for the January 

2019 surgery. For request for production # 41, Plaintiff must produce documents reflecting the 

analysis relied upon to establish the charges reflected in the documents produced in response to 

request for production # 40 as the Court has limited the scope of request for production # 40. For 

request for production # 42, Plaintiff must produce documents reflecting the analysis relied upon 

to establish the charges billed for the medical services that L.B. received for the third surgery and 

that R.S. received for the January 2019 surgery.

For request for production # 44, Plaintiff must produce communications with its billing 

vendor relating to the medical services that L.B. received for the third surgery and that R.S. 

received for the January 2019 surgery. For request for production # 45, Plaintiff must produce 

communications with Elite relating to the medical services that L.B. received for the third surgery 

and that R.S. received for the January 2019 surgery.5

 Plaintiff need not respond to request for 

production # 46, which requests a copy of its operative agreement with Elite. During the hearing, 

Nothing inherent in the word’s meaning requires a particular size, scope, or makeup.” (citations and quotation marks 

omitted)). The Court has narrowed the geographic scope and time frame of various requests for production and 

interrogatories after considering the factors under Fed. R. Civ. P. 26(b)(1) and (2).

5 Elite is the name of Plaintiff’s former third-party billing company. Request for production #’s 44 and 45 likely 

request identical communications.

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Defendant clarified that request for production # 46 is intended to evaluate the veracity of 

Plaintiff’s contention that it does not have control over documents held by its third-party billing 

company. As discussed above, Plaintiff is no longer asserting that it has no right to obtain (and 

therefore no control over) documents from the third-party billing company, and therefore request 

for production # 46 seeks irrelevant information.

For request for production # 48, Plaintiff must produce (1) documents reflecting contracts 

or agreements with commercial payors in effect for the period of January 1, 2020 through 

December 31, 2021, establishing rates for the same services or services similar to the medical 

services that L.B. received for the third surgery in geozips starting with 333--; and (2) documents 

reflecting contracts or agreements with commercial payors in effect for the period of January 1, 

2018 through December 31, 2019, establishing rates for the same services or services similar to 

the medical services that R.S. received for the January 2019 surgery in geozips starting with 333--. 

For request for production # 49, Plaintiff must produce files concerning agreements, contracts, and 

memorandum of understanding with the listed payors in effect from January 1, 2018 through 

December 31, 2021. For request for production # 50, Plaintiff must produce documents and 

information evidencing or supporting the amounts it contends represent the usual and customary 

charges for the medical services that L.B. received for the third surgery and that R.S. received for 

the January 2019 surgery. For request for production # 51, Plaintiff must produce documents and 

information evidencing or supporting the amounts of reimbursement it contends represent the fair 

market value of the medical services that L.B. received for the third surgery and that R.S. received 

for the January 2019 surgery. For request for production # 52, Plaintiff must produce materials it 

contends reflect the usual and customary charges for the medical services that L.B. received for 

the third surgery and that R.S. received for the January 2019 surgery. For request for production 

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# 53, Plaintiff must produce documents and information evidencing or supporting the amounts or 

rates it claims Defendant should have paid for the medical services that L.B. received for the third 

surgery and that R.S. received for the January 2019 surgery.

 For interrogatory # 2, Plaintiff must respond with respect to (1) the medical services that 

L.B. received for the third surgery in geozips starting with 333-- for the period of January 1, 2020 

through December 31, 2021; and (2) the medical services that R.S. received for the January 2019 

surgery in geozips starting with 333-- for the period of January 1, 2018 through December 31, 

2019. For interrogatory # 5, Plaintiff must respond by naming employees who provide billing 

functions, to the extent those names are available to Plaintiff. See Fed. R. Civ. P. 33(b)(1)(B) 

(requiring a party that is a business to furnish information available to the party when answering 

interrogatories); Ecometry Corp. v. Profit Ctr. Software, Inc., No. 06-80083-Civ, 2007 WL 

9706934, at *6 (S.D. Fla. Mar. 14, 2007) (“Parties responding to interrogatories cannot limit their 

answers to information within their own knowledge and ignore information that is immediately 

available to him or under his control.”). For interrogatory # 6, Plaintiff must respond by naming 

individuals who participated in the determination of the billed amounts for the medical services 

that L.B. received for the third surgery and that R.S. received for the January 2019 surgery, to the 

extent those names are available to Plaintiff. Plaintiff need not respond to interrogatory # 13, 

which asks it to identify lawsuits for underpayment filed against Defendant or Aetna Health Inc. 

The Court is skeptical that a response to interrogatory # 13 would include information that is 

relevant to the remaining claims in this litigation and that is not already revealed through other 

interrogatories or requests for production. To the extent that a response to interrogatory # 13 might 

include relevant information, requiring Plaintiff to respond would be disproportionate to the needs 

of this case. 

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C. Requests relating to Plaintiff’s standing to bring claims for reimbursement.

Request for production of documents #’s 14-15, 18-20, and 62-63 fall under Category C. 

In this Category, Defendant seeks information that it maintains is relevant to the following 

affirmative defense pled in the Answer:

DE 41 at 19.

Plaintiff disputed the merits of this affirmative defense during the hearing. However, the 

Court is not resolving at this discovery stage whether the affirmative defense is meritorious. 

See, e.g., Props. of the Villages, Inc. v. Kranz, No. 5:19-cv-647-Oc-30PRL, 2020 WL 6393834, 

at *3 (M.D. Fla. Nov. 2, 2020) (“[D]uring discovery the court is not required to examine the 

likelihood of success or the merits of any claims or defenses, rather, the court must consider 

whether the information is relevant to the claims and defenses in the action, and then ask whether 

the proposed discovery is proportional to the needs of the case.” (quotation marks omitted)); 

Wachovia Fin. Servs., Inc. v. Birdman, No. 09-81252-CIV, 2010 WL 11506642, at *2 (S.D. Fla. 

Oct. 25, 2010) (“Federal Rule of Civil Procedure 26(b)(1) allows discovery on any party’s claims 

or defenses; there is no requirement that a party obtain a threshold determination of the merits of 

those claims before proceeding with discovery.”).

Having considered Defendant’s affirmative defense and the proper scope of discovery, the 

Court concludes that Plaintiff must respond to the requests for production at issue under Category 

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C but that some of the requests should be narrowed. Plaintiff must produce documents in response 

to request for production #’s 14 and 15, which request employment agreements with Drs. Fletcher 

and Dreszer. For request for production #’s 18 and 19, which request documents reflecting that 

Plaintiff had authority to submit claims for medical services, Plaintiff must respond only as to its 

authority to submit claims for services that Drs. Fletcher and Dreszer provided and only as to 

authority that was in effect as of the dates of L.B.’s third surgery and R.S.’s January 2019 surgery. 

For request for production # 20, Plaintiff must produce documents reflecting agreements, 

contracts, or other arrangements with medical providers reflecting that it is entitled to receive 

payment for the medical services that L.B. received for the third surgery and that R.S. received for 

the January 2019 surgery. For request for production #’s 62 and 63, Plaintiff must produce 

agreements with (1) Plantation General in effect on the date of L.B.’s third surgery; and 

(2) Broward Health in effect on the date of R.S.’s January 2019 surgery.

D. Miscellaneous requests.

Request for production of documents #’s 8-11 and 62-636 and interrogatory #’s 9-10 fall 

under Category D. Defendant seeks miscellaneous information in this Category. For request for 

production # 8, Plaintiff must produce documents evidencing payments received from Defendant 

for the medical services that L.B. received for the third surgery and that R.S. received for the 

January 2019 surgery. For request for production # 9, Plaintiff must produce documents and 

records relating to monetary payments received from anyone for the medical services that L.B. 

received for the third surgery and that R.S. received for the January 2019 surgery. For request for 

production # 10, Plaintiff must produce documents reflecting efforts to collect any patient portion 

of the reimbursement amount due for the medical services that L.B. received for the third surgery 

6 Defendant also listed request for production #’s 62 and 63 under Category C. Thus, the Court has already made its 

ruling as to the responses Plaintiff must provide for request for production #’s 62 and 63.

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and that R.S. received for the January 2019 surgery. For request for production # 11, Plaintiff 

must produce documents and communications reflecting efforts to collect any patient 

responsibility portion, private pays, and payments from commercial payors for the medical 

services that L.B. received for the third surgery and that R.S. received for the January 2019 surgery.

For interrogatory #’s 9 and 10, Plaintiff must respond by identifying the specific training 

and experience (1) Dr. Dreszer has with respect to the medical services that L.B. received for the 

third surgery; and (2) Dr. Fletcher has with respect to the medical services that R.S. received for 

the January 2019 surgery. Plaintiff must respond with the information available to it, which may 

be beyond the information contained in the curricula vitae Plaintiff has already produced. 

E. Plaintiff’s native format and confidentiality objections.

As a final matter related to the Motion to Compel, the Court addresses two categories of 

objections that Plaintiff has made to numerous requests for production and interrogatories. First, 

Defendant has requested that Plaintiff produce certain records and information in native format, 

and Plaintiff has objected that production in native format is unduly burdensome. During the 

hearing, the Court questioned the parties concerning how, given the limited briefing, the Court 

might evaluate the burden of production in native format. The parties’ responses reflect that they 

have not adequately conferred with their clients and with one another concerning this issue. As 

examples, Plaintiff’s counsel stated that she was still trying to confirm with her client what the 

native format for certain records and information might be and how they might be produced. 

Defendant’s counsel stated that the parties had not discussed search terms and would work together 

on this issue. Consequently, the Court will not rule on Plaintiff’s objections concerning production 

in native format at this time. The Court expects the parties to work together in good faith to resolve 

these objections. Should the parties be unable to resolve the objections, they may bring this issue 

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before the Court again by following the procedures in the Order Setting Discovery Procedures. 

See DE 27.

Second, Plaintiff has responded to various requests for production and interrogatories by 

objecting that the information sought is confidential, privileged, proprietary, and/or otherwise 

protected. During the hearing, the Court questioned the parties concerning whether these 

objections are valid in light of the stipulated Protective Order and Confidentiality Order in place 

in this litigation. See DE 50-1; DE 50-2. The parties’ responses reflect that they have not 

adequately conferred concerning these objections. As examples, the parties have not conferred on 

whether the Protective and Confidentiality Orders either are adequate or can and should be 

modified to alleviate Plaintiff’s concerns. The parties have not conferred on redactions that may 

alleviate Plaintiff’s concerns. Consequently, the Court will not rule on Plaintiff’s confidentialityrelated objects at this time. The Court expects the parties to work together in good faith to resolve 

these objections. Should the parties be unable to resolve the objections, they may bring this issue 

before the Court again by following the procedures in the Order Setting Discovery Procedures. 

Should the parties re-raise the native-format objections and/or the confidentiality-related 

objections to the Court, and should the Court determine that an objection by Plaintiff is 

meritorious, the Court may reevaluate the productions and responses required of Plaintiff under 

this Order.

IV. PLAINTIFF’S MOTION TO MODIFY

As explained above, Defendant served Plantation General and Broward Health with 

subpoenas to testify at deposition and to bring certain documents to the deposition, and Plaintiff’s 

Motion to Modify seeks to remove certain topic designations and requests for production of 

documents from each subpoena. Specifically, Plaintiff seeks to remove topic designation #’s 15-17 

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and 19-20 from both subpoenas, request for production #’s 6, 14, 16-19, and 23-27 from the 

Plantation General subpoena, and request for production #’s 6, 14, 17-20, and 24-28 from the 

Broward Health subpoena. Before issuing its rulings as to these topic designations and requests 

for production, however, the Court addresses the preliminary issue of Plaintiff’s standing to 

challenge the Plantation General and Broward Health subpoenas.

A. Plaintiff’s standing to challenge the subpoenas.

“Generally, an individual does not have standing to challenge a subpoena served on 

another, unless that individual has a personal right or privilege with respect to the subject matter 

of the subpoena.” Barrington v. Mortg. It, Inc., No. 07-61304-CIV, 2007 WL 4370647, at *1 (S.D. 

Fla. Dec. 10, 2007). “[C]ourts have repeatedly found that an individual possesses a personal right 

with respect to information contained in employment records and, thus, has standing the challenge 

such a subpoena.” Id. The Court construes several topic designations and requests for production 

as seeking employment record information for Plaintiff and its employees. Thus, Plaintiff has 

standing the challenge the following topic designation #’s: 15 (complaints, negative reviews, and 

non-privileged performance evaluations), 16 (agreements giving privileges to practice medicine 

or perform or participate in surgical procedures), and 17 (agreements giving on-call privileges). 

Plaintiff also has standing to challenge the following request for production #’s: Plantation General 

subpoena 14/Broward Health subpoena 14 (agreements giving privileges to practice medicine or 

perform or participate in surgical procedures), Plantation General subpoena 16/Broward Health 

subpoena 17 (agreements giving on-call privileges), Plantation General subpoena 17 and 

18/Broward Health subpoena 18 and 19 (complaints, negative reviews, and performance 

evaluations), and Plantation General subpoena 23/Broward Health subpoena 24 (documents 

reflecting on-call schedules).

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Further, a party has a personal right or privilege with respect to its financial records and 

therefore has standing the challenge a subpoena for those records. Gabriel v. G2 Secure Staff, 

LLC, 225 F. Supp. 3d 1370, 1372 (S.D. Fla. 2016). The Court construes various topic designations 

and requests for production as seeking financial information for Plaintiff. Thus, Plaintiff has 

standing the challenge the following topic designation #’s: 19 (compensation paid and 

compensation structure for on-call services) and 20 (compensation rate for on-call services). 

Plaintiff also has standing to challenge the following request for production #’s: Plantation General 

subpoena 24/Broward Health subpoena 25 (documents reflecting compensation paid for on-call 

services) and Plantation General subpoena 25/Broward Health subpoena 26 (documents reflecting 

policies or procedures governing or limiting on-call compensation).

The remaining requests for production in dispute are Plantation General subpoena #’s 6, 

19, and 26-27 and Broward Health subpoena #’s 6, 20, and 27-28. The Court does not construe 

these requests as necessarily seeking either employment record information for Plaintiff and its 

employees or financial information for Plaintiff. However, Plaintiff has objected to these requests 

for production (as well as other requests for production and topic designations) at least in part 

based on relevance. “[C]ourts in the Eleventh Circuit have repeatedly held that a party may 

challenge a subpoena directed at a nonparty if the subpoena request irrelevant information.” Bush 

Truck Leasing, Inc. v. Office Depot, Inc., No. 11-80026-CIV, 2011 WL 13228102, at *3 (S.D. Fla. 

May 6, 2011). The party may make such a challenge by moving for a protective order under Fed. 

R. Civ. P. 26(c)(1). Id.; see Fed. R. Civ. P. 26(c)(1) (permitting a party or person from whom 

discovery is sought to move for a protective order in the court where the action is pending). 

Further, courts have construed motions to quash or modify subpoenas as motions for a protective 

order under Rule 26(c)(1). E.g., Psychic Readers Network, Inc. v. Take-Two Interactive Software, 

Case 0:22-cv-61853-WPD Document 62 Entered on FLSD Docket 08/11/2023 Page 17 of 21
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Inc., No. 17-61492-CIV, 2018 WL 7048217, at *2 (S.D. Fla. Oct. 1, 2018) (“Although Defendants 

lack standing to quash the subpoenas, they may move for a protective order under Rule 26 on 

grounds of relevance.”); Armor Screen Corp. v. Storm Catcher, Inc., No. 07-81091-Civ, 2008 WL 

5049277, at *3 (S.D. Fla. Nov. 25, 2008) (“Though Defendants lack standing to quash the 

subpoenas . . . the Court construes their Motion as also seeking a protective order under Rule 26 

on grounds that the subpoenas are overbroad and seek irrelevant information. As parties, 

Defendants have standing to seek such relief.”). To the extent that Plaintiff does not have standing 

to move to modify the subpoenas as to request for production #’s 6, 19, and 26-27 of the Plantation 

General subpoena and #’s 6, 20, and 27-28 of the Broward Health subpoena, the Court construes 

Plaintiff’s Motion to Modify as seeking a protective order in the alternative. Thus, the Court will 

not deny the Motion to Modify due to lack of standing.

B. Plaintiff’s challenge to topic designations and requests for production.

Having considered the proper scope of discovery, the Court will modify the subpoenas to 

narrow many of the topic designations and requests for production. Topic designation # 15 

addresses complaints, negative reviews, and non-privileged performance evaluations for any 

physician associated with Plaintiff. This information is relevant to a determination of the usual 

customary charges but only as to Drs. Dreszer and Fletcher, and therefore the Court narrows topic 

designation # 15 to apply only to those to two physicians. The Court narrows topic designation 

#’s 16 and 17 to apply to agreements (1) between Plaintiff and Plantation General in effect on the 

date of L.B.’s third surgery; and (2) between Plaintiff and Broward Health in effect on the date of 

R.S.’s January 2019 surgery. The Court narrows topic designation #’s 19 and 20 to apply to

compensation information (1) for the period of January 1, 2020 through December 31, 2021, from 

Plantation General; and (2) for the period of January 1, 2018 through December 31, 2019, from 

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Broward Health. To the extent that the compensation information sought through topic 

designation #’s 19 and 20 is specific to particular medical services, the Court further narrows those 

topic designations (1) in the Plantation General subpoena to apply to the medical services that L.B. 

received for the third surgery; and (2) in the Broward Health subpoena to apply to the medical 

services that R.S. received for the January 2019 surgery.

The Court narrows request for production #’s Plantation General subpoena 6/Broward 

Health subpoena 6 to apply to documents and communications (1) between Plaintiff and Plantation 

General related to the medical services that L.B. received for the third surgery; and (2) between 

Plaintiff and Broward Health related to the medical services that R.S. received for the January 

2019 surgery. The Court narrows request for production #’s Plantation General subpoena 14 and 

16/Broward Health subpoena 14 and 17 to apply to agreements (1) between Plaintiff and Plantation 

General in effect on the date of L.B.’s third surgery; and (2) between Plaintiff and Broward Health 

in effect on the date of R.S.’s January 2019 surgery. The Court narrows request for production #’s 

Plantation General subpoena 17 and 18/Broward Health subpoena 18 and 19 to apply only to 

Drs. Dreszer and Fletcher. The Court narrows request for production #’s Plantation General 

subpoena 19/Broward Health subpoena 20 to apply to communications (1) between Plaintiff and 

Plantation General related to the medical services that L.B. received for the third surgery; and

(2) between Plaintiff and Broward Health related to the medical services that R.S. received for the 

January 2019 surgery. 

The Court narrows request for production #’s Plantation General subpoena 23/Broward 

Health subpoena 24 to apply to documents (1) from Plantation General only for the date of L.B.’s 

third surgery; and (2) from Broward Health only for the date of R.S.’s January 2019 surgery. To 

the extent that the compensation information sought through request for production #’s Plantation 

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General subpoena 24 and 25/Broward Health subpoena 25 and 26 is specific to particular medical 

services, the Court narrows those requests for production (1) in the Plantation General subpoena 

to apply to the medical services that L.B. received for the third surgery; and (2) in the Broward 

Health subpoena to apply to the medical services that R.S. received for the January 2019 surgery. 

The Court narrows request for production #’s Plantation General subpoena 26/Broward Health 

subpoena 27 to apply to agreements and contracts (1) in effect on the date of L.B.’s third surgery

for plastic surgeons on-call at Plantation General on the date of that surgery; and (2) in effect on 

the date of R.S.’s January 2019 surgery for plastic surgeons on-call at Broward Health on the date 

of that surgery. The Court narrows request for production #’s Plantation General subpoena 

27/Broward Health subpoena 28 to apply to documents reflecting the number of plastic surgeons 

who were on-call at Plantation General on the date of L.B.’s third surgery and on-call at Broward 

Health on the date of R.S.’s January 2019 surgery.

Finally, Plaintiff also objects to various topic designations and requests for production on 

the basis that the information sought is confidential and/or proprietary. For the same reasons 

discussed above as such objections apply to Defendant’s requests for production and 

interrogatories, the Court will not rule on Plaintiff’s confidentiality-related objects at this time. 

The Court expects the parties to work together in good faith to resolve these objections. Should 

the parties be unable to resolve the objections, they may bring this issue before the Court again by 

following the procedures in the Order Setting Discovery Procedures. Should the parties re-raise 

the confidentiality-related objections to the Court, and should the Court determine that an objection 

by Plaintiff is meritorious, the Court may reevaluate any ruling as to the subpoenas.7

7 The subpoenas request that certain records and information be produced in native format, however Plaintiff does not 

had standing to object to the subpoenas on the ground that production in native format is unduly burdensome. 

See Armor Screen Corp., 2008 WL 5049277, at *2 (“[A] party lacks standing to challenge subpoenas served on another 

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For the foregoing reasons, Defendant’s Motion to Compel [DE 56] is GRANTED IN 

PART AND DENIED IN PART and Plaintiff’s Motion to Modify [DE 61] is GRANTED IN 

PART AND DENIED IN PART.

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 11th day of 

August, 2023.

 ___________________________________

 PANAYOTTA AUGUSTIN-BIRCH

 UNITED STATES MAGISTRATE JUDGE

on the grounds of oppression and undue burden placed upon the third parties where the non-parties have not objected 

on those grounds.” (quotation marks omitted)).

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