This post comes from the Cozen O’Connor side of the blog.
If you say the words “sales rep custodial files” to an in-house litigation counsel at a pharmaceutical company, she will almost always reflexively bite down on a piece of wood and wait for the pain, which will soon arrive via a series of ghastly visions. She will envision hard-copy files strewn about passenger seats, kitchen tables, home offices and work cubicles across the country. She will see laptops sitting on tables with thumb drives scattered all around them and random documents loitering perniciously on their C: drives. She will imagine paralegals everywhere doing things, lots of things, and she will see searches, documents being scanned or coded, attorneys conducting reviews and attorneys conducting more reviews. She will imagine a sign over her office door: “Cost Center.” Bundles of cash will be floating out her window toward the street, as her computer screen tallies it up like the national debt clock. She’ll lower her head into her palm, the piece of wood will drop from her mouth, and she’ll reach for an outsized bottle of Advil sitting right there on her desk.
Sales rep custodial files are always a discovery issue. The files aren’t contained in readily searchable company databases. They are scattered, and they require a labor intensive and costly collection and review process. Worse, they produce little new information, as they often contain documents that are duplicative of material already provided in the company’s general production. Frankly, if they are produced for cases that are not actively involved in case-specific discovery, we suspect that plaintiffs’ lawyers rarely if ever look at them. Yet, because of the costly and painful process of producing them, plaintiffs want them even if they don’t really need them.
In the Fluoroquinolone MDL in the District of Minnesota, the court recently ruled that the defendants are not required to produce sales rep custodial files with their Defendant Fact Sheets (DFS) as part of case-specific discovery, or at least not for cases that are not part of a bellwether process. Plaintiffs wanted everything. For each case, they wanted the custodial files of each sales rep that contacted the plaintiff’s prescriber, as well as from that sales rep’s manager and the manager’s manager. That is a massive undertaking. Anyone experienced in these mass torts knows that plaintiffs often identify multiple prescribers. And each of those prescribers will have seen multiple sales reps over the years. With hundreds of MDL cases, that creates a large number of sales reps and managers from whom custodial files would be produced. One defendant estimated that producing these files could cost as much as $90,000,000.
In convincing the court do deny this request from plaintiffs, defendants put the requested production of all those custodial files its proper perspective. Defendants were already producing a massive amount of material as part of general document and interrogatory discovery. The DFS responses were also going to include a vast amount of case-specific material from searchable databases: sales rep call notes, dear doctor letters, prescribing data, prescribers’ medical information requests, information on samples provided to prescribers, speaker compensation, adverse event reports, and more.
Against this background, defendants effectively argued that requiring a massive, costly production of sales rep custodial files for every case failed the proportionality requirement of FRCP 26(b)(1). The court agreed:
Due to the significant burden the proposed custodial-file searches would impose on Defendants, and the less-than-certain benefits of such searches, the Court finds Defendants need not engage in them at this time. Defendants acknowledge that custodial-file searches likely will be warranted for a narrower group of cases at a later stage, such as during bellwether selection; however, Plaintiffs have not provided sufficient reason to impose such a burden for all cases at the DFS stage.
(Order at 1.) In other words, some custodial files will be produced, but not all of them and not now. If a case becomes part of a bellwether discovery process, plaintiffs will then likely get the custodial files. That’s certainly how we’ve seen it done.
As a result, the tote board on in-house counsel’s computer screen won’t tick-up nearly as high as it would have if the court had granted plaintiffs’ request. That’s a big deal, as litigations should not turn on the basis of unnecessary, oppressive discovery. This was a significant victory for the defense (and the type you read about only here).