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Theodore Topolewski, D.M.H v. Quorum Health Resources

January 8, 2013


The opinion of the court was delivered by: E. Clifton Knowles United States Magistrate Judge



This matter is before the Court upon Plaintiff's Motion for an Order compelling the production of documents sought by Plaintiff's Subpoena Duces Tecum directed to non-party Mark Williams. Docket No. 98. Plaintiff has filed a supporting Memorandum. Docket No. 100. Mr. Williams has filed a Response in opposition to the Motion (Docket No. 121), as has Defendant Coffee Medical Group, LLC d/b/a United Regional Medical Center ("URMC") (Docket No. 119).

Plaintiff is the former Chief Executive Officer of URMC. He avers that he was wrongfully terminated due to his discovery of, and refusal to remain silent about "substantial financial and accounting irregularities and fraudulent misuse of hospital funds for the benefit of select investors" at URMC, which "fraudulently overstated [URMC's] accounts receivable," and that URMC entered into various transactions that were not at "fair market value to the detriment of the hospital and the benefit of the executives and investors."

Docket No. 100, p. 2.

URMC denies the allegations made by Plaintiff regarding these transactions, denies that it engaged in any fraudulent behavior, and denies that it was involved in any illegal activity or attempts to perpetrate fraud on the United States government. Quorum Health Resources, LLC, one of the other Defendants, avers that Plaintiff's termination was due to the fact that "Plaintiff unilaterally terminated a severance contract with URMC's former CEO without consulting URMC's Board or management, resulting in a lawsuit and judgment against URMC."

According to Plaintiff, Mr. Williams was serving as URMC's legal counsel and had served as URMC's legal counsel during all relevant times alleged in the Complaint. Plaintiff states:

As such, Mr. Williams presumablypossesses records, books, ledgers, and other documents which memorialize or otherwise directly relate to the transactions referred to in the Complaint. Plaintiff's requests to Mr. Williams in the Subpoena also target documents related to the structure and nature of the relationships of the "executives and investors" of URMC and the other entities who were involved in the transactions discovered by Plaintiff which led to his termination as referenced in the Complaint. Finally, the requests seek information regarding invoices and notes receivable for Mr. Williams' services, which would enable Plaintiff to substantiate, compare, and confirm discrepancies uncovered by Plaintiff in URMC's accounts receivable and the accounts payable records.

Docket No. 100, p. 3.

Plaintiff, therefore, served the Subpoena at issue upon Mr. Williams, which has been filed as Docket No. 100-1. Mr. Williams objected to producing the requested documents, pursuant to Fed. R. Civ. P. 45(c)(2)(B). That Rule provides in relevant part as follows:

Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises -- or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

In his objection, Mr. Williams stated in part as follows:

[T]he subpoena is overly broad and the documents requested have no relevance to the actual lawsuit at issue. Additionally, many of the documents sought are protected by attorney-client privilege and/or work product doctrine. Most, if not all, of any non-privileged documents should be available either publicly or from the actual parties in the above referenced case. As you know, the inviolability of attorney-client privilege is one of the foundations of our system of justice. To attempt to separate the privileged documents from the non-privileged documents in the legal files of our firm would require extensive attorney time and effort which would be unduly burdensome and result in significant expense. Since any non-privileged documents should be available from a party or publicly, it would be my position that the request made in the subpoena, in addition to being overly broad, are unduly burdensome.

Likewise, in addition to requiring extensive time for additional review for privilege, the production of electronic documents in the form demanded would impose ...

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