United States District Court, D. Massachusetts
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY and THE COMMERCE INSURANCE COMPANY, Plaintiffs,
SAVIN HILL FAMILY CHIROPRACTIC, INC. et al., Defendants.
ORDER ON MOTION TO COMPEL (DOC. NO. 994)
SOROKIN UNITED STATES DISTRICT JUDGE.
January 7, 2019, Defendant Law Offices of Jeffrey S.
Glassman, LLC (“GLO”) moved to compel the
production of records held by non-party DXC Technology
(“DXC”). DXC sells “software that
[Plaintiffs] employ to evaluate claims, manage legal
services, analyze medical records and bills, and aid fraud
detection.” Doc. No. 1073 at 2. The motion seeks to
compel production of various records in DXC's possession
concerning Plaintiffs, Defendants, and First Boston Billing.
Doc. No. 995-2 at 6-7. Both DXC and Plaintiff Metropolitan
Property and Casualty Insurance Company
(“Metropolitan”) opposed. Docs. No. 1073, 1061.
The Court held a telephone conference on the motion on
February 11, 2019.
DXC and Metropolitan objected to the jurisdiction of this
Court. See Doc. No. 1061 at 7, Doc. No. 1073 at 9.
Ordinarily, a motion to compel production must be made in
“the district where compliance is required, ”
Fed.R.Civ.P. 45(d)(2)(B)(i), which, for the purpose of this
motion, is the Southern District of New York, Doc. No. 1073
at 9. However, “[w]hen the court where compliance is
required did not issue the subpoena, it may transfer a motion
[to compel] to the issuing court if the person subject to the
subpoena consents or if the court finds exceptional
circumstances.” Fed.R.Civ.P. 45(f). Such
“transfer may be warranted in order to avoid disrupting
the issuing court's management of the underlying
litigation, as when that court has already ruled on issues
presented by the motion or the same issues are likely to
arise in discovery in many districts.” Id.
advisory committee's note to 2013 amendment. At the
telephone conference, the parties agreed to submit a joint
status report indicating whether, given the complexity of
this litigation and the likelihood that this motion, if made
in New York, would be transferred back, they waived objection
to this Court's resolution of the motion. After
conferring among themselves, the parties, including DXC, have
now stated that all consent to having the motion decided by
this Court. Doc. No. 1140.
Metropolitan then argues that GLO's
subpoena to DXC is an attempt to circumvent the Court's
prior Order, Doc. No. 891, on Defendants' motion to
compel Plaintiffs to produce certain documents regarding
Defendants. Doc. No. 1073 at 6-7. The Court's earlier
Order held that different documents sought by
Defendants-specifically, legal bills not sought by this
motion- were covered in part by attorney-client privilege and
that, as a result, it was “appropriate to redact
entries reflecting the work performed by the
attorneys.” Doc. No. 891 at 6. That Order in no way
resolves the issues presented by this motion.
next argues that “likely all of the information [the
motion] seeks is already in the possession of the
[Plaintiffs] and more readily available from them.”
Doc. No. 1073 at 8. Plaintiffs repeated this point at the
telephone conference, explaining that the documents produced
by DXC were routinely transmitted to Plaintiffs, leaving no
documents that could be sought only from DXC. But Plaintiffs
offer no evidence that they maintained the full set of
records that DXC produced or that they have already produced
them to GLO in response to the discovery requests at issue in
the Court's earlier Order to which Plaintiffs cite. There
is no rule against obtaining documents from a third party,
especially where, as here, the plaintiffs did not produce the
Metropolitan does not squarely confront the merits of the
discovery sought, the Court finds, after consideration of the
specific relevance of these records and the likely burden of
producing them, that the documents sought are relevant and
discoverable. Given the significance of the sought records to
this litigation and the absence of evidence that the records
have already been produced, the Plaintiffs' unsupported
burden objection is overruled. In making this ruling, the Court
has specifically considered and weighed that DXC is a
non-party to the litigation, though the Court further notes
that a core function of DXC's business is handling
records for customers such as Metropolitan.
accordance with the foregoing, the motion to compel, Doc. No.
994, is ALLOWED. Accordingly, by March 1, 2019, DXC shall
produce the records sought.
 The objections made in separate
filings by Metropolitan and DXC not only overlap but appear,
understandably, to be coordinated. For ease of reference, the
Court describes the objections as Metropolitan's to
encompass the arguments and issues presented by both
Metropolitan and DXC.
 As the party resisting discovery,
Metropolitan bears the burden of showing that the subpoena
imposes an undue burden, and it “cannot rely on a mere
assertion that compliance would be burdensome and onerous
without showing the manner and extent of the burden and the
injurious consequences of insisting upon compliance.”