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 memorable Hell’s Kitchen bistro) and more than a bit apprehensive, we made our way into the theatre, where the assault on our senses began with a disconcerting background hum that continued until the curtain rose.  Whereupon ensued two hours of blinding flashes of light, lots of crashing sounds, plenty of blood, and some pretty cool dental torture.  We did not vomit, faint or flee.  And we liked the show more than we expected to, though we typically lean toward “happy” – the lauded and wonderful but lamentably short-lived recent revival of Finian’s Rainbow at Lincoln Center was right up our alley.

We thought about 1984 as we read today’s case. We are old enough to remember when a defendant had to hire a private investigator to play “Big Brother” and tease out deception in a plaintiff’s account of her limitations following an injury.  Nowadays, so-called “social media” have stepped in, in large measure, to fill those shoes, and discovery requests now commonly seek production of and access to those resources.

In In re: Cook Med., Inc., IVC Filters Mktg., Sales Practices & Prod. Liab. Litig., 2017 U.S. Dist. LEXIS 149915 (S.D. Ind. Sept. 15, 2017), the court addressed several discovery motions in a bellwether case approaching trial.  First, as a sanction for the plaintiff’s failure to produce a privilege log, the defendants sought an order holding that the plaintiff had waived all privilege objections.  The court denied the motion, finding that “a blanket waiver is not an appropriate sanction when the party seeking protection makes a good faith showing that the requested material is privileged.”  2017 U.S. Dist. LEXIS 149915 at *3.

Second, the defendants sought to compel responses to discovery requests to which the plaintiff had objected as overbroad because the defendants had defined “you” to include the plaintiff, her attorneys, and her representatives. The court said that this “fail[ed] to move” it because (we love this) “half of the interrogatories and responses in question do not even contain the word ‘you.’” Id. at *4.  Motion granted.

Third, the court properly held that the plaintiff waived objections she had failed to assert in her discovery responses, although it declined to order the plaintiff to produce all requested materials (which included emails between the plaintiff and her attorneys) irrespective of claims of privilege.

Fourth, the court addressed the defendants’ motion to compel the plaintiff to produce her Facebook profile and various posts in native file format though she had already produced them in PDF. The court declined to order production of all of the requested materials in native format and held that the defendant would be required to make a showing of its need for the metadata in the native file of any particular post.

Finally, the court turned to the scope of the defendants’ social media requests, which, it noted, had occupied much of the space in the parties’ briefs. First, in their brief, the defendants sought to compel the plaintiff’s social media log-in credentials, including her passwords.  Noting that the defendants already possessed the plaintiff’s usernames, the court held that the original interrogatory did not expressly seek passwords; as such, it declined to “compel a response to an interrogatory that does not exist.” Id. at *10.  But it dropped a footnote emphasizing that it would not likely have compelled the plaintiff to disclose her passwords in any event because it “struggle[d] to see how such staggering access [to the plaintiff’s private accounts] would be proportional to the needs of the case.” Id. at *10 n.6. The court elaborated, “The requesting party does not have an unfettered right to rummage through the responding party’s social media,” without a showing of relevance and appropriate limits on content and time period. Id. at *11.

To wit, the defendants next moved to compel the plaintiff’s private social media data related to her travel, social activities, medical conditions, and alleged damages. Noting that, because the plaintiff claimed loss of enjoyment of her life, depression, and continuing medical issues, the defendants would have been entitled to compel a response to interrogatories seeking the same information, the court granted the defendants’ motion.

Finally, the court declined the defendants’ request for screenshots of all of the plaintiff’s social media webpages from the date of her implantation with the defendants’ device to the present date, holding that the request was doomed by the lack of a content limitation. The court explained, “If the motion were granted, Plaintiff would have to turn over a screen shot of every private message she sent to anyone on any topic simply because she sent it after implantation.” Id. at *13.

In the end, an attenuated cautionary tale for anyone planning to sue anyone: while a court may not hand the opponent the figurative keys to your entire online life, postings that can be tied to your claims will find their way into your opponents’ hands, whether you posted them “privately” or not.

By the way, we just got tickets for the upcoming revival of Carousel, starring Jessie Mueller, whom we loved in Beautiful and Waitress. There will be no bloody tooth-pulling, and there will definitely be a show-stopping rendition of “You’ll Never Walk Alone.”  We can’t wait.

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)).

Continue Reading Rules Amendments Mean That Proportionality Limits Even MDL Discovery

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.

Continue Reading 2016 Updates to Ediscovery for Defendants 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 post. Since we’re hardly the source of all useful information, we’d like to pass along a handy 4-page checklist for the admissibility of electronic evidence. It covers evidence in the form of: e-mail, internet website posts; text messages/tweets; computer stored information; animations and simulations; and digital photos. It has the following headings:

  1. Preliminary Rulings on Admissibility
  2. Is the Evidence Relevant?
  3. If Relevant, Is It Authentic?
  4. Is Evidence Hearsay?
  5. Original Writing Rule
  6. Practice Tips

It’s what it purports to be – a checklist – it doesn’t provide case law, but it’s the kind of thing that lends itself to use in trial, rather than pretrial, situations.

This nifty guide was prepared jointly by Hon. Paul W. Grimm and Kevin F. Brady of Redgrave LLP, so give credit where credit is due. We’ve been in touch with both of them, and they have graciously allowed us to disseminate their work.

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.

Continue Reading Discovery − Oppenheimer’s Half Life Has Long Been Exceeded

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.

Continue Reading Courts Have Nothing But Good Things To Say About Predictive Coding

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.

Continue Reading The Shape of (Discovery) Things To Come?

This post strays from our usual posts in a few respects.  First, it is about a Florida state intermediate appellate court opinion in a slip and fall case.  You will not find us posting on many of those.  Second, while we do post on discovery issues, it is usually about the scope of discovery that can be pursued against drug and device manufacturers.  This is about discovery on the plaintiff, which is less common (but not unique).  Third, and most significantly, this is about social media, specifically something called “Facebook.”  We understand that many, many people who are young, social or both—we (in the singular form of that pronoun sometimes utilized in our posts) are neither—spend quite a bit of time with their Facebooking.  Indeed, this Facebook thing is so popular that it has taken on several verb forms.  Based on our research, but not personal experience, many spend large parts of their waking time updating their “friends” (as the term is used broadly) on details of their life, reviewing posts/updates from others, and adding value to society by “liking” or commenting on what others have posted.  Sometimes, these Facebookers post photographs of themselves doing all sorts of things, including things that rational people might not memorialize through digital photography, let alone share with others through a medium where everything pretty much lasts forever.  Some of these photo-posting Facebookerists happen to be plaintiffs in civil litigation.  Hence, this post.

Continue Reading A Day In The Real Life Of A Facebooking Plaintiff

On December 18, the FDA published its proposed rule for replacing the venerable package insert with “electronic” prescribing information. The cite is 79 Fed. Reg. 75506, and a link to it is here. We’re not regulatory lawyers, so we’ll leave any debate over whether this proposed rule is good or bad to the folks at the FDA Law Blog.

We’re product liability litigators, so when we hear about “electronic” anything, one thing we think about is ediscovery.  Currently, with paper package inserts, when we’re taking discovery, all we have is the prescriber’s say so about whether s/he reviewed the insert, and when.  Nor do we have any sure way of knowing exactly what version of drug/device labeling the prescriber reviewed.  The date of the visit that produced the prescription, when placed against the history of the relevant labeling provides a pretty good idea, but there’s always a chance that the product sat on a shelf somewhere through a label change or two.

If the FDA’s proposal to shift to electronic distribution of the prescribing information that’s now in package inserts takes effect all that could change.  The main avenue of distribution envisioned by the FDA would be a “single, comprehensive Web site” −  an online “repository” operated by the FDA itself:

The proposed rule would require manufacturers and applicants to distribute electronically prescribing information by submitting the labeling in an electronic format that FDA can process, review, and archive . . . to FDA each time the labeling content is changed.  The submitted labeling would be distributed via FDA’s labeling repository Web site (labels.fda.gov), which is a publicly available Web site.

Continue Reading Has the FDA Created Another Ediscovery Front?

Walking out of the Constitutional Convention on its final day, back in 1789, Benjamin Franklin was (supposedly) asked what kind of government he had helped create for the new entity to be known as the “United States of America.”  He replied, “A republic – if you can keep it.”

We find ourselves with a similar feeling regarding the amendments to the federal discovery rules that we’ve blogged about previously.  Whatever else anyone, on either side of the “v.,” might think of last month’s election result, the Republican capture of the Senate ended the last realistic prospect of derailing those amendments – which have passed every level of the judicial committee structure unanimously and now rest with the Supreme Court.  Among other things, these amendments enshrine the requirement that discovery be “proportional to the needs of the case” squarely in Rule 26(b)(1)’s definition of the scope of discovery, intentionally emphasizing a concept previously buried deep within Rule 26.  They should be in effect by December, 2015.

The other side hates it.  They lost, badly, on these amendments, but don’t expect them to give up.  Defense counsel need to anticipate where plaintiffs will try to go next – which is to try to make the proportionality requirement so costly and impractical that everyone, judges and defendants both, gives up on proportionality as a meaningful restriction on discovery.  That approach would be a direct violation of the intent of both the purposes of the proportionality requirement itself and of Rule 1 (which is also being amended), but are you really surprised by that?

Continue Reading Proportionality – If You Can Keep It