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-65

Case No. 3:19-md-2885

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

December 8, 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 Dr. James Davis (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 Robert P. Myers transferred the motion to quash from the Southern District of Mississippi to this Court on November 10, 2020, MC ECF No. 8, and Defendants have filed a response in opposition to the motion, MC ECF No. 11. For the reasons discussed below, the Government's motion is DENIED.

In the last two months, the Court has addressed individually the merits of challenges by federal agencies to six of Defendants' discovery subpoenas to current government employees.² Four subpoenas (Schulman, Parker, Donaldson, and Toyama) were (as here) case-specific to the claims of Bellwether Plaintiffs in the MDL. And two subpoenas (Toyama and Robinette) were (as here) directed to employees of the Department of Defense. By now, the parties are intimately familiar with the background, law, and arguments discussed previously that are also applicable to this dispute. Therefore, for the sake of brevity, they will not be repeated here unless it is necessary to understanding the Court's reasoning.

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"). 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.

The Government is not a party to this litigation, id. at ¶¶ 16-20, but the parties have identified the United States' various agencies and employees as critical sources of discovery. Relevant here, on September 24, 2020, in accordance with Pretrial Order No. 50, MDL ECF No. 1340, Defendants issued a subpoena to Dr. Davis for a deposition and production of documents fifteen days later in Gulfport, Mississippi. MC ECF No. 1-1 at 1-3.

The subpoena, which was served on Dr. Davis on September 28, 2020, included a letter to United States Army Major Nicole Kim, on behalf of the Department of Defense, explaining Defendants' position on Dr. Davis' relevance to this multidistrict litigation. Id. at 5-9. Namely, Dr. Davis was a Hearing Conservation Program Manager at Bellwether Plaintiff Dustin McCombs' duty station (Fort Benning) from 2007 to 2009. Id. at 5. Defendants sought to depose Dr. Davis regarding:

(i) [his] role and responsibilities as Hearing Conservation Program Manager at Fort Benning; (ii) the Hearing Conservation Program at Fort Benning; (iii) selection, distribution, fitting, and training for hearing protection devices, including the CAEv2, at Fort Benning; (iv) evaluation of potential noise exposures at Fort Benningand steps, if any, taken to mitigate those exposures; (v) instructions, in any form, provided at Fort Benning to service members, including Plaintiff McCombs, related to the CAEv2 or other hearing protection devices; (vi) practices, policies and procedures related to military audiological evaluations at Fort Benning; (vii) completion of documents and records regarding audiological evaluations; (vi) completion of documents and records regarding the selection, distribution, fitting, and training of patients for hearing protection devices and (vii) Plaintiff McCombs' noise exposures, use of hearing protection devices, and hearing evaluations and records at Fort Benning.

Id. at 6. Additionally, Defendants requested that Dr. Davis produce six categories of documents related to the distribution, training, fitting, and use of hearing protection devices, including the CAEv2, at Fort Benning from 2007 to 2009, Id. at 6-7.

On October 6, 2020, Defendants issued an amended subpoena for Dr. Davis' deposition to occur remotely. MC ECF No. 1-2. The next day, the Department of Defense responded to Defendants' amended subpoena in a comprehensive letter. MC ECF No. 1-3. The Department objected to the deposition subpoena as unduly burdensome, as cumulative and duplicative, and for failing to allow a reasonable time to comply. Id. Notably, the Department asserted that any testimony from Dr. Davis regarding his role as Hearing Conservation Program Manager and the practices of the program would be cumulative and duplicative of othergovernment witnesses (Dr. Eric Fallon, LTC John Merkley, LTC Leanne Battler, and COL Kathy Gates). Id. 3-4. The Department, however, did not object to Defendants' request for Dr. Davis to produce documents and stated that Dr. Davis did not have any responsive documents. Id. at 6.

The Government, on behalf of the Department of Defense, filed a motion to quash Defendants' deposition subpoena to Dr. Davis, MC ECF No. 1, and supporting memorandum, MC ECF No. 2, on October 8, 2020.

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

The Government's motion to quash is governed by the Housekeeping Statute (5 U.S.C. § 301), the Department of Defense Touhy regulations (32 C.F.R. § 97.1, et seq.), and the Administrative Procedure Act ("APA") (5 U.S.C. § 706). Robinette, 2020 WL 6787216, at **3-5; 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); Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir. 1991).

In short, the Housekeeping Statute authorizes the Department of Defense to adopt regulations concerning testimony by agency employees and the production of government documents. Touhy, 340 U.S. at 463. When deciding whether to authorize or preclude agency employees to testify or produce documents, the Department considers myriad factors,including, in pertinent part, "[w]hether the request or demand is unduly burdensome or otherwise inappropriate under the applicable court rules[.]" 32 C.F.R. § 97.6(b)(1). If the agency's decision is challenged on a motion to quash or motion to compel, the Court must determine whether it is arbitrary and capricious under the APA, such that the agency failed to "examine[] the relevant data" or articulate "a rational connection between the facts found and the choice made," Dep't of Commerce v. New York, 139 S. Ct. 2551, 2569 (2019).

III. DISCUSSION

A. The Government's Motion and Defendants' Response

Turning to the dispute at hand, the Government argues that the Department's decision to preclude Dr. Davis' deposition is not arbitrary and capricious because the Department has already produced all of the records related to Dr. Davis' interaction with Plaintiff McCombs, Dr. Davis has no independent recollection of Plaintiff McCombs, and requiring Dr. Davis to participate in discovery would be unduly burdensome "especially ... during a time of telework and shutdowns caused by the ongoing pandemic." MC ECF No. 2 at 3-4. The Government argues—seemingly in the alternative—that Defendants' subpoena should be quashed under Federal Rules of Civil Procedure 26 and 45 because it is unduly burdensome,seeks unreasonably cumulative or duplicative discovery, and failed to allow a reasonable time to comply. Id. at 4-7. In support of the contention of undue burden, the Government claims that Dr. Davis did not issue any CAEv2 earplugs "during his tenure as the Hearing Program Manager" because " in 2008[] the clinic had already transitioned away from the CAEv2 to a single-flange earplug" and that he does not have any "personal knowledge regarding the potential noise exposures at Fort Benning and any steps taken to mitigate those noise exposures." Id. at 5.

Defendants argue that the Department's decision to preclude Dr. Davis' deposition is arbitrary and capricious. MC ECF No. 11. They contend that Dr. Davis' deposition is necessary notwithstanding that he does not have an independent recollection of Plaintiff McCombs because he may be able to testify to several other topics—the distribution, fitting, training, and use of the CAEv2 by servicemembers at Fort Benning during the relevant time period, his role as the Hearing Conservation Program Manager at Fort Benning, and the evaluation of hearing protection devices during audiograms of servicemembers. Id. at 3-5. Defendants also assert that this deposition is not unduly burdensome merely because it would require Dr. Davis to take time away from his work. Id. at 5-6. Defendants argue further that they provided Dr. Davis a reasonable time to comply withthe subpoena notwithstanding that the subpoena was amended three days prior to the proposed deposition date. Id. at 6-7.

Upon review of the administrative record,³ the Court concludes that the Government's motion to quash is due to be denied. The Department failed to articulate a rational connection between the facts before it and its decision to preclude Dr. Davis' deposition under the applicable Touhy regulations. Alternatively, Defendants' subpoena is not unduly burdensome or otherwise improper under the Federal Rules of Civil Procedure.

B. APA Review

In deciding whether to authorize Dr. Davis' deposition in this case, the Department considered whether compliance would be unduly burdensome and appropriate under court rules, 32 C.F.R. § 97.6(b)(1), MC ECF No. 1-3 at 2. The Government, however, fails to substantiate the reasoning set forth in the Department's October 7, 2020, comprehensive letter and, in turn, the Department's decision to preclude Defendants from deposing Dr. Davis.

The Department's claims of undue burden ring hollow. For starters, a federal agency ...