United States v. 3M Co. (In re 3M Combat Arms Earplug Prods. Liab. Litig.)

IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS LIABILITY LITIGATION,

This Document Relates to: United States of America v. 3M Company Case No. 3:20-mc-55

Case No. 3:19-md-2885

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

October 26, 2020

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

Pending before the Court is the Government's motion to quash Defendants' non-party deposition subpoena to Mr. Andy Toyama (an employee of the Department of Defense) pursuant to Federal Rule of Civil Procedure 45 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) ("Touhy"). MC ECF No. 1.¹ Magistrate Judge Rom A. Trader transferred the motion to quash from the District of Hawaii to this Court on October 5, 2020, MC ECF No. 15, and Defendants have filed a response in opposition to the motion, MC ECF No. 19. For the reasons discussed below, the Government's motion is DENIED.

I. BACKGROUND

This multidistrict litigation is a collection of products liability actions concerned with whether Defendants were negligent in their design, testing, and labeling of the nonlinear dual-ended Combat Arms Earplug Version 2 (the "CAEv2"). More specifically:

Plaintiffs assert state law claims for negligence and strict product liability based on design defect and failure-to-warn theories, as well as warranty, misrepresentation, fraud, gross negligence, negligence per se, and consumer-protection claims. Plaintiffs' design defect claims target two features of the CAEv2, alleging that: (1) its stem was too short for certain users—primarily those with medium to large ear canals—to insert the device deeply enough into their ears to obtain the airtight seal necessary to provide hearing protection; and (2) when the earplug was inserted according to standard fitting instructions, the positioning of the opposing flanges relative to the outer ear caused the basal edge of the third flange of the non-inserted side of the earplug to press against some users' ear canal openings and fold up, causing imperceptible loosening of the seal, which, they claim, results in little to no hearing protection for the user. Plaintiffs' failure-to-warn claims are based on allegations that Defendants failed to provide warnings regarding the alleged dangers inherent in the use of the CAEv2.

MDL ECF No. 1280 at 16-17. Plaintiffs are servicemembers, veterans, and civilians seeking damages in this action for hearing loss, tinnitus, and related injuries caused by their use of the CAEv2. MDL ECF No. 704. Defendants dispute these allegations. MDL ECF No. 959.

The Government is not a party to this litigation, MDL ECF No. 704 at ¶¶ 16-20, but its relationship to this matter is undeniable. The docket reflects litigation between the parties over the discoverability of government records, see, e.g., MDL ECF Nos. 977, 1154, 1258, and, until recently, Defendants attempted to invoke the government contractor defense as a shield from state tort liability for those plaintiffs claiming injury from using the CAEv2 during their military service, see MDL ECF No. 1280 (denying Defendants' motion for summary judgment based on the government contractor defense and granting Plaintiffs' motion for summary judgment on the same as a matter of law).

Consequently, the parties have identified the United States' various agencies and employees as critical sources of third-party discovery. Relevant here, on August 27, 2020, Defendants sent the United States Army Major Nicole Kim, on behalf of the Department of Defense, a request to take the deposition of Mr. Toyama, an audiology technician who Defendants say "was involved in hearing conservation appointments that Plaintiff Lewis C. Keefer, Jr. attended at or near Schofield Barracks from 2012 through 2014." MC ECF No. 19-1 at 2. Defendants sought to depose Mr. Toyama regarding: "(i) Plaintiff Keefer's exposure to noise; (ii) Plaintiff's Keefer's alleged hearing loss/tinnitus injuries; (iii) Plaintiff Keefer's use of hearing protection devices, including the CAEv2; and (iv) the policies and practices regarding hearing protection devices in Plaintiff Keefer's units." Id. at 3. Defendants explained this testimony was relevant "to address Plaintiff Keefer's allegations that his hearing was injured due to use of the CAEv2 and to the extent/severity of his alleged injuries." Id. at 4. Additionally, Defendants requested that Mr. Toyama produce all documents, communications, and correspondence concerning Plaintiff Keefer, his exposure to noise, his hearing conservation appointments and testing, and his selection, fitting, and use of hearing protection devices. Id. at 3.

That same day, in accordance with Pretrial Order No. 50, MDL ECF No. 1340, Defendants issued a subpoena to Mr. Toyama. That subpoena was never served because, on September 2, 2020, Defendants issued two amended subpoenas (one for Mr. Toyama's remote deposition on September 16, 2020, and the other for the production of documents). MC ECF Nos. 19-2, 19-3. The Department responded to Defendants' subpoena duces tecum on September 11, 2020, without objection, stating that Mr. Toyama did not have responsive documents to produce. MC ECF No. 19-4.

On September 15, 2020, however, the Department objected to the deposition subpoena in a comprehensive letter to Defendants' counsel. MC ECF No. 19-5. The Department raised several procedural objections to Defendants' subpoena, including that it did not allow a reasonable time to comply, sought publicly available information, and failed to identify the topics for deposition. Id. at 2-4. The Department also challenged the subpoenas as unduly burdensome in this case and asserted its potential cumulative impact would be "disruptive to the agency's functioning." Id. at 3-5. Finally, the Department argued that Defendants' request to take Mr. Toyama's deposition failed to satisfy the factors enumerated in 32 C.F.R. § 97.6(b) for the Department to consider when authorizing third-party discovery from its employees, which the Court addresses below. Id. at 5-6. That same day, the Government, on behalf of the Department of Defense, filed a motion to quash Defendants' deposition subpoena, MC ECF No. 1, and supporting memorandum, MC ECF No. 1-1.

II. THE HOUSEKEEPING STATUTE, TOUHY, AND THEADMINISTRATIVE PROCEDURE ACT

Before reaching the Government's motion, Defendants' response, and the merits of the arguments raised therein, the Court must explain the groundwork for deciding whether to quash Defendants' subpoena. Typically, the Federal Rules of Civil Procedure—specifically Rule 45—govern the production of third-party discovery and objections thereto. Fed. R. Civ. P. 45; Citizens Union of City of New York v. Attorney Gen. of N.Y., 269 F. Supp. 3d 124, 138 (S.D.N.Y. 2017). Not so here because the subject third-party is a current government employee. Instead, the Court must look to numerous federal statutes and regulations, beginning with the Housekeeping Statute, 5 U.S.C. § 301.

The Housekeeping Statute authorizes "the head of an Executive department or military department" to "prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property." 5 U.S.C. § 301. The antecedents of § 301, however, "go back to the beginning of the Republic, when statutes were enacted to give heads of early Government departments authority to govern internal department affairs." Chrysler Corp. v. Brown, 441 U.S. 281, 309 (1979). Congress first enacted housekeeping statutes in 1789 "to help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file government documents." H.R. Rep. No. 85-1461 (1958), reprinted in 1958 U.S.C.C.A.N. 3352. "Those laws were consolidated into one statute in 1874[,] and the current version of the statute was enacted in 1958." Chrysler Corp., 441 U.S. at 309.

In 1951, the Supreme Court looked to the Housekeeping Statute to determine whether the Attorney General properly issued a regulation prohibiting a subordinate official of the Department of Justice from obeying a subpoena duces tecum ordering the production of records in his possession. Touhy, 340 U.S. at 463. The Court held the regulation was valid because the Housekeeping Statute authorized the Attorney General "to prescribe regulations not inconsistent with the law for the custody, use, and preservation of the records, papers, and property appertaining to the Department of Justice[.]" Id. at 468.

The Supreme Court's holding prompted federal agencies to adopt so-called "Touhy regulations" concerning testimony by agency employees and the production of government documents. Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir. 1991); see also Westchester Gen. Hosp., Inc. v. Dep't of Health and Human Servs., 443 F. App'x 407, 409 n.1 (11th Cir. 2011). The Department of Defense's Touhy regulations are codified at 32 C.F.R. § 97.1, et seq., which provide in pertinent part:

In response to a litigation request or demand for official DoD information or the testimony of DoD personnel as witnesses, the General Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates General of the Military Departments; and the Chief Legal Advisors to the JCS and the Unified and Specified Commands, with regard to their respective Components, are authorized—after consulting and coordinating with the appropriate Department of Justice litigation attorneys, as required—to determine whether official information originated by the Component may be released in litigation; whether DoD personnel assigned to or affiliated with the Component may be interviewed, contacted, or used as witnesses concerning official DoD information or as expert witnesses; and what, if any, conditions will be imposed upon such release, interview, contact, or testimony. Delegation of this authority, to

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