The opinion of the court was delivered by: Judge Virginia M. Kendall
This case involves the rates at which Defendants -- agencies and officers responsible for administering the State of Florida's Medicaid program -- compensate Plaintiff health care providers for medical services to Medicaid recipients. The underlying merits of the case are being litigated in the United States District Court for the Southern District of Florida. The sole issue before this Court is whether third-party subpoenas issued to Defendants' experts Navigant Consulting, Inc. ("Navigant") and its two employees, Catherine Sreckovich and Jeff Moor (collectively, "third-party experts"), should be quashed.
Defendants and the third-party experts now move this Court pursuant to Federal Rules of Civil Procedure 52(b) and 59(e) to reconsider or amend its prior ruling denying the third-party experts' motion to quash or for a protective order. This Court ruled previously that the law of the case doctrine advised against relitigating an earlier Florida district court decision denying a motion to quash the subpoenas. Upon reconsideration, however, because the Florida district court entered its judgment without jurisdiction over the third-party experts, this Court holds that it was a manifest error of law to rely on the law of the case doctrine to deny the motion to quash.
Considering anew the question of whether to quash the subpoenas, this Court holds that under Rule 26(b)(4), Plaintiffs may not depose Defendants' consulting expert, even though he was identified previously as a testifying expert. Defendants' testifying expert shall be deposed consistent with any ongoing discovery plan and stay entered in the underlying Florida litigation. In connection with her deposition, she and Navigant are ordered to produce all relevant documents including patient identifiable medical information subject to a HIPAA qualified protective order. Accordingly, the motion for reconsideration or amendment is granted and the third-party experts' motion to quash the subpoenas and for protective order is granted in part and denied in part.
Factual and Procedural Background
On April 12, 2005, Plaintiffs served third-party subpoenas on Navigant and its two employees, Catherine Sreckovich and Jeff Moor. Defendants had hired Navigant as experts on Medicaid expenditures and claims processing. Defendants concede that they intend Ms. Sreckovich to testify at trial, but state that Mr. Moor was retained solely as a consulting expert to assist them in their analysis and preparation for litigation At the time the subpoenas were issued, Defendants had listed Mr. Moor as a testifying expert. After receipt of the subpoena, Defendants corrected their alleged mistake and removed Mr. Moor from their witness list.
On April 22, 2005, in a motion filed before Magistrate Judge Bandstra in the Southern District of Florida, Defendants moved to quash the subpoenas issued to their third-party experts. The third-party experts contend that they were not a party to that motion. On May 5, 2005, Magistrate Judge Bandstra denied the motion to quash, finding that "these witness [sic] may have substantial knowledge regarding the facts and/or defenses alleged in the lawsuit." Soon after the magistrate judge's order compelling their depositions, on May 10, 2005, Navigant Consulting, Inc., Jeff Moor and Catherine Sreckovich filed their own motion to quash and for a protective order here in the District Court for the Northern District of Illinois.
Meanwhile, in the Southern District of Florida, under Federal Rule of Civil Procedure 72(a), Defendants timely filed their objections to the magistrate judge's ruling.*fn1 On June 28, 2005, District Judge Martinez found that his Court had no jurisdiction over the out-of-district expert deponents and that Rule 45 required Plaintiffs to move in the District Court for the Northern District of Illinois to compel the depositions. At the time of this decision, briefing on the third-party experts' motion to quash was ongoing in this Court. Defendants also filed memoranda supporting the motion to quash. The third-party experts and Defendants both noted the later Florida district court decision in their reply briefs to this Court filed July 8, 2005. On July 20, 2005, this Court issued a minute order denying the motion to quash. In that order, the Court "decline[d] the invitation to review the decision of Judge Bandstra in the Southern District of Florida," holding that principles embodied in the law of case doctrine counseled against allowing the third-party experts to relitigate the magistrate judge's decision denying the motion to quash. The July 20 order did not mention the subsequent Florida district court decision setting aside the magistrate judge's ruling on jurisdictional grounds.
Within ten days of the entry of this Court's order denying their motion to quash, on August 1, 2005, both the third party experts and Defendants timely filed motions to reconsider or amend the judgment under Rules 52(b) and 59(e). Their motions ask this Court to reconsider its earlier decision on the grounds that the law of the case doctrine cannot apply when the original court had no jurisdiction to enter its judgment and where the third-party experts were not parties to that action. They request further that upon reaching the merits of their motion to quash, this Court find that Mr. Moor, as a consulting expert, cannot be compelled to testify in a deposition and that a protective order be entered to prevent the disclosure of patient medical information.
I. Motions to Reconsider or, Alternatively, to Amend
Defendants and the third-party experts have filed their motions to reconsider or amend this Court's prior order under Rules 52(b) and 59(e). Before proceeding, this Court first must satisfy itself that these are the proper rules under which to reconsider its prior ruling. Pivot Point International, Inc. v. Charlene Products, Inc., 816 F. Supp. 1286, 1287 (N.D. Ill. 1993).
While, there is no motion for reconsideration per se in the Federal Rules of Civil Procedure, if a judgment has been entered in a case, a party can seek relief under Rules 52(b) and 59(e). Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). The relevant question thus becomes whether an order denying a third party's motion to quash, filed in a court ancillary to the underlying litigation, constitutes a judgment. Assuming a judgment exists to reconsider, the Court must then decide, under the motion to reconsider standard, whether it was a manifest error of law or fact to rely on the law of the case doctrine to deny the third-party experts' motion to quash.
A. Applicability of Rules 52(b) and 59(e)
Federal Rule of Civil Procedure 59(e) provides that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment," while Rule 52(b) states that "[o]n a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings -- or make additional findings -- and may amend the judgment accordingly." Both of these rules, by their express language, apply only to judgments.
A judgment is defined for purposes of the Federal Rules of Civil Procedure in Rule 54(a): "'Judgment' as used in these rules includes a decree and any order from which an appeal lies." Conversely, 28 U.S.C. § 1291 declares that an appeal lies from "all final decisions of the district courts of the ...