Speaking of Rule 45 and non-party subpoenas, here’s a ruling involving that very topic…

In Pfaff, et al. v. Merck & Co., et al., No. 20-mc-80148-AGT (N.D. Cal. Sept. 28, 2020), California Magistrate Judge Alex G. Tse denied the plaintiff’s motion to quash a subpoena on the company at which the plaintiff’s husband (the subject of a products liability and wrongful death action related to his suicide allegedly being caused by his use of Merck’s prescription drug Propecia), finding “The documents that Merck seeks from Trace3 are relevant to the parties’ claims and defenses.”

Case Background

In a products liability and wrongful death action pending in another district court, the plaintiff, on behalf of herself, her children, and the family trust, alleged that her husband committed suicide in 2013 due to his use of the defendant’s prescription drug Propecia. As part of discovery, the defendant notified the plaintiff of its intention to serve a document subpoena on Trace3, Inc., the California-based company at which the husband was president until shortly before his death. The plaintiffs responded by moving to quash the Trace3 subpoena in the court for the district where compliance with the subpoena was required.

Judge’s Ruling

Judge Tse began by stating: “Having considered the motion to quash, the Court denies it for the following reasons”:

• In ruling that “The documents that Merck seeks from Trace3 are relevant to the parties’ claims and defenses”, Judge Tse stated: “Mr. Pfaff worked at Trace3 before, during, and after he used Propecia. Trace3’s records related to his employment (e.g., his performance reviews, work emails, and calendars) are likely to shed light on his state of mind during those periods, and on how his mental health may have changed while he was taking Propecia. Other Trace3 records related to Mr. Pfaff (e.g., his bonus packages, workers’ compensation records, and other emails) could also indicate whether he was under stress or experiencing health or financial troubles. These are just examples.”
• In disagreeing with the plaintiffs that providing the husband’s confidential employment records would infringe on his right of privacy secured by the California Constitution, Judge Tse said: “Initially, there’s reason to doubt that Mr. Pfaff’s right of privacy survived his death…But even if the right did survive, it isn’t absolute and must be balanced against the need for disclosure…The need for disclosure is compelling here, where the plaintiffs allege that Propecia caused Mr. Pfaff to commit suicide, and where Mr. Pfaff’s work-related records are likely to shed light on his mental state before, during, and after he took Propecia… Mr. Pfaff’s privacy rights can be adequately safeguarded by a protective order that prohibits Merck from using the discovery it obtains from Trace3 except in this litigation.”
• Regarding the plaintiffs’ claim that the subpoena should be quashed because the defendant had already received certain documents from Trace3, and it has now chosen “to serve this [subpoena] late in the discovery game”, Judge Tse stated: “No suggestion has been made that the deadline for discovery has passed, so the Court doesn’t find this argument for quashing or limiting the Trace3 subpoena persuasive.”
• Judge Tse also stated that the plaintiffs “lack standing” to assert that complying with the subpoena will be unduly burdensome or that it seeks documents that may contain Trace3’s confidential information, noting that the plaintiffs couldn’t make either argument on Trace3’s behalf.

So, what do you think?  Is a protective order sufficient to protect privacy concerns in a case like this?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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