We came across something the other day that we don’t see very often, or really ever. The plaintiff in a medical device case served a request to inspect the two defendants’ manufacturing facilities, claiming that he was entitled to observe the premises where the device was made. Not so fast, said the defendants. And with good reason.
These kinds of requests are probably not unprecedented, but we are unaware of any published order that addresses them. We personally have seen a request for inspection of a medical device manufacturing facility only once. That was in or about 2000, when a now non-existent medical device manufacturer voluntarily withdrew certain products from the market. Eager to demonstrate product quality, a vice president posted a video on the company website inviting people to come visit the factory. The video did not go viral—this, after all, was the pre-Instagram, pre-TikTok early 2000s. But still, some enterprising plaintiffs’ attorneys wrote polite letters saying, “We accept, when shall we stop by.” D’oh!
Those inspections did not happen, and neither did the facility inspections that the plaintiff requested in Thelen v. Somatics, LLC, No. 8:20-cv-1724, 2022 U.S. Dists. LEXIS 146584 (M.D. Fla. Aug. 16, 2022). The plaintiff in Thelen served his request under FRCP 34, which sure enough allows a request “to permit entry onto designated land or other property possessed or controlled by the responding party.” Rule 34(a)(2). There are, however, limits, hinging mainly on the relevance of the inspection and the value of the inspection balanced against the burden:
[A] court evaluating a request to permit entry under Rule 34 will consider the relevance of the inspection and balance the value of the information sought with the burden of the proposed intrusion. Further, . . . the court must limit the frequency or extent of discovery otherwise allowed . . . if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.
Thelen, at *4 (internal quotes omitted). This standard is not unfamiliar, nor is the requirement that a party seeking a protective order bears the burden of showing the necessity of the order and a “particular and specific” showing of facts. Id. at *4-*5.
The defendants in Thelen were on solid ground. The plaintiff argued that the inspection was relevant because (1) he was entitled to observe the “premises and conditions of where the device is made” and (2) the inspection would yield “relevant information regarding Defendant’s liability and their respective roles.” Id. at *5.
Let’s pause here. The first argument obviously proves too much—if this plaintiff is “entitled,” then so is every other plaintiff, which cannot be the case. The second argument merely mouths discovery buzzwords (“relevant information regarding liability”), which are not compelling and do not explain how the plaintiff could not get the information through other methods.
What did the defendants say? First, no relevance. One defendant reminded the district court that the plaintiff had not alleged a manufacturing defect, and the other asserted that the plaintiff’s devices were not manufactured there. Second, they both highlighted the undue burden. Counsel would have to travel to both facilities. Id. at *8. Further, an inspection would unnecessarily interrupt their manufacturing operations, and in the case of one defendant, “the facility is also the residence of its president, where he lives with his family.” Id. at *6-7. (Wow, talk about the lack of separation between work and personal life; that is one company person who has taken pandemic-era “work at home” very seriously.)
The district court probably could have stopped there, but when considering that the plaintiff had not fully tried other, less intrusive means of discovery, the court had little difficulty ruling that “[t]he burden of the requested discovery outweighs its likely benefit.” Id. at *7. Both defendants represented that they would respond to interrogatories on the product’s manufacturing if the plaintiff were to propound them. Id. Moreover, the plaintiff already had some of the information through interrogatory responses, documents, and a deposition of one defendant’s president. That witness did not know about the other defendant’s processes, but the remedy there was to take the deposition of someone who knew—which the plaintiff had not done.
All this added up to good cause for preventing the inspections and an order denying the plaintiff’s motion to compel. As we observed at the outset, this is not a scenario that we have often seen, but we are sure that if you have, you will let us know.