Opinion
MDL NO. 1407
April 2, 2004
ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE ORDER
THIS MATTER comes before the court on the motion of defendant Bayer Corporation for a protective order to stay discovery pending a ruling on the parties' motions to dismiss and to remand. The court has considered the parties' briefing and finds and rules as follows:
This court has the authority to grant protective relief under Fed.R.Civ.P. 26(c), which authorizes "any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that the disclosure or discovery not be had." The district court has broad discretion to control the course of discovery under this rule. See Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).
The defendant neglects to mention that Fed.R.Civ.P. 26(c) also requires that the party moving for the protective order submit certification "that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action." This the defendant has not done. In the absence of such certification, the court can only presume that defendant has not, in fact, attempted to resolve its dispute with the plaintiff without the court's intervention. The court's denial of the motion for a stay does not depend, however, on this procedural shortcoming, but on the reasons articulated above.
The instant case was transferred to this court and docketed as part of Multidistrict Litigation 1407, In re Phenylpropanolamine Products Liability Litigation, in January 2004. The case was initially filed, however, in January 2003 — over one year ago — and the motions to dismiss and to remand underlying Bayer's request for a stay were filed in the U.S. District Court for the District of Columbia in March and April of 2003, respectively. Under these circumstances, to add to the delay that plaintiff has already experienced would be both unfair and unnecessary. The court does not anticipate that a ruling on the motions to remand and to dismiss will be long in coming. Moreover, the discovery to which plaintiff at this point can only be presumed to be entitled may, upon such ruling, prove to be necessary after all. Given the balance of equities presented, therefore, the court hereby DENIES defendant's motion for protective order.