UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, ex rel.
FLOYD LANDIS,
Civil Action No. 1:10-cv-00976-CRC
Plaintiffs,
ECF

v.
TAILWIND SPORTS CORP., et al.,
Defendants.

DEFENDANT LANCE ARMSTRONGS MOTION TO QUASH

THE UNITED STATES DOCUMENT SUBPOENA
TO INDIANA UNIVERSITY SCHOOL OF MEDICINE

965358

Defendant Lance Armstrong hereby moves to quash the governments subpoena to the
Indiana University School of Medicine (Indiana University). The subpoena requests the
production of Armstrongs private medical records related to his 1996 cancer surgery. Those
documents are irrelevant to the subject matter of this litigation and the request is nothing more
than an attempt to harass Armstrong, cause unnecessary delay, and needlessly increase the cost
of this litigation. 1 Armstrong respectfully requests that the Court quash the subpoena.
I.

BACKGROUND

In 1996, Armstrong was diagnosed with an aggressive form of testicular cancer. The
cancer had spread to his brain, lungs and abdomen. Armstrong was treated at Indiana University
Hospital, where Dr. Lawrence H. Einhorn had pioneered the use of chemotherapy drug cisplatin
to treat testicular cancer. In 1997, following his treatment at Indiana University Hospital,
Armstrong was declared cancer-free. In 2005, in recognition of Dr. Einhorns treatment of
Armstrong, the Lance Armstrong Foundation made a donation to Indiana University. The
donation was publicly reported by the Lance Armstrong Foundation and Indiana University, as
well as by various media outlets. 2
On July 30, 2015, with no notice to Armstrong, the government issued a subpoena to
Indiana University. 3 The subpoena demanded that Indiana University produce, by August 14,
2015, three broad categories of documents: (1) the anesthesia and surgical preoperative notes
from October 23, 1996, relating to his cancer surgery; (2) documents that reflect or suggest that

The request also plainly calls for records protected by Health Insurance Portability and
Accountability Act (HIPAA). Armstrong does not waive his rights under HIPAA.
2
See, e.g., Lance Armstrong Foundation endows chair in oncology at IU, IU News Room, Oct.
27, 2005, http://newsinfo.iu.edu/news/page/normal/2569.html;
Beating Cancer With Lance Armstrong, IU Health Physicians,
http://iuhealth.org/physicians/about/experience/beating-cancer-with-lance-armstrong/;
rebachenowethfox59 and Dan Spehler, Lance Armstrongs Indianapolis doctor reflects on
treating cyclist, Fox 59, Feb. 1, 2013, http://fox59.com/2013/02/01/lance-armstrongsindianapolis-doctor-reflects-on-treating-cyclist/.
3
The government has not yet indicated whether Indiana University has been served.
1
965358

Armstrong used, prior to October 19, 1996, Erythropoietin; Human Growth Hormone; Steroids;
Testosterone; Cortisone; Corticosteroids; or Human chorionic gonadotropin; and (3) records
relating to any donations by or on behalf of Armstrong, the Lance Armstrong Foundation, or
Livestrong to the Indiana University Medical Center. When Armstrong received the
governments notice of subpoena, he promptly requested that the government withdraw it. The
government refused.
II.

ARGUMENT

A subpoena may be quashed when it requires disclosure of privileged or other protected

matter or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A); see also Freeman v.
Seligson, 405 F.2d 1326, 1334-35 (D.C. Cir. 1968) ([I]f the documents under subpoena are
relevant to the subject matter of the proceeding for which their production is sought, the
subpoena should be enforced on a showing of good cause unless the documents are privileged or
the subpoena is unreasonable, oppressive, annoying, or embarrassing.) (emphasis added).
Moreover, discovery may not be interposed for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation. Fed. R. Civ. P.
26(g)(1)(B)(ii). 4 Accordingly, Rule 26 vests the trial judge with broad discretion to tailor
discovery narrowly. Crawford-El v. Britton, 523 U.S. 574, 598 (1998). [I]t is appropriate for
the court, in exercising its discretion . . . to undertake [] substantive balancing of interests . . . .
Laxalt v. McClatchy, 809 F.2d 885, 890 (D.C. Cir. 1987).
The government requests that Indiana University produce anesthesia and surgical
preoperative notes from a surgery performed on Armstrong nearly fifteen years ago, and
documents suggesting that Armstrong used performance enhancing drugs. This request is

A subpoena is also limited in scope by Federal Rule of Civil Procedure 26(b)(1). See In re
Motion to Compel Compliance with Subpoena Direct[ed] to Department of Veterans Affairs, 257
F.R.D. 12, 18 (D.D.C.2009) ([I] n assessing whether a burden is undue under Rule 45, the court
should look to the standards articulated in Rule 26(b)(2) of the Federal Rules of Civil
Procedure.) (internal citations omitted). Rule 26 allows for discovery of information
reasonably calculated to lead to the discovery of admissible evidence.
2
965358

baffling. Armstrong has admittedas often as the government has askedthat he used
performance enhancing substances. Armstrong Depo. Tr. at 80:10-95:23; 118:18-24; Answer to
Amended Complaint (ECF No. 199) 88-89, 110-111. Just two weeks ago, at Armstrongs
deposition, Armstrong admitted to using EPO during the time period, prior to 1996, that is the
subject of this subpoena. See Armstrong Depo. Tr. at 338:8-10. There is no reason that the
government needs Armstrongs private medical records to prove a fact that Armstrong has
admitted.
The government also requests that Indiana University produce records relating to any
donations by Armstrong, the Lance Armstrong Foundation, or Livestrong to the Indiana
University Medical Center. As set forth above, the Lance Armstrong Foundations donation to
Indiana University was widely reported and has never been disputed. Had the government asked
Armstrong about the donation during his deposition, Armstrong would have provided any
information requested. The government, however, has never once referenced or asked about this
donation, because it is unrelated to the subject matter of this action and not reasonably
calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).
To the extent the government seeks via this subpoena to delve deeper into the so-called
1996 hospital room incident where some persons present recall admissions by Armstrong to
attending medical professionals regarding PED use, an incident that Armstrong, recovering from
recent brain surgery, does not recall, the subpoena remains an irrelevant sideshow. For some
time prior to 2012 the hospital room incident appeared significant, since it was the only proof of
actual PED use by Armstrong. But on the present record, and in light of Armstrongs numerous
and repeated admissions, the contents of his 1996 medical records add nothing probative to the
evidentiary mix.
The governments subpoena to Indiana University is unreasonable, oppressive,
annoying, or embarrassing. Freeman, 405 F.2d at 1335. Therefore, Armstrong respectfully
requests that the Court quash the subpoena in its entirety.

3
965358

Respectfully submitted,
KEKER & VAN NEST LLP

Dated: August 4, 2015

By: /s/ Elliot R. Peters

JOHN W. KEKER (pro hac vice)
ELLIOT R. PETERS (pro hac vice)
R. JAMES SLAUGHTER (pro hac vice)
SHARIF E. JACOB (pro hac vice)
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
ROBERT D. LUSKIN (D.C. Bar # 293621)
PAUL HASTINGS LLP
875 15TH St., NW
Washington, DC 20037
Telephone: (202) 551-1966
Facsimile: (202) 551-0466
Attorneys for Defendant
LANCE ARMSTRONG

4
965358