Photo of Michelle Yeary

Just a few months ago we blogged about cloned discovery pointing out that in a world of already asymmetrical discovery burdens on defendants, allowing plaintiffs to magnify that discrepancy by forcing defendants to reproduce discovery from prior cases is an abusive process.  We stand by that position and are happy to add to the list of cases denying cloned discovery requests.  But it also got us thinking about cloning.  Not real-life therapeutic cloning that is amazing science and medicine, but the cloning you see in movies.  The stuff of science fiction.    We were hard pressed to come up with an example where the cloning didn’t go horribly wrong.  There are comedies like Multiplicity (where Michael Keaton’s clones get “weirder” with each version) and The Santa Clause 2 (where Tim Allen’s Santa clones threaten to ruin Christmas).  There are dramas aimed to explore the moral and ethical implications of cloning such as The 6th Day, or Godsend where Greg Kinnear and Rebecca Romijn are offered a chance to clone their deceased son.  Some movies address the “why” of clones such as The Island where humans are cloned for their organs or Star Wars:  Episode II – Attack of the Clones where clones are needed to quickly build an army (this one doesn’t exactly support our premise that cloning doesn’t work, but had to include it — clones is in the title).  And last but certainly not least, Jurassic Park clearly demonstrated the downside to cloning dinosaurs.

Following on that theme of no good can come of cloning, we bring you Matosich v. Wright Med. Group, 2020 U.S. Dist. 81001 (D. Mon. May 7, 2020) in which the judge agreed with us.  Plaintiff brought a suit alleging he suffered injuries from his hip implant when it broke.  Id. at *1.  Nearing the end of discovery, plaintiff filed a motion to compel asking the court to force defendant to produce, among other things, cloned or “piggyback” discovery.  The specific request at issue asked defendant to produce ten categories of documents from any prior case filed against the defendant related to the fracture of a device similar to that implanted in plaintiff.  Id. at *7-8.  The categories included complaints, answers, defense and plaintiff expert reports, and depositions/videos of plaintiffs, plaintiffs’ experts, defendant’s experts, and company witnesses.  Id.  The fact that plaintiff was seeking all of this near the end of the discovery period just further emphasizes the problem with allowing cloned discovery.  Plaintiff apparently sat back and did very little discovery of his own opting instead to just gather all the work that was done in other cases.  To borrow from chaos theorist Ian Malcolm (Jeff Goldblum):  “the problem with the [cloning] that you’re using here — it didn’t require any discipline to attain it. You read what others had done and you took the next step. You didn’t earn the knowledge for yourselves, so you don’t take any responsibility for it.”  Unlike the “blood sucking lawyer” who was taking John Hammond’s side and eventually became t-rex dinner, we agree with Malcolm.  Defendants shouldn’t have to do plaintiffs’ work for them by just throwing open the doors to everything that came before.  Discovery should be tailored to the facts and needs of the case and that requires some intellectual rigor on the part of plaintiff’s counsel to get there.

In Matosich, defendant estimated that plaintiff’s request for cloned discovery implicated its files in approximately 300 other cases.  Id. at *10.  That’s 300 different cases involving 300 plaintiffs whose personal information would have to be redacted to preserve confidentiality and privacy if it had to be produced.  Redactions are time consuming and labor intensive.  And, are a waste of time where “[m]ost of the information sought is not reasonably likely to aid in resolution of this case on its merits.”  Id.  Defendant had already produced its “complaint files” documenting each fracture of which the company was notified.  Id. at *9.  So, the court was

unclear what benefit will arise from litigation documents developed in cases involving other patients, distinguishable law, and potentially different medical devices. Given the volume of other cases in play—which [defendant] estimates at over 300—the Court agrees that any potential benefit is outweighed by the economic and time burdens that [defendant] would surely incur if it were required to produce all responsive complaints, answers, reports, and depositions.

Id. at *10.

Rather than allow the overwhelmingly broad discovery plaintiff sought, the court directed defendant to produce two things.  First, a list of other lawsuits involving a fracture of the same component at issue in this case.  If plaintiff wants any materials in any case, they can pull them themselves.  Second, the reports and depositions of any expert defendant intended to rely on in the current case (with redactions of private health information).   The court concluded these much narrower categories were potentially aimed at discovering impeachment evidence and therefore discoverable.

And, although it has nothing to do with our subject, we’re ending with this blogger’s favorite clip from Jurassic Park.  Enjoy.