The Court, addressing key issues related to ESI discovery, denied without prejudice Defendants’ motion to quash a third-party subpoena issued to CMS, but ordered Relator to withdraw the subpoena and instead pursue discovery directly from Defendants under Rule 34. The Court emphasized that parties cannot circumvent standard discovery procedures by seeking documents from non-parties when the same materials are within a party’s custody or control. The Court further required the parties to meet and confer on discovery requests and, if necessary, bring unresolved disputes to the Court through an informal discovery conference before filing motions.

In this False Claims Act action, Relator issued a subpoena to CMS for Medicare/Medicaid records without first serving discovery requests on Defendants. Defendants moved to quash, arguing that the subpoena was overly broad and sought materials that could be obtained from them directly. Relator countered that CMS maintained the “best evidence” and denied any intent to bypass the discovery process.

The Court held that Relator improperly circumvented the traditional ESI discovery process. Under Rule 26(b)(2)(C)(i), discovery must be limited where materials are obtainable from a more convenient and less burdensome source—in this case, from Defendants themselves via Rule 34 requests. The Court cited prior decisions in the Sixth Circuit rejecting attempts to use Rule 45 subpoenas as a substitute for party discovery.

As a result, the Court ordered Relator to withdraw the subpoena to CMS, request the documents directly from Defendants, and confer on the scope of production. Only if the parties cannot resolve disputes after exhausting extrajudicial measures may they elevate issues through an informal conference with the Court.

The decision underscores the judiciary’s expectation that parties adhere to standard discovery channels, particularly in ESI disputes, and avoid burdening non-parties when responsive materials are within the possession or control of a litigant.

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