Wouldn’t it be nice if all legal disputes could be sensible? But, alas, overreaching plaintiffs make work, make motions, and often make craziness.  Sometimes those overreaching plaintiffs can be the government, and that makes things even worse. 

In Hayek Medical Devices (N.Am.) v. Vermont, 2025 Vt. Super. LEXIS 117, 2025 LX 12055 (Vt. Super. May 9, 2025), it was Vermont – yes, the home of Ben & Jerry’s, Orvis, and fine maple syrup – that brought the crazy. 

Are there heroes and villains in this lawsuit? By all rights, this should be a straightforward commercial case.  The plaintiff medical device company sold 50 ventilators to Vermont during the early days of the COVID 19 pandemic. Vermont did not pay for the devices.  It sent them back.  The plaintiff would have preferred to have been paid what was promised. Time for a lawsuit. Fun fun fun. 

Vermont took the position that the ventilators were unsuitable and that the sale was infected with misrepresentations.  So far so sane. 

But farewell sanity, love, and mercy.  Vermont made bizarre and overreaching discovery demands. It sought two databases from the medical device manufacturer. Vermont contended that the databases might help to show that the device company had not mitigated damages.  

God only knows why the state could not have stopped there.  But thestate not only demanded ediscovery from the defendant’s product tracking databases, but further demanded that the plaintiff manufacturer “provide the resources necessary for the State to analyze the data to defend this case.”  Thus Vermont demanded not only production of the databases themselves, but also “the technical capability that would include a server, the software and technical expertise and any other resources that may be needed to analyze the data from the databases.”  In other words, the state was demanding that the plaintiff company pay for its analysis of the defendant’s electronic data.  Help me Rhonda. 

It is bad enough to seek burdensome discovery, and it is worse to do it again. After filing a motion to compel compliance with those broad demands, Vermont took a couple of depositions and then supplemented its discovery motion with a demand for appointment of a special master to oversee discovery.  

Now we get around to why this case, odd as it is, might matter to you. Although here we are talking about discovery demands made by the defendant, and a state at that, similar discovery demands could just as likely (maybe more likely) be made by personal injury plaintiffs against a prescription medical product manufacturer as a defendant in product-related litigation. 

But don’t worry baby. The overbroad, overly/intrusive, and overly-expensive discovery requests were denied.  “The State has failed to demonstrate any basis for such unconventional and extraordinary relief.”  

The court also shut down the state’s demands for production of a wide range of documents in connection with a deposition.  That request was denied because it was a transparent attempt to seek more document discovery after the relevant deadline had passed.  Indeed, the tardiness and evident gamesmanship of the discovery demands seem to have poisoned the well. The state’s demand that the documents be produced before, rather than at, the deposition further demonstrated the improper purpose animating the request.  

Part of the good vibrations we picked up from the Vermont superior court’s analysis was the extensive reliance on federal law, including federal rules and the “numerous” federal cases rejecting similar attempts to impose such vast and unusual discovery obligations. 

But there are some differences between federal and Vermont law, and those differences helped the device company fend off the state’s demands.  The court rejected the state’s request for the unilateral appointment of a special discovery master.  The state of Vermont had no rule allowing special masters.  The state could not force the plaintiff to pay for that, and special masters are allowed in Vermont state court matters only by agreement.  Moreover, the request was – again – late because discovery was mostly over and a summary judgment motion was pending. The state’s request for a special master just wasn’t made for these times.

The lesson is that when a litigation adversary makes crazy discovery demands, even if the adversary is a state, don’t back down. Be true to your school (and your fellow defense hacks).  

(The author of this post wrote it while lying in bed, just like Brian Wilson did.)