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
Today we have a guest post from Chris Campbell, Stephanie Peatman, and Sarah Carrier, all of DLA Piper, following up on a subject we wrote about not too long ago – ediscovery for defendants, but involving plaintiff’s devices that directly keep track of relevant health information, not social media. The more
Today’s case — In re Tepezza Mkt’g, Sales Pracs., & Prod. Liab. Litig., MDL No. 3079, 2025 WL 81338 (N.D. Ill. Nov. Jan. 10, 2025) – doesn’t really break new ground on the substantive law, in fact it is a split decision. But it comes from an unusual procedural posture worth pointing out.
The
Back in 2008, we wrote a post, No, Bu shi, Non, Iie, Nada, Nyet…., collecting a significant body of law holding that overseas defendants are not required to translate, at their expense, documents prepared in their non-English home languages. The other day we came across Sessoms v. Toyota Motor Sales, U.S.A., Inc., ___ S.E.2d ___, 2024 WL 5249823 (N.C. App. Dec. 31, 2024), reversing yet another order that a foreign defendant pay for translating its own documents:
[W]e conclude the trial court erred by requiring the . . . Defendants to create new documents in English of documents already provided that are in the Japanese language. Rule 26 of our Rules of Civil Procedure allows a party to seek documents in the possession of the adverse party; it does not generally require the adverse party to pay for any said documents to be translated into the English language. In other words, there is no duty to produce documents that do not exist.
Id. at *2 (citation omitted). Sessoms was “persuaded by what we perceive to be the greater weight of authority in the United States that a party producing documents is not required to create new documents consisting of English translations of documents already provided.” Id. at *3. Sessoms cited eight cases exemplifying that “authority” – three of which were decided after our 2008 post. That suggests that the post could use an update.
So here’s that update.Continue Reading Still Nyet, Defendants Not Required to Pay for Translation of Documents
This blog has long encouraged defendants in prescription medical product liability litigation to seek relevant ediscovery from plaintiffs. We even have an ediscovery cheat sheet with almost 250 favorable decisions either allowing defense-side ediscovery in personal injury cases or else sanctioning plaintiffs for spoliating sought-after electronic data. But we confess, we’ve been focused so firmly on social media and smartphones, where ediscovery from plaintiffs originated, that we have ignored the rising popularity of fitness trackers, Fitbits, smart watches, smart rings and similar devices (even clothing) being marketed to people who may eventually become plaintiffs. These products create a great deal of health-related (and other) information that is of obvious relevance in mass (and other) tort litigation.
What we found is that surprisingly few defendants seem to be seeking this type of information – at least there are very few decisions involving discovery of these devices.Continue Reading Ediscovery for Defendants – The New Frontier
For our friends practicing in the Sunshine State, we want to highlight new rules amendments which took effect on January 1, 2025. Most notably, Florida joins states around the country adopting the proportionality language from Federal Rule of Civil Procedure 26(b)(1). See Fla. R. Civ. P. 1.280(c).Continue Reading New Proportionality Language for Florida Rules
The decision in Burton v. AbbVie, Inc., 2024 WL 3207008 (C.D. Cal. Feb. 21, 2024), presented an interesting, if somewhat arcane, discovery question: whether a plaintiff’s treating physician, listed as only an “un-retained” percipient witness for which no expert report is required under Fed. R. Civ. P. 26(a)(2)(C), can be deposed during the period of time that a court’s scheduling order provides solely for “expert” discovery. Burton held that was proper under the rules:
Plaintiff’s disclosure of [several treaters] as non-retained experts . . . cuts against her argument that these doctors are only percipient witnesses. Furthermore, while Plaintiff asserts that the treating physicians will only testify to treatment given in the past and what may be needed in the future, the Court notes that this testimony will inherently require the physicians to rely on their medical training to opine on what future treatment may be needed. Accordingly, this Court joins the other district courts in this circuit to find that a treating physician, by virtue of their training and skill, is also properly considered an expert witness. Therefore, Defendants are free to depose [the treaters] during expert discovery.
2024 WL 3207008, at *3 (no citations omitted) (emphasis added). Plaintiff offered “no authority” for her contrary argument, and the “handful of unpublished cases” the defendant cited are not mentioned in the Burton opinion. So we decided to take a look.Continue Reading Treating Physicians May Be Deposed as Experts
Some of your bloggers recently attended the American Conference Institute’s annual Drug and Medical Device Litigation Conference in New York. One of the conference panels addressed a recent unsettling ruling in a non-drug-device case that held communications training provided by defense counsel for their client’s employees was not only discoverable but admissible at trial. In re Google Play Store Antitrust Litigation, 664 F. Supp.3d 981, 983 (N.D. Cal. 2023). Moreover, some of the “practices” that found their way into the opinions seemed to us not only privileged but entirely unobjectionable:
Plaintiffs also point out that, for years, [defendant] has directed its employees to avoid using certain [legal] buzzwords in their communications. . . . Eight years later, [defendant] still was telling employees . . . “[a]ssume every document you generate … will be seen by regulators.”
United States v. Google LLC, ___ F. Supp.3d ___, 2024 WL 3647498, at *113 (D.D.C. Aug. 5, 2024) (citation omitted). That’s only good sense, and no different than the other side (at least if they have good lawyers) tells its own individual plaintiffs before they have to testify. Continue Reading Privilege and Lawyer-Provided Employee Training
We have no personal knowledge of the litigation concerning GLP-1 receptor agonist medications and the Blog has not posted on it yet, but we do know something about litigation over widely used prescription medications. Over the decades, there have been many drugs or classes of drugs that became “blockbusters” because they were widely prescribed to
Anyone who knows this blogger is well aware this is a topic near and dear to her heart. For years, plaintiffs railed against defendants making “boilerplate” objections to discovery requests. So much so that the issue was addressed by the 2015 Amendments to the Federal Rules of Civil Procedure. While Rule 33 for interrogatories already