This post is from the non-Reed Smith side of the blog.

We live in a “producer-pays” world.  Our discovery system gives plaintiffs a windfall by allowing them to demand production of millions of dollars’ worth of documents and data and to impose those costs almost entirely on defendants.  Now think about that in MDLs.   Plaintiffs who have no incentive to be reasonable tend to ask for the sun, the moon, and the stars.  MDL courts faced with a few hundred cases thrown together tend to view the scope of permissible discovery through a rather broad lens. That leads to a perfect storm for defendants.  Which is why the recent decision in the In re Allergan Biocell Textured Breast Implants Products Liability Litigation, 2025 U.S. Dist. LEXIS 55497 (D.N.J. Mar. 21, 2025), placing some of the burden back on plaintiffs caught our attention.

Plaintiffs demanded production of all manufacturing records for every biocell implant from 1990 to the present—over thirty years-worth of data amounting to over 4 million pages of records.  Even after the court limited the discovery to only active MDL plaintiffs and named class representatives who had provided a correct serial number, the burden on defendant was still extremely onerous given that all of the records were only in hard copy stored in Costa Rica and each manufacturing batch record (“MBR”) was made up of several parts that were not stored together.  Defendant made several proposals to try to reduce the burden.  First, it asked plaintiffs to review a set of exemplar MBRs to see if there were any parts that could be omitted from production.  Plaintiffs insisted they needed every element of the MBRs.  Next, defendant offered to permit an onsite inspection of the records, which would include detailed instructions from defendant on how plaintiffs could find the records they wanted.  That offer was also refused.  Finally, defendant offered to produce the records without assembling them into individual MBRs, but rather to produce them how they are kept in the ordinary course of business.  Defendant acknowledged that doing it this way would be less time consuming but would be an over-production that would be very expensive and for which they would seek cost-shifting.  With all of that information, plaintiffs welcomed defendant’s over-production. 

Plaintiffs could hardly claim surprise when defendant went forward with its motion to shift or at least split the costs of producing the MBRs which cost over $700,000 to scan.  Defendant argued that those costs were avoidable because it had offered plaintiffs access to the records for inspection and copying pursuant to Federal Rule of Civil Procedure 34(b).  Or, alternatively, that the pursuant to Rule 26(c) the costs were an undue burden because only 1.1% of the production related to a device implanted in an MDL plaintiff.   In opposition, plaintiffs argued that inspection would have been “futile” because of defendant’s “disorganized recordkeeping,” and that shifting costs would have a “chilling effect” on future discovery. 

But really that is the whole point.  Cost-shifting should have a chilling effect.  It should make plaintiffs think twice about whether they really need the sun, the moon, and the stars when just the stars will do.  It should make plaintiffs think about whether they need every document or just exemplars.  It should make plaintiffs think about whether it is better to compromise.  It forces plaintiffs to have some skin in the game.

Which is what both the Special Master and the district court judge concluded in In re Allergan Biocell.  Defendant fully complied with Rule 34 by providing plaintiffs an opportunity to inspect the records, participating in detailed meet and confers about how the documents are organized, creating indices to help guide plaintiffs review of the documents, and providing exemplar documents for plaintiffs to review in advance of any inspection.  Id. at *507.  It was plaintiffs’ refusal to conduct an inspection or otherwise limit the production request in a meaningful way that caused defendant to incur the high costs—which defendant repeatedly warned of. Id. at *508.   

Plaintiffs’ continued request for complete MBRs led to a fork in the road. Plaintiffs were given a choice between waiting for [defendant] to assemble the records or getting access to all the documents quickly, without reorganizing by [defendant], and they chose the latter.

Id. at 526.  Moreover, defendant not only offered to allow onsite inspection, but also to provide “a means of reasonably facilitating that search.”  Id. at *528.  But when asked if they wanted “every piece of paper in the box” regardless of whether every piece related to a plaintiff, plaintiffs said “Yes.”  Id. at *529.  Sun, moon, and stars.  Maybe if they have to pay for the 99% of the documents that were completely irrelevant, next time plaintiffs will actually review the sample set and make a reasoned choice to only ask for what they need—or what they can afford. 

And that was not the only discovery dispute.  Plaintiffs also sought a corporate witness deposition on defendant’s document retention and preservation.  That’s discovery on discovery which is not permitted absent a showing of a “specific discovery deficiency.”  Plaintiff’s deposition notice also sought production of litigation hold notices and related information that is protected by attorney-client privilege that is only trumped by a showing of spoliation.  The only showing plaintiffs could make is that defendant did not produce custodial documents for five c-suite executives who had left the company more than 20 years earlier.   That only got them permission to inquire about the dates and implementation of the litigation holds, “but not the litigation holds themselves” and they could not ask about litigation holds unconnected to the current litigation.  Id. at *513.  In other words, plaintiffs can kick the tires, but they aren’t getting under the hood.