BRITTANY S. GOBBLE, et al., Plaintiffs, v. BRISTOL GYNECOLOGY AND OBSTETRICS, P.C., et al., Defendants 2:22-CV-51 United States District Court, E.D. Tennessee, GREENEVILLE DIVISION Filed August 08, 2024 Wyrick, Cynthia R., United States Magistrate Judge ORDER *1 Before the Court is Defendants' Motion [Doc. 102] to quash the subpoena issued to Johnson City Police Department or for a protective order that prohibits the service of the subpoena. Plaintiffs filed a Response [Doc. 103] in opposition to Defendants' motion. This motion is before the undersigned pursuant to 28 U.S.C. § 636. I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY This action alleges that Defendants negligently mismanaged Plaintiff Brittany Gobble's pregnancy care during January 2021. [Doc. 1]. Plaintiffs' complaint was filed on May 12, 2022. Id. Pursuant to the amended scheduling order [Doc. 41] entered in this matter, the discovery deadline was May 14, 2024. The subpoena in question (“the subpoena”) was served on non-party Johnson City Police Department on June 26, 2024. Plaintiffs' counsel did not meet and confer with Defendants' counsel before serving the subpoena. The subpoena requests a certified copy of a crash report for an accident that occurred on or about April 28, 2024, that is believed to involve Defendant Dr. David P. Russell (“Dr. Russell”). The subpoena requests any and all attachments and amendments to the crash report, including toxicology and BAC reports, but does not request any medical or hospital records. After service of the subpoena, Defendants' counsel met and conferred with Plaintiffs' counsel and requested that the subpoena be withdrawn. Plaintiffs' counsel declined to withdraw the subpoena, and Defendants filed the instant motion. In their motion, Defendants argue that the subpoena should be quashed as a matter of law and/or the Court should issue a protective order forbidding the requested discovery. [Doc. 102, p. 1]. Defendants further assert that they should be awarded attorney fees related to the filing of this motion. In response, Plaintiffs request that the Court either enforce the subpoena or grant an extension of the discovery deadline for the limited purpose of permitting Plaintiffs to reissue and serve the subpoena. [Doc. 103, p. 3]. Plaintiffs acknowledge that the subpoena is a discovery device and subject to the discovery deadline set forth in the scheduling order, although Plaintiffs' counsel did not learn that the Sixth Circuit treats Rule 45 subpoenas as discovery devices until after the subpoena had been served. Id. at 1-2. Still, Plaintiffs assert that the subpoena should be permitted because good cause exists to extend the discovery deadline for the purpose of service of this specific subpoena. Id. at 2-4. II. MOTION TO QUASH Defendants assert that the subpoena should be quashed because it was not timely filed and argue that they have standing to move to quash the third-party subpoena because it requires the disclosure of privileged or protected information. Specifically, Defendants argue that the crash report cannot be used as evidence and any toxicology report attached to the crash report contains Dr. Russell's protected health information (“PHI”) that is not discoverable in this matter. Moreover, Defendants argue that Plaintiffs attempted to obtain Dr. Russell's PHI without requesting a court order permitting them to do so or meeting and conferring with Defendants' counsel prior to service of the subpoena which justifies an award of attorney fees. *2 A party generally does not have standing to quash a subpoena directed to a third party unless the party can show the subpoena would violate their privilege or personal right. Brotman v. State Gov't Leadership Found., No. 3:16-CV-712-HBG, 2019 WL 13217068, at *2 (E.D. Tenn. Apr. 10, 2019) (citing Hackmann v. Auto Owners Ins. Co., No. CIV.A. 2:05-CV-876, 2009 WL 330314, at *1-2 (S.D. Ohio Feb. 6, 2009)); see also Pianko v. Gen. R.V. Ctr., Inc., No. 20-13371, 2022 WL 2674189, at *1 (E.D. Mich. July 11, 2022). “The party seeking to quash a third-party subpoena must meet a heavy burden of proof.” Pianko, 2022 WL 2674189, at 1. Here, Defendants essentially present a two-pronged argument that the subpoena would violate Dr. Russell's privilege. First, Defendants argue that the subpoena requests privileged information pursuant to Tenn. Code Ann. § 55-10-114 which states that crash reports shall not be used as evidence in any trial arising out of the accident. Defendants assert that if the crash report could not be used as evidence in an action arising from the crash, then it should not be permitted to be used as evidence here. Defendants' argument is flawed for two reasons. First, information “need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Instead, requested discovery need only be “reasonably calculated to lead to the discovery of admissible evidence.” PPG Indus., Inc. v. Payne, No. 3:10-cv-73, 2012 WL 13019512, at *2 (E.D. Tenn. May 3, 2012) (citing Fed. R. Civ. P. 26(b)(1)) (emphasis omitted). At the same time, the discovery sought must be relevant. See Fed. R. Civ. P. 26(b)(1). While Defendants argue that the requested information is not relevant, the Court cannot entirely agree at this juncture. Defendants assert that the underlying cause of action is not related in any way to alleged substance abuse and occurred roughly three years after the events in question; thus, they contend the crash report is not relevant. Were this a more run-of-the-mill car accident, the Court would fully agree. However, the circumstances of the crash in question, in which a driver, apparently Dr. Russell, was travelling the wrong way on the interstate in the late night/early morning hours, indicate that more was at play than mere failure to follow traffic guidelines. Plaintiffs argue that any impairment on the part of Dr. Russell during the crash, including cognitive impairment such as dementia, could lead to relevant and admissible evidence regarding impairment on the part of Dr. Russell during the time that the medical treatment in question was rendered. Even though there is a significant gap in time between the two events, the Court agrees that information related to the crash still may ultimately lead to evidence regarding Dr. Russell's decision-making ability at the time when he was treating Ms. Gobble. Thus, it is reasonable to conclude that information sought via the subpoena is “reasonably calculated to lead to discoverable evidence.” Additionally, even though Tenn. Code Ann. 55-10-114 treats crash reports as confidential for the purposes of admissibility as evidence, crash reports are still public record with some limited exceptions. Tennessee law requires all law enforcement officers who investigate a vehicle accident to prepare and forward an accident report to the Tennessee Highway Patrol within seven (7) days of the accident. Tenn. Code Ann. § 55-10-108(b)(1). Such reports are “open to public inspection as a public record...with the exception of personally identifying information.” Tenn. Code. Ann. § 55-10-108(f)(1). “Personally identifying information” includes address, phone number, drivers license number, and insurance information. Tenn. Code Ann. § 10-7-504. Names of those involved in the accident and toxicology or BAC information are not included within the definition of “personally identifying information.” See id. Accordingly, the crash report is not considered privileged information pursuant to Tennessee law. *3 Defendants' second argument is that the subpoena requests Dr. Russell's protected health information. In support, Defendants rely upon the definition of protected health information in 45 CFR § 160.103 which defines protected health information as “individually identifiable health information.” However, this definition of protected health information pertains to the Social Security Act and not civil discovery, so it is not applicable here. See 45 CFR § 160.101. On its face, the subpoena requests the crash report and any attachments or amendments thereto, including toxicology and BAC reports, but it does not request anything that is not part of the official crash report. [Doc. 102-1, p. 5-6]. While it is not unreasonable to believe that the contents of the crash report may eventually lead Plaintiffs to request medical records or other health information, that is not the situation that is currently before the Court. Plaintiffs assert that they have not requested any medical or hospital records and further contend there is no reason to believe hospital records would be included in a crash report. [Doc. 103, p. 5]. At the same time, Plaintiffs note that if Dr. Russell's BAC is part of the crash report, it would presumably be public record. Id. As stated above, crash reports are public record with the exception of “personally identifying information” contained therein, the definition of which does not include BAC or toxicology reports. See Tenn. Code. Ann. § 55-10-108(f)(1). Accordingly, the Court must conclude that the subpoena does not request Dr. Russell's protected health information. Given the above, Defendants have failed to meet the significant burden of showing that the third-party subpoena issued to Johnson City Police Department would violate Dr. Russell's privilege or personal right. See Pianko, 2022 WL 2674189, at *1; Brotman, 2019 WL 13217068, at *2. Accordingly, Defendants do not have standing to move to quash the third-party subpoena. See Brotman, 2019 WL 13217068, at *2. III. EXTENSION OF THE DISCOVERY DEADLINE The Court must next examine Plaintiffs' request to extend the discovery deadline to permit service of the subpoena.[1] Pursuant to Federal Rule of Civil Procedure 16, “[a] schedule may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). The court enjoys “broad discretion under the rules of civil procedure to manage the discovery process...” Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014) (citing Wolotsky v. Huhn, 960 F.2d 1331, 1338 (6th Cir. 1992)). In determining good cause, the court should consider the following: (1) when the moving party learned of the issue that is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to prior discovery requests. Id. (quoting Bentowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2011)). “Still, ‘the overarching inquiry in these overlapping factors is whether the moving party was diligent in pursuing discovery.’ ” Id. (quoting Bentowski, 637 F.3d at 696). *4 The Court first observes that if the only reason Plaintiffs issued a subpoena past the discovery deadline was a lack of familiarity with a subpoena being treated by courts in the Sixth Circuit as a discovery device, the Court would not find that fact to demonstrate good cause. At the same time, the Court notes that there is significantly more at issue here. Specifically, Plaintiffs' counsel did not learn of the potential need for the discovery in question until May 23, 2024, one week after the expiration of the discovery deadline. Additionally, the detailed affidavit of Plaintiffs' counsel attached to Plaintiffs' response demonstrates the diligence with which Plaintiffs pursued the discovery in question. [Doc. 103-1]. Although the subpoena was not served until June 25, 2024, this delay was not due to lack of diligence by Plaintiffs; rather, it was in fact because of the diligent investigation undertaken by Plaintiffs' counsel to determine the necessity of the subpoena before serving it. As such, the Court finds there is good cause to extend the discovery deadline for the limited purpose of the service of the subpoena in question. IV. MOTION FOR PROTECTIVE ORDER Having determined that it is appropriate to extend the discovery deadline to permit service of the subpoena, the Court now turns to Defendants' argument that Dr. Russell is entitled to a protective order prohibiting Plaintiffs from obtaining the crash report requested in the subpoena. In support, Defendants assert that Plaintiffs' attempt to obtain the crash report records is “intended to harass and intimidate Dr. Russell...[and that] [t]here can be no showing that these records are needed.” [Doc. 102, p. 5]. Defendants argue that the records are irrelevant to this action because there are no allegations in the case that are connected to substance abuse or an automotive accident. Defendants also point out that three years elapsed between Plaintiffs' January 2021 medical care and the April 28, 2024 car accident as further evidence that the crash report cannot be relevant to the instant action. Any party may move for a protective order in the court where the action is pending. Fed. R. Civ. P. 26(c)(1). Such a motion must certify that the movant has made a good faith effort to resolve the dispute without court action. Id. Upon a showing of good cause, the court may issue an order to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. One of the ways in which this can be accomplished is by issuance of an order that specifies the terms for the disclosure of the discovery. Fed. R. Civ. P. 26(c)(1)(B). As a preliminary matter, the Court notes that while it understands Defendants' argument as to the purpose behind Plaintiffs' subpoena, the Court cannot find any record evidence to support the assertion that Plaintiffs' intent was to harass, intimidate, annoy, or embarrass Dr. Russell. At the same time, the Court sees how disclosure of information contained within the sought-after crash report may be embarrassing for Dr. Russell or have an otherwise negative effect. Still, the Court must also consider the potential relevance of the information contained within the crash report. In balancing these interests, the Court does not find it appropriate to prohibit consideration of the requested crash report but does find it appropriate to utilize certain safeguards to protect Dr. Russell's privacy until the relevance of the crash report at issue can be further evaluated. As such, Defendants' request for a protective order is GRANTED in part such that the subpoena requested by Plaintiffs shall be reissued to direct production of the crash report in question to the Court, rather than to Plaintiffs' counsel. Upon receipt of the crash report and the requested attachments thereto, the Court will conduct an in-camera review of the report to determine whether the report contains sufficient relevant information to justify disclosure to Plaintiffs. V. REQUEST FOR ATTORNEY FEES Defendants argue that they should be awarded the fees and expenses incurring in making this motion under Rules 26 and 37 of the Federal Rules of Civil Procedure. Specifically, Defendants argue that “Plaintiffs' attempt to obtain the PHI [of Dr. Russell] without a meet and confer justifies an award of fees.” [Doc. 102, p. 4]. As explained above, the subpoena in question only requests the crash report and attachments thereto from the Johnson City Police Department and does not request any hospital or medical records or other information that is not part of the report, and that report by law is public record. Thus, the Court must conclude that Defendants are not entitled to attorney fees on these grounds. *5 Defendants further assert that, if the motion for protective order is granted, they are entitled to attorney fees pursuant to Federal Rule of Civil Procedure 37(a)(5). As stated above, while the Court does find it appropriate to grant Defendant's motion for protective order in part, that is not the end of the inquiry. The Rule 37(a)(5) requirement that attorney fees be awarded if a protective order is granted is subject to some exceptions. Specifically, the Rule states that the court must not award attorney fees if the offending party's action “was substantially justified; or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 35(a)(5). Here, although proper procedure was not followed, Plaintiffs' request for the crash report was justified because the Court finds that the report could lead to admissible evidence. Additionally, Plaintiffs' response makes clear that Plaintiffs' failure to follow the proper procedure was not intentional. Further, Plaintiffs' counsel was not aware of the potential relevance the crash report had to this matter until May 23, 2024, at the earliest, and the additional delay in issuance of the subpoena was because counsel undertook additional investigation to determine whether the report should be sought before determining that it was appropriate to issue a subpoena. As such, the Court finds that Plaintiffs' actions were substantially justified, and an award of attorney fees would not be just under these circumstances. Accordingly, Defendant's request for attorney fees is DENIED. VI. CONCLUSION For the reasons stated above, Defendants' Motion [Doc. 102] is GRANTED in part and DENIED in part. More specifically, the Motion is DENIED as to Defendants' request to quash the subpoena, GRANTED in part as to Defendants' request for a protective order, and DENIED as to Defendants' request for attorney fees. In accordance with this ruling, Plaintiffs' counsel is directed to prepare and serve an updated subpoena to the Johnson City Police Department that directs production of the requested documents to the Court at 220 W. Depot Street, Suite 306, Greeneville, Tennessee 37743 so that the Court may conduct an in-camera review of the documents to determine whether further disclosure is appropriate. That subpoena shall be prepared and served on or before August 14, 2024. SO ORDERED: Footnotes [1] Although Defendants do not have standing to quash the subpoena, the Court still finds it prudent and in the interests of efficiency to address extension of the discovery deadline given Plaintiffs' request for such extension and Defendants additional request for a protective order.