This post comes from the non-Butler Snow side of the blog.
Today’s case gives us two cautionary tales. First, there are many ways to make friends with a court. Dumping thousands of exhibits onto its doorstep and saying, “You figure it out,” is not one of them. Second, taking documents stamped CONFIDENTIAL or HIGHLY CONFIDENTIAL and casually using them in another case as if those words were decorative is sanction bait.
Heinrich v. Ethicon, Inc., 2025 U.S. Dist. LEXIS 216989 (D. Nev. Nov. 4, 2025), is a long-running pelvic mesh case—filed in 2013 in the MDL and remanded in 2020. A trial on statute of limitations only resulted in a plaintiff verdict. After which both sides sought additional discovery. Plaintiff’s request to re-depose the implanting surgeon was denied. However, plaintiff had a collateral state court action pending against the surgeon asserting breach of fiduciary duty and fraud. So, plaintiff took his deposition in that case. But here’s the rub—at that deposition, plaintiff showed the doctor confidential and highly confidential documents produced by defendant in the MDL. Defendant moved for sanctions.
In its motion, defendant claimed that plaintiff had violated the MDL protective order with respect to over 200 documents. In response plaintiff claimed that most of the documents had been publicly disclosed or de-designated prior to the deposition. After argument on the motion, the court ordered plaintiff to file a supplemental brief and specifically directed plaintiff not to include any additional argument and not to file any additional documents, but rather to only identify which documents she believed were not subject to the protective order and why. Id. at *4-5.
Not only did plaintiff include additional argument in her filing, she attached 5,890 pages of exhibits and asked the court to figure out which were confidential and which were not. To nobody but plaintiff’s surprise, the court was not interested in playing “Where’s Waldo?” with confidential materials. It was plaintiff’s (really her counsel’s) job to sort through the documents. Instead, plaintiff violated the court’s order—which is never a good look—and asked the court to be an ”archaeologist” or “pig, hunting for truffles.” Id. at *6. We are all aware of the discovery strategy of burying your opponent in a mountain of paper and hoping they give up. Spoiler: judges don’t give up. They have long memories and limited patience for document dumps masquerading as compliance. So, the court struck everything except the portion of the supplement that contained a spreadsheet which attempted to show which documents had been previously disclosed. Id. at *7.
On the merits of the motion, the court found that as to twenty-five documents, plaintiff had violated the MDL protective order by using them in the state court litigation. As to those documents plaintiff “dumped” on the court exhibits, exhibit lists, hearing transcripts, and court orders from other cases and “speculated” that the documents may have been disclosed in the “hodge podge.” But again, the court was unwilling to “excavate masses of papers in search of revealing tidbits.” Id. at *18 (citation omitted). Because the MDL protective order explicitly limited the use of confidential materials to that litigation only, plaintiff violated the court order.
Nor could plaintiff demonstrate that the violation was “substantially justified.” Plaintiff easily could have put defendants on notice of the state court deposition and her intention to use the confidential documents. While the MDL protective order did not address this particular situation, it contained provisions for other situations where a party may want to use confidential information, calling for advance notice. Id. at *20-21. “Such notice would have given plaintiff a safe harbor, protected defendants, and brought about the confidentiality issue for resolution before the proverbial horse was out of the barn.” Id. at *22.
And this is most definitely why sanctions are warranted. The defendant did not find out until after the fact. The barn door was supposed to be locked, subject to notice and a chance to object—not flung open in the name of creative litigation strategy. Defendants shouldn’t be left chasing hoofprints and damage control. Courts have to reinforce that confidential actually means confidential. Here, that meant plaintiff was prohibited from using the state court deposition of the surgeon in the federal case, was prohibited from using the 25 confidential documents in any other action, including the action against the surgeon, and had to pay reasonable attorneys’ fees and expenses in connection with bringing the sanctions motion. Id. at *22-23.
Between the data dump and the protective order violation, this case was fraught with procedural mischief and disrespect for the court. So, the morals of the cautionary tales—follow the court’s orders. The court — and your credibility — will thank you.