We are careful when discussing discovery sanctions, particularly spoliation, for a simple reason. The companies we represent that make medical products tend to have allegations about failing to produce discoverable information in the course of the litigation against them. Indeed, there is a style of litigating against drug and device companies, and other corporate defendants,
In a classic case of overreaching, plaintiffs in the In re Abilify MDL, sought sanctions against the defendant for not preserving emails dating between 2002 and 2006 – more than a decade before the start of the litigation. We have a hard time even contemplating what a duty to preserve that covered those emails would…
Stop us if you have heard this before. A novel or movie depicts litigation in which a large corporate defendant is sued for causing a plaintiff or plaintiffs significant injuries through a frivolous or non-beneficial product. In defending the litigation, the corporation and its unscrupulous lawyers hide important documents from the scrappy plaintiff lawyer, who,…
A couple of weeks ago, we reported that, under pressure from the Drug and Device Law Rock Climber, we were headed to New York to see the Broadway production of Orwell’s 1984. Publicity surrounding this spectacle focused on audience members fleeing, fainting, and/or vomiting during the torture scene. Incautiously well-fed (Vietnamese/Thai food from a singularly…
We’ve blogged several times over the past couple years about the 2015 amendments to the federal rules as they pertain to discovery, including electronic discovery. Earlier this year, after the amendments had been in effect for a few months, we complained about how some courts were evading the new rules by citing a Supreme Court case, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Oppenheimer was dependent upon language in the prior Rule 26 − “reasonably calculated to lead to discovery of admissible evidence” − that the 2015 amendments intentionally deleted. We supported our point with empirical research showing that, of 73 citations to Oppenheimer following the amendments’ effective date, more than 70% of them, 53 cases, cited to the headnote for the obsolete language.
Well, it seems that we aren’t alone in recognizing a pattern of disregard for the 2015 amendments in recent discovery decisions. The MDL judge in In re Bard IVC Filters Products Liability Litigation, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016), pointed out the same kind of ongoing judicial disregard for the rules that we spotted earlier. IVC Filters held that – yes, even in an MDL – discovery requests must be proportional to their compliance costs. It just so happens that this judge, Hon. David G. Campbell, is also chair of the Advisory Committee on the Federal Rules. So he knows of what he speaks.
You’re probably thinking that the discovery request in question in IVC Filters had to be pretty absurd, and you’re right. Despite not a single overseas plaintiff in the MDL, plaintiffs sought all communications with foreign regulators from foreign affiliated companies of the defendant. 2016 WL 4943393, at *3-4. Specifically, plaintiffs sought to force the defendant to rummage through electronic communications of affiliates in “Canada, Korea, Australia, India, Singapore, Malaysia, Italy, Ireland, the United Kingdom, Denmark, the Netherlands, Sweden, Norway, Finland, Mexico, Chile, Brazil, and China . . . for the last 13 years.” Id. at *4. You can imagine how expensive and time consuming it would be to sort through that many overseas computer systems. Adding to the expense would be obsolete formats, some over a decade old, in multiple languages. The objective would be hypothetical communications concerning other countries’ regulatory schemes not at issue in the litigation. As we’ve discussed before, foreign regulatory actions, as such, are neither relevant nor admissible in American product liability litigation.
That’s where the 2015 rules changes came in. “The new rule defines the scope of permissible discovery as . . . non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Id. at *1. The language before the amendments was broader. “Before the 2015 amendments . . . inadmissible evidence was discoverable if it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’” Id. IVC Filters pointed out that deletion of the “reasonably calculated” language specifically intended to curtail discovery that had gotten out of hand:
The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” . . . The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments.
Id. at *2 (quoting Advisory Committee Notes for 2015 Amendments, 305 F.R.D. 457, 555 (2015)).
We’ve been remiss in updating our cheat sheet devoted to ediscovery for defendants. Because of the broad nature of the topic – these cases can and do arise in a wide variety of non-drug/device contexts – we have to research them separately to find what we need. It’s been two years since we last updated, and we just did it now. The new decisions are below, and every one of them either allows access to a plaintiff’s social media activity or imposes sanctions on plaintiff for resisting such discovery.
Except for one. We’ve also included Facebook, Inc. v. Superior Court, 192 Cal. Rptr. 3d 443 (Cal. App. 2015), a third-party social media subpoena case. Facebook is included because the California Supreme Court granted review at the end of 2015 (so the opinion itself has been depublished), and whatever that court ultimately has to say about ediscovery of social media is likely to be very important.
We have a few other comments from just having reviewed a large number of social media discovery cases. Since this is a cheat sheet, we only collect the good cases – because we don’t believe in doing the other side’s research for them, these are comments primarily about cases that we haven’t included. First, defendants would be well advised not to make broad requests for social media discovery without being able to back them up with something more solid than suspicions. Increasingly, blanket social media discovery demands succeed only when based on a plaintiff’s contradictory public social media evidence or else indications of attempts to delete or otherwise hide social media activity. Our word to the wise, “investigate.” Evidence of plaintiff-side perfidy is often not hard to find. Second, consider adding reasonable time, subject matter, and other limits to discovery requests suggested by the nature of the case. If plaintiff’s business-related activities aren’t relevant, exclude them from the request. We’d like your case to go on our cheat sheet.
For years we’ve advocated about ediscovery for defendants – consisting mostly of material gathered from a plaintiff’s social media postings. OK, so let’s assume some degree of success. Defense-side ediscovery has generated some good stuff, and come trial, we want to get it admitted into evidence. Now what?
That’s the subject of today’s rather short…
As we’ve discussed previously, and as the legal profession is by now well aware, the discovery provisions of the Federal Rules of Civil Procedure were significantly amended effective December 1, 2015. One of the foundational changes was to Rule 26(b)(1), and was intended to reduce the scope of discovery generally. The old excuse for ridiculous over-discovery – “reasonably calculated to lead to the discovery of admissible evidence” – is no more. The new, more restrictive, language defining the scope of discovery is “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). As the committee notes to this amendment explain, the old language was frequently misunderstood to permit discovery into material that was itself irrelevant to litigation:
The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “‘relevant’ means within the scope of discovery as defined in this subdivision …” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Committee Note to Rule 26, 2015 US Order 0017 (April 29, 2015).
That’s all well and good, but since amended Rule 26 became effective, it has become evident that some courts continue to do the same thing they’ve always done, giving lip service to the new rule, but effectively applying the old standard. One recent example is Hodges v. Pfizer, Inc., 2016 WL 1222229 (D. Minn. March 28, 2016) – yet another Stevens-Johnsons Syndrome case, this time against Advil − in which the plaintiff sought, and obtained, excessive discovery concerning: (1) dealings with foreign regulators (“seven countries and three areas,” id. at *3) who do not follow the same standards as the FDA; (2) “financial documents” concerning Advil, including “profits (gross and net) . . . sales forecasts, advertising budgets, business plans, marketing plans, and financial plans” for a ten-year period, id. at *4; and (3) old “sales and marketing documents . . . from before June 2005, when the FDA required manufacturers to include new warnings about” this condition. Id. at *4. While the opinion doesn’t mention the date of injury, we thought it might be 2010 (five years after the label change) and since we have a PACER account and know how to use it, we were able to confirm that date as correct.
Predictive coding (also called “technology assisted review” (“TAR”)) involves the use of computerized artificial intelligence to extrapolate from attorney coding of small (and repeated) sample document sets ultimately to govern huge document productions. This technology has appeared (to us) probably the most promising development in discovery since that subject went electronic … and promptly ran badly off the rails due to exorbitant cost. Nothing else we know of – short of significantly tighter legal limits on discovery − has the promise of reducing ediscovery costs to the extent that predictive coding can. Thus, we’ve blogged about it several times since 2012, when the first cases contemplating its use were decided.
But we haven’t said much recently.
Eighteen months can be forever on the technological frontier, so we decided to take another look at the case law to see what had happened to predictive coding since the first three cases in 2012.
The case law has exploded. Where only a handful of cases existed back then, now we find dozens. Substantively, we’re happy to report that courts don’t seem to have anything bad to say about using computers to undertake relevance review for documents subject to production in litigation.
We assume that all of our readers by now know that significant changes to the federal discovery rules went into effect on December 1, 2015. We’ve posted about them frequently. We’re not going to bore you by describing the changes for the umpteenth time. There are a couple of new developments, though, that are worth noting. First, on December 31, 2015, the Supreme Court, per Chief Justice Roberts, issued its “2015 Year-End Report on the Federal Judiciary,” available here. Coming hard on the heels of the rules changes going into effect, the 2015 Report is the best indicator of how the Court contemporaneously intended these rules changes to be applied. To the extent that the other side is trying to pooh-pooh these changes as not changing much of anything, the 2015 Report suggests that they are quite wrong:
- “Many rules amendments are modest and technical, even persnickety, but the 2015 amendments to the Federal Rules of Civil Procedure are different. Those amendments . . . address the most serious impediments to just, speedy, and efficient resolution of civil disputes.” 2015 Report at 4.
- The amendments “focus discovery − the process of obtaining information within the control of the opposing party − on what is truly necessary to resolve the case” and “address serious new problems associated with vast amounts of electronically stored information.” Id. at 5.
- “The amended rules . . . mark significant change, for both lawyers and judges, in the future conduct of civil trials. Id.
- “The amendments may not look like a big deal at first glance, but they are. That is one reason I have chosen to highlight them in this report.” Id.
- “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality. . . . The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.” Id. at 6-7 (block quote from Rule 26(b)(1) omitted).
- “The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1 . . . only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change.” Id. at 9.
- “[T]he 2015 civil rules amendments provide a concrete opportunity for actually getting something done.” Id. at 11.
The Chief Justice’s 2015 Report was among the authorities cited in Kissing Camels Surgery Center, LLC v. Centura Health Corp., 2016 WL 277721 (Mag. D. Colo. Jan. 22, 2016), medically-related (but not drug/device) litigation involving claims – and counterclaims – between four surgical centers and some of the largest health insurers in Colorado. The lead plaintiff, Kissing Camels, is located in Colorado Springs, which accounts for the unusual name (a rock formation). Very briefly, the subject matter of the lawsuit involves health insurance reimbursements, which vary depending on whether the health care provider is in the insurer’s network.