United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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.
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.).
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.).
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
(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
(Doc. # 19-1).
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.).
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).
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. Consequently, Defendants
have not carried ...