EMORY GRANT, Plaintiff, v. CRST EXPEDITED, INC. and KARL O. BROOKS, Defendants CIVIL ACTION NO. 1:18-CV-433 United States District Court, E.D. Texas Filed May 18, 2020 Crone, Marcia A., United States District Judge MEMORANDUM AND ORDER *1 Pending before the court are Plaintiff Emory Grant's (“Grant”) Objections to, and Motion To Quash, Depositions and Related Subpoena Duces Tecum (#69) and Defendants CRST Expedited, Inc., and Karl O. Brooks's (collectively, “Defendants”) responsive Motion to Overrule Plaintiff's Objections To, and Motion to Quash, Depositions and Related Subpoena Duces Tecum (#72). The parties also submitted additional briefing (#s 74, 77, 80, 83). Having considered the motions, the submissions of the parties, the record, and the applicable law, the court is of the opinion that Grant's motion should be denied and Defendants' motion should be granted in part. I. Background The court's Amended Scheduling Order (#63), signed November 25, 2019, sets forth a May 1, 2020, deadline to complete discovery and a May 15, 2020, deadline to submit motions, aside from motions in limine. On May 1, 2020, Defendants noticed the oral and videotaped depositions of Dr. Erwin Lo (“Dr. Lo”), Grant's treating physician, and Celia Q. Lopez (“Lopez”), the custodian of records for SpineTech Neurosurgery (“SpineTech”), and subpoenaed them to appear on May 19, 2020. On May 5, 2020, Grant filed his motion, objecting to the depositions as untimely because they were set after the discovery deadline of May 1, 2020. Grant further contends that Lopez was previously deposed on written questions and that Defendants failed to seek leave for a second deposition pursuant to Federal Rule of Civil Procedure 30(a)(2)(A)(ii). In addition, Grant objects to certain items in the subpoena duces tecum served upon Dr. Lo as beyond the scope of permissible discovery, unduly burdensome, and harassing in nature. Defendants maintain that they requested Dr. Lo's deposition in April and proposed dates, to which Grant's counsel responded by providing alternative dates, including May 19, 2020, the date of the depositions at issue.[1] Defendants further indicate that they have received conflicting information regarding the billing arrangements between Grant's counsel, Dr. Lo's medical facility SpineTech, and SpineTech's contractual agreement with Grant's health insurer, Blue Cross Blue Shield (“BCBS”). Specifically, SpineTech testified in written form that it received no letter of protection from Grant's counsel and that it charged Grant the usual and customary rates for treatment. CRST contends that it learned in April that SpineTech received a letter of protection and that SpineTech's $400,000 bill is approximately eighteen times the amount Medicare would pay for the same services. Defendants contend that Grant has health insurance with BCBS, for which he provided proof of insurance to SpineTech at his initial patient visit. Furthermore, SpineTech has a provider agreement with BCBS which requires SpineTech to submit bills to BCBS for payment within 120 days of treatment and which limits charges for medical services. Defendants aver that according to Dr. Michael Graham, the usual and customary rate for the treatment is $23,970.00 (#72-7), and according to Medicare fee schedules, the price for the same services is $19,309.00, whereas SpineTech has issued bills to Grant after July 2019 for $397,000 (#72-9). *2 Defendants accuse SpineTech of concealing the true amount of Grant's medical bills and inflating Grant's medical damages claims. They further contend that Lopez's deposition is necessary “to (1) clarify why SpineTech's charged rates vary so widely from the usual and customary rate for services provided, (2) understand why SpineTech did not submit most of Grant's bills to BCBS for payment, and (3) learn what rates BCBS would have allowed for Grant's treatment.” Defendants maintain that Lopez, who answered the deposition by written questions as SpineTech's custodian of records in July 2019, has been subpoenaed for deposition in her personal capacity, not as a second deposition of SpineTech. On May 15, 2020, Defendants filed their Motion to Compel SpineTech's Responses to Cross Questions and Subpoena Duces Tecum (#79), wherein they state that they no longer seek to depose Lopez[2] but request that the court compel SpineTech to provide the information they seek. Defendants maintain that all discovery requests at issue are relevant to “paid and incurred” amounts for Grant's medical treatment, namely, approximately $400,000 of Grant's $450,000 medical bills in this case. See TEX. CIV. PRAC. & REM. CODE § 41.0105. II. Analysis Generally, a party may obtain discovery from a non-party by serving the non-party with a subpoena issued pursuant to Federal Rule of Civil Procedure 45. The court, however, may quash or modify a Rule 45 subpoena if it: “(1) fails to allow a reasonable time for compliance; (2) requires a person who is not a party to travel more than 100 miles from where the person resides; (3) requires disclosure of privileged or protected matter; or (4) subjects a person to undue burden.” Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004). The scope of discovery under a subpoena is the same as the scope of discovery under Rules 26(b) and 34. See FED. R. CIV. P 45(d)(1); Kendrick v. Heckler, 778 F.2d 253, 256 (5th Cir. 1985); Booth v. City of Dallas, 312 F.R.D. 427, 430 (N.D. Tex. 2015) (“When a subpoena is issued as a discovery device, relevance for purposes of the undue burden test is measured according to the standard of [Federal Rule of Civil Procedure] 26(b)(1).” (quoting Williams v. City of Dallas, 178 F.R.D. 103, 110 (N.D. Tex. 1998))). Therefore, Grant, as the moving party, “has the burden of proof to demonstrate ‘that compliance with the subpoena would be unreasonable and oppressive.’ ” Wiwa, 392 F.3d at 818 (quoting Williams, 178 F.R.D. at 109). Here, Grant objects to the depositions noticed for May 19, 2020, on the grounds that they are set after the discovery deadline established by the court's Amended Scheduling Order (#63). Rule 16(b) of the Federal Rules of Civil Procedure provides that once a scheduling order has been entered, it “may be modified only for good cause and with the judge's consent.” FED. R. CIV. P. 16(b). Although good cause varies with the circumstances of each case, courts have considered the following: In general, if the party seeking relief can show that the deadlines cannot reasonably be met despite the party's diligence, relief may be given. Similarly, relief may be granted if the court finds that the movant has not unduly delayed the action and that the opponent will not be prejudiced by the modification. When the modification is necessitated by acts of the opposing party or by the opponent's failure to act, relief also has been deemed appropriate. 6A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1522.2 (3d ed. 2019); see United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 328 (5th Cir. 2017); S&W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003). Four factors are relevant to a showing of good cause: (1) the explanation for the failure to timely move for leave to amend or comply with the scheduling order; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. Springboards To Educ., Inc. v. Houston Indep. Sch. Dist., 912 F.3d 805, 819 (5th Cir. 2019) (citing Squyres v. Heico Cos, L.L.C., 782 F.3d 224, 237 (5th Cir. 2015)); Bias, 816 F.3d at 328 (citing S&W Enters., LLC, 315 F.3d at 536). In light of the circumstances raised by Defendants and the containment measures related to COVID-19 that have been in effect in recent months, the court finds good cause to modify the Scheduling Order in this matter. Moreover, to the extent that Grant objects to a second deposition of Lopez due to a failure to comply with Rule 30(a)(2)(A)(ii), the court construes Defendants' briefing as a request for leave, and the court grants Defendants leave to depose Lopez as custodian of records for SpineTech, subject to Rule 26(b)(1) and (2). In addition, Grant's objections to items 7, 8, 10, 11, and 12 in the subpoena duces tecum served upon Dr. Lo are overruled, as the requests are narrowly tailored to the issues relevant to this case. Finally, the court's amendment of the Scheduling Order in this case renders Defendants' request for leave to depose Dr. Graham after the discovery deadline moot. III. Conclusion *3 Consistent with the foregoing, Grant's Objections to, and Motion To Quash, Depositions and Related Subpoena Duces Tecum (#69) is DENIED. Defendants' responsive Motion to Overrule Plaintiff's Objections To, and Motion to Quash, Depositions and Related Subpoena Duces Tecum (#72) is GRANTED IN PART and DENIED IN PART. The court's Second Amended Scheduling Order will be entered separately. SIGNED at Beaumont, Texas, this 18th day of May, 2020. Footnotes [1] On April 15 and 16, 2020, defense counsel's office emailed Grant's counsel's office regarding Dr. Lo's deposition, proposing April 20-23, 27, 29-30, or May 1 (#72-1). On April 16, 2020, Grant's counsel responded that counsel would be available on May 12 or 19. On April 17, 2020, defense counsel emailed to confirm May 19 as the deposition date, and Grant's counsel responded with 3pm and the address for Dr. Lo's office in Beaumont, Texas. Defendants contend that Grant's counsel waited for them to serve the subpoena before filing the motion to quash. [2] The court presumes that Defendants no longer wish to depose Lopez in her personal capacity because it appears that Defendants still seek information from SpineTech.