They say that in California everybody’s a star. Or maybe, in today’s terms, everybody’s an influencer, has social media, a blog, or—in this case—an autobiography. Today we discuss a discovery dispute in a California federal court that is somewhat unique, but that raises issues we see every day in drug and device cases.
The decision, Cooley v. C.R. Bard, Inc., 2024 WL 291339 (S.D. Cal. Jan. 25, 2024), arises from the use of an IVC filter. In her deposition, Plaintiff revealed that she had written about her IVC filter in her draft, unpublished autobiography. Like any good lawyer would, defense counsel asked plaintiff to produce the autobiography (they initially sought the whole thing, then scaled it back to the portions covering the scope of medical records discovery). What they got back was a less-than-impressive three-page excerpt of the 258-page draft. Plaintiff said that this was sufficient because these three pages were the only ones that “mention or refer to the Bard IVC Filter.” Id. *1. A motion ensued. Plaintiff asserted three objections to any further production: (1) relevance, (2) proportionality, and (3) attorney-client privilege. The court rejected the first two objections and seems ready to reject the third.
First, the court held the evidence was relevant. In drug and device cases, we frequently encounter plaintiffs who allege that the product impacted their enjoyment of life while also resisting discovery about their personal lives. The court correctly understood that a plaintiff claiming his or her “life has been negatively impacted” opens up discovery on the state of that person’s life.
Part of her means of showing the allegedly negative impacts on her life has been to testify that, post-fracture, she can no longer do the things in life that brought her joy, at least in some respects. Thus, depictions of plaintiff’s life, such as those likely to be contained in an autobiography, are relevant because they may rebut or bolster her claims about her limitations and the extent of her injuries.
Id. This reasoning would apply equally to a case involving any kind of social media posts. Where a plaintiff claims an impact on his or her life, defendants are entitled to discovery about his or her life activities.
The court also rejected any proportionality concern. Given the allegations in the lawsuit, “damages and the alleged limitations on plaintiff’s lifestyle” would be the dominant issues at trial, and defendant had no other way to access the information other than through plaintiff. Id. *2. Nor would it be costly or difficult to produce. Plaintiff also argued that there were privacy concerns with the production—citing not just her expectation of privacy, but also that of third parties she named in the autobiography. The court was not persuaded by this argument, in part because plaintiff had already shared her autobiography with other people. Any other privacy concerns could be addressed by the protective order already in place in the case.
Finally, the court addressed privilege. To support her argument, Plaintiff provided redacted pages referring to an attorney. Although Plaintiff argued that this referred to an attorney-client privileged communication, the court noted that (1) arguments of counsel are not evidence and (2) Plaintiff didn’t submit any actual evidence that showed privileged communication. The court didn’t know what the substance of the redactions in the autobiography even were. The court gave the plaintiff a second bite at the apple to meet-and-confer and present evidence of attorney-client privileged communication for in camera review. But the court also noted that Plaintiff had serious waiver concerns. Plaintiff already testified that she shared drafts of her autobiography with “a couple of people,” so if she showed them the redacted portions, she shouldn’t have much hope at avoiding waiver of any claim of privilege. The court ordered Plaintiff to identify the persons to whom she disclosed her draft autobiography, the dates of the disclosure, and whether the portions contained the redacted sentence. We’ll see how the Court ultimately rules, but it is certainly holding Plaintiff to her burden to establish privilege.
Not all plaintiffs will have written an autobiography, but this case provides a nice reminder that where plaintiffs place their enjoyment of life at issue, that includes their entire life—not just the parts plaintiffs want to share.