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Phillips v. Encompass Health Corp.

United States District Court, N.D. Alabama, Southern Division

October 3, 2018

NEAL PHILLIPS, et al., Plaintiffs,
v.
ENCOMPASS HEALTH CORPORATION, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This case is before the court on Defendants' Amended Motion to Quash or Modify Plaintiffs' Subpoena to the VanAllen Group, Inc. and Motion for a Protective Order. (Doc. # 19). The Motion is fully briefed (see Docs. # 19-20, 22), and it is ripe for decision. After careful review, and for the reasons explained below, the court concludes that Defendants' Motions are due to be granted in part and denied in part.

         I. Factual and Procedural Background

          Plaintiffs Neal Phillips and Keith Clevenger (“Plaintiffs”) were employed by Defendants Encompass Health Corporation (“Encompass Health”) and Encompass Health Aviation, LLC (“Encompass Aviation”) (collectively, “Defendants”) as aviation maintenance employees from March 2015 to March 2018. (Doc. # 1). They now bring this action pursuant to the Fair Labor Standards Act, 29 U.S.C. §201 et seq., to remedy Defendants' alleged violations of the wage provisions of the FLSA. (Doc. # 1 at ¶ 14). Plaintiffs assert that Defendants have deprived them of their lawful minimum and/or overtime wages. (Id.).

         As part of discovery, on August 10, 2018, Plaintiffs served a subpoena on VanAllen Group, Inc. (“VanAllen”) (Doc. # 19-1), an entity Defendants have characterized as “a third party consulting firm that provided Encompass Aviation confidential and proprietary review and analysis of its Aviation services.” (Doc. # 19). Plaintiffs sent an email to Defendants' counsel on August 6, 2018, notifying them of intent to serve the subpoena. (Doc. 20 at ¶ 1). The parties also agreed that all documents produced by VanAllen would be shared with Defendants. (Id.).

         The subpoena requests that VanAllen produce the following three categories of documents:

(1) Any and all notes, records, reports, correspondence, documents, notices, or other writings which in any manner reflect, relate, refer or pertain to the payment of salaries, wages, compensation or overtime by Encompass Health Corporation or Encompass Health Aviation, LLC to any "Aviation Tech" or any "Aviation Tech Supervisor", including but not limited to any and all documents and records which reflect investigations conducted or recommendations provided by Don Henderson or Don White to Encompass Health Corporation or Encompass Health Aviation, LLC from January 2014 to the present.
(2) All reports or presentations you have prepared or presented that refer or relate to the payment of overtime to aviation maintenance employees, whether employed by Encompass Health Corporation or Encompass Health Aviation, LLC or otherwise.
(3) Any notes, reports, correspondence, notices, documents or other writings that refer to William Poynter, Elaine Karabatsos, Cheryl Levy, Jay F. Grinney, Neal Phillips or Keith Clevenger.

(Doc. # 19-1).

         VanAllen has filed nothing with the court in opposition to the subpoena. (Doc. 20 at ¶ 4). However, on August 22, 2018, VanAllen's counsel emailed Plaintiffs a letter detailing two objections targeted at Requests Two and Three of the subpoena. (Doc. # 19-2). The letter does not express VanAllen's agreement to produce any documents responsive to these requests, but it states that “VanAllen will produce the documents responsive to the request in this Paragraph (1).” (Id.).

         II. Discussion

         The parties' disagreement revolves around Request One of the subpoena. Specifically, Defendants object pursuant to Federal Rule of Civil Procedure 45(d)(3)(B)(i), which allows a court to quash or modify a subpoena if it requires “disclosing a trade secret or other confidential research.” Here, Defendants argue that the Request should be modified because it “requires disclosure of confidential research by VanAllen gathered in connection with preparing proprietary reports.” (Doc. # 19 at 3). They seek, at the least, modification of the Request so that VanAllen may produce only “final report[s] provided by VanAllen to Encompass regarding the wages of any Encompass Aviation Technician or Aviation Technician Supervisor from March 2015 to March 2018.” (Id. at 5).

         Of course, the “movant bears the initial burden of establishing that the information sought is…confidential information which qualifies for protection and that its release might be harmful to the movant.” Centurian Industries, Inc. v. Warren Steurer and Assocs., 665 F.2d 323, 325 (10th Cir. 1981). Defendants somewhat arbitrarily suggest that limiting the Request to VanAllen's “final reports” would minimize the danger of producing protected information. (Doc. #19 at 3-4). They offer no theory as to why the requested information is confidential, why the release of such information would cause them harm, or why limiting the request to “final reports” would prevent them from suffering the alleged harm.[1] Consequently, Defendants have not carried ...


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