Sometimes discovery can feel like a four-letter word.  Take your pick – hunt, seek, find, dump, onus, cost(ly).  When we are talking about responding to interrogatories and document requests, we can add a few more – dull, drag, bore . . .  In other words, it’s not the most exciting part of litigation.  But the discovery process takes up a considerable portion of the time and resources devoted to a case.  So, the law on what is allowable discovery is hardly inconsequential.  Making Neale v. Coloplast Corp., 2020 U.S. Dist. LEXIS 222505 (E.D. Tenn. Nov. 2, 2020) worthy of a blog post.

Neale is a medical device case and the opinion is on plaintiff’s motion to compel more fulsome responses to a slew of interrogatories.  Admittedly, the rulings go in plaintiff’s favor on a few, but there are several general holdings that are helpful to defendants.

Plaintiff’s first interrogatory asked defendant to provide the substance of every complaint/adverse event it had ever received related to the device at issue, including the identities of the persons who had submitted the complaints/reports.  Id. at *7.  As to the identities, the court agreed with defendant that it was barred by 21 C.F.R. §20.63(f) from providing that information.  The regulation forbids a manufacturer from disclosing any information that would identify a voluntary reporter or anyone related to the report.  Id. at *8-9.   The court also agreed with defendant that it was not required to produce “every” adverse event.  “[C]omplaints unrelated to the specific injuries alleged by Plaintiff are not relevant to any claims or defenses in this case for their inclusion to be proportional to the needs of the case.”  Id. at *10.

But, more importantly defendant raised the question of whether it should have to respond to this interrogatory at all given that the information is either publicly available through the FDA’s MAUDE database (Manufacturer and User Facility Device Experience Database) or through documents defendant already produced.  Id. at *11.  Since plaintiff had sources available to her to search for the documents she wanted, she needed to do that work first before seeking discovery from the defendant:

The Court will not order Defendant to assist Plaintiff in searching this publicly available database. A defendant need not produce information readily available to the public, including plaintiff[ ]. . . . Since it appears from Plaintiff’s argument . . .that Plaintiff’s counsel has not made any effort to access the database to date, Plaintiff has not demonstrated it is inconvenient, burdensome or more expensive to obtain the requested documents from the public records.

Id. at *12 (citations omitted).  Making defendant re-state the substance of each complaint in an interrogatory response is “duplicative” discovery that the court was unwilling to order.  Id. at *14.

In addition to not wanting to search the MAUDE database, plaintiff also did not want to have to search the documents defendant already produced in a searchable format.  One of the upsides of electronic discovery (perhaps the only upside) is that documents are produced with metadata and full-text searchable.  Yet, plaintiffs often still insist on defendants identifying specific documents by Bates number in interrogatory responses. That overlooks plaintiff’s ability to craft her own searches which this court recognized:

The burden on Defendant of performing the necessary searches, which Plaintiff could perform herself and tailor to her own needs by utilizing different filters or combinations of search terms, would vastly outweigh the likely benefit to Plaintiff of having a list of all relevant complaints. In addition, if Plaintiff performs the searches, the parties will avoid unnecessary disputes over search terms.

Id. at *15.

Plaintiff’s second interrogatory was essentially the same as her first only expanded to include any other products made by defendant of the same type.  The court found plaintiff made no effort to show that these other products were “substantially similar” to the product at issue and therefore, the request was not proportional to the needs of the case.  Id. at *18-19.

Plaintiff also lodged an interrogatory asking defendant to identify things like the 510k number of the device, the date of FDA approval, a description of the device, and its intended uses.  Id.  at *21-22.  Defendant responded by providing the link to the FDA’s publicly available online 510k summary.  Plaintiff wasn’t satisfied but the court was:

the Court will not order Defendant to supplement its response by restating information that is already fully available to Plaintiff should she, metaphorically speaking, decide to drink the water to which she has been led.

Id. at *22.  Defendant pointed plaintiff to several public, online sources of information and nowhere in plaintiff’s motion to compel did plaintiff explain or show what requested information was missing from those public sources.  Failing to meet that burden, the court was unwilling to put an even greater burden on defendants.

So, defendants can lead plaintiffs to water . . .  and courts can make them drink.