Opinion
CASE NO. 3:18cv00211RLM-MGG
11-15-2019
ANNETTE WILLIAMS, Plaintiff, v. BIOMET, INC., et al. Defendants
This Document Relates To: Case No. 3:12-MD-2391RLM-MGG
MEMORANDUM AND ORDER
Annette Williams sued Biomet in the District of Utah, pursuing state law tort, contract, and consumer law claims after she underwent revision surgery due to problems with her M2a hip implant. The Judicial Panel on Multidistrict Litigation transferred her case to this court's Biomet MDL docket, MDL-2391. [Doc. No. 7]. Ms. Williams has moved to compel Biomet to respond to 36 interrogatories and requests for admissions to which Biomet has objected. I heard argument on the motion to compel (and for sanctions) on August 22.
The parties seem to agree on what has happened procedurally. Ms. Williams provided Biomet with her Plaintiff Fact Sheet in May 2018. Case-specific discovery for the group that includes this case opened in November 2018. The parties deposed the implanting surgeon in February 2019, and Ms. Williams served her interrogatories and requests for production on Biomet in March. In April, Biomet served on Ms. Williams the Defendant Fact Sheet (the Case Management Order called for service in September 2018), a complaint file containing any documents in Biomet's custody related to Ms. Williams or her surgery (manufacturing records for Ms. Williams' device; Biomet's risk management analysis; and Biomet's complaint handling and adverse event reporting to the FDA regarding Ms. Williams's surgeries), notice that Biomet didn't have a relationship with Ms. Williams's surgeon (which would have required production of a surgeon file), and responses.
In May, the parties chose dates for depositions of Ms. Williams, the sales representative, and Ms. Williams's revising surgeon. Ms. Williams refused to go forward with the pending depositions due to the discovery dispute. She filed her motion to compel in June, after meet-and-confer efforts collapsed. Case-specific discovery in this case's group closed in July.
Unless otherwise limited by court order . . . [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.Fed. R. Civ. P. 26(b)(1). A party may move to compel discovery if the opposing party "fails to answer an interrogatory submitted under Rule 33[,] . . . fails to produce documents . . . as requested under Rule 34[,]" or provides an evasive or incomplete answer or response. Fed. R. Civ. P. 37(a)(3)-(4).
"The burden rests upon the objecting party to show why a particular discovery request is improper," Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) citing Rubin v. Islamic Republic of Iran, 349 F.Supp.2d 1108, 1111 (N.D. Ill. 2004)), and that showing must be made with specificity. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey's General Stores, 206 F.R.D. 251, 254 (S.D. Ind. 2002)). A court deciding whether to limit discovery should "consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering the truthseeking function in the particular case before the court." Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (quoting Rowlin v. Alabama, 200 F.R.D. 459, 461 (M.D. Ala. 2001)) (internal quotation marks omitted).
A.
Ms. Williams moves to compel responses to interrogatories to which she believes Biomet made boilerplate objections, which the rules don't allow. Biomet has withdrawn the objections that Biomet described as "general" and the plaintiff called "boilerplate." The objections appeared to lean toward the boilerplate side of the spectrum: they set forth general grounds upon which Biomet contended the material sought wasn't discoverable, but didn't explain just how the objection applied to the information sought. But Biomet's response to the motion to compel laid its reasoning out well, and when one looks back at the "general" objection, the objection is perfectly clear: Biomet argues that it already has produced the requested information, either to the plaintiffs' steering committee or to Rocket Trak, a third party vendor from which Ms. Williams can obtain the information under the same terms that would apply to Biomet. That doesn't mean the objections are sufficient, but they aren't impermissible boilerplate responses.
Biomet's response to the motion to compel says that it withdraws its general objections, "with the exception of No.5, which preserves privilege[.]" Biomet used the same language in General Objection No. 5 in its objections and responses to both the interrogatories and requests for production: Biomet objected "to the extent that they seek information or documents that are subject to attorney-client privilege, work-product doctrine or other protections." This objection is a blanket, general objection that lacks the specificity required for assertion of a privilege in discovery. See Yessenow v. Hudson, 270 F.R.D. 422, 427 (N.D. Ind. 2010) (citing Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). To the extent Biomet has asserted a privilege objection to any of the interrogatories or requests for production, it provides no basis for refusal to produce the information. But since Biomet doesn't appear to have withheld any information or documents on the strength of its privilege assertion, the court denies the motion to compel insofar as it is based on the inadequacy of that objection.
B.
This MDL docket has been operative since 2012. Hundreds of cases already have been remanded or transferred to other courts for trial, with all parties and courts understanding that most case-specific, and all non-case-specific discovery (also described as "general" and "generic" in past orders), has been completed in the MDL court.
For the most part, Biomet has satisfied its discovery obligations in two ways. First, Biomet produced millions of documents and custodian-deponents early in the docket's life. Most of those, as I understand it, related to the development and manufacture of, the dissemination of information about, and negative information known to Biomet relating to, the Biomet devices at issue in this docket.
Second, with respect to each plaintiff whose case entered this docket, Biomet produced to the Plaintiffs' Steering Committee a plaintiff-specific "Defendant's Fact Sheet" and a plaintiff-specific complaint file. I don't understand Ms. Williams to claim that Biomet didn't produce her fact sheet and complaint file to the steering committee. Biomet reports that it arranges for each plaintiff's full medical records to be kept by a third-party vendor named Record Trak, which in turn makes the records available to plaintiffs on the same terms the records are available to Biomet.
Several of Ms. Williams's interrogatories and document requests seek information contained in the medical records kept by the third-party vendor. Other interrogatories and requests seek information that is included in the information turned over to the Plaintiff's Steering Committee. Biomet responded to some of those interrogatories and requests by specifically directing Ms. Williams to the Plaintiffs' Steering Committee and the third-party vendor. Ms. Williams contends that isn't good enough, that Biomet must produce the requested information and documents to her counsel rather than simply point her to a bucket full of discovery.
Ms. Williams might be right if this case wasn't part of a multi-district litigation docket. The Judicial Panel on Multidistrict Litigation created this MDL docket because it would "promote the just and efficient conduct of" the constituent cases. See 28 U.S.C. § 1407(a). Among the ways in which an MDL docket can further that statutory goal is by reducing the need for each individual plaintiff to retain expert witnesses, by reducing the need for expert witnesses and corporate officers to give depositions in each of hundreds or thousands of cases, and by reducing the burden of discovery on a defendant facing thousands of claims.
Court orders, including a transferee court's case management orders, can limit the scope of discovery. Fed. R. Civ. P. 26(b)(1). Biomet produced hundreds of thousands of documents in electronic form to Record Trak for the Plaintiffs' Steering Committee, which serves as a stand-in for each plaintiff for purposes of receipt of discovery materials. The files are readily searchable. Ms. Williams says she shouldn't have to conduct that search (which carries a cost as well as a risk that her search would miss documents pertinent to her case) because the rules of procedure place that burden on Biomet. If she's right, a defendant in a mass tort MDL would have to search through the same electronic files thousands of times to narrow the pile of files down to those relating to a given plaintiff. Or Ms. Williams must conduct the search, but only once. Ms. Williams's argument would defeat one of the main efficiencies of the MDL process.
Biomet has already produced the general documents and information that Ms. Williams wants. Principles of proportionality favor each plaintiff conducting a single, more specific search, as opposed to Biomet conducting hundreds or thousands of more specific searches. The analysis might differ if the materials weren't readily searchable, but I don't understand Ms. Williams to disagree as to whether she could conduct a search of the electronic files. I will deny Ms. Williams's motion to compel to the extent she asks that Biomet be ordered to identify responsive material that it already produced to the steering committee, either directly or through third-party vendor Record Trak.
C.
The non-case-specific discovery period closed in December 2015. Everyone agrees that Ms. Williams could seek discovery specific to her case, and can conduct much of that discovery while the case is housed in this MDL docket. Biomet objected to some of Ms. Williams's interrogatories and requests for production on the ground that they seek information not specific to Ms. Williams's claims, and I agree with Biomet as to those objections.
Biomet objected to interrogatories 2, 3, 4, 5, 6, 12, 21 and 22 as premature and calling for legal conclusions. I can't identify any demand for legal conclusions that would make any of these interrogatories improper. The prematurity argument seems to be based on the proposition that Biomet must complete its own discovery before it can respond to Ms. Williams's discovery requests. Biomet's position has no basis in the law, see, e.g., Remy, Inc. v. Tecnomatic, S.P.A., No. 1:11-cv-00991-SEB, 2013 WL 118334, at *1 (S.D. Ind. Mar. 21, 2013), and some of the interrogatories illustrate why this must be so. For example, Interrogatory 21 asks Biomet to state in detail the factual basis for its affirmative defenses. Biomet raised 43 affirmative defenses, including res judicata and state-of-the-art. Given the requirements of Rule 11, Biomet must be aware of some factual basis for those assertions; that it might learn more as the case goes on is no reason not to disclose what it knows now.
For these reasons, I grant the motion to compel insofar as it is directed to what Biomet views as premature discovery. Ms. Williams asks for an award of sanctions for Biomet's unsupported opposition and, if those objections are viewed independently from everything else involved in the motion to compel, her position is strong. But the motion to compel also encompasses Ms. Williams's position that Biomet must re-acquire discovery materials it already turned over to a third-party vendor for the benefit of all plaintiffs, and bundle it up again specifically for her. To the extent it matters, most of the relief requested in this motion to compel relates to that position. These circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii).
Based on this reasoning, I GRANT IN PART and DENY IN PART the motion to compel [doc. 56] and DENY the request for sanctions. Specific rulings are attached as an exhibit to this order.
SO ORDERED this 15th day of November 2019
/s/ Robert L. Miller, Jr.
Judge, United States District Court
| Plaintiff DiscoveryRequest | Biomet Objection | Ruling on Motion toCompel | |
| Int 2 | Do you contend thatPlaintiff's OrthopedicTreating Physician(s)failed to follow anywarnings you providedin connection with theBiomet Hip System(identified in thedefinition of BIOMETHIP SYSTEM 7(a)-(g)above)? | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted |
| Int 3 | Do you contend thatPlaintiff's OrthopedicTreating Physician(s)was negligent inadvising Plaintiff aboutthe risk of the BiometHip System? If so,please identify the dateof the negligent act andthe basis forDefendants' belief thatthere was negligence. | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted |
| Int 4 | If your answer to theprevious Interrogatoryis in the affirmative,state what Plaintiff'sOrthopedic TreatingPhysician(s) should | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted |
| have told Plaintiffregarding the risks ofthe Biomet Hip System,including the date(s)when these discussionsshould have occurred. | |||
| Int 5 | Do you contend thatPlaintiff's OrthopedicTreating Physician(s)was negligent inimplanting the BiometHip System intoPlaintiff? If so, pleaseidentify the date of thenegligent act and thebasis for Biomet's beliefthat there wasnegligence. | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted |
| Int 7 | Do you contend Plaintiffwas not a suitablecandidate for receivingthe Biomet Hip System? | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted |
| Int 8 | For each component ofPlaintiff's Biomet HipSystem identified byPlaintiff in response toSection II of the PlaintiffFact Sheet (hereinafter"PFS") submitted byPlaintiff, please providethe following:(a) The date(s) on whichPlaintiff's Device andany components theretowere manufactured(including date for eachDevice or componentidentified);(b) Identify the facility(s)at which Plaintiff'sDevice and anycomponents theretowere manufactured(indicatinglocation/address for | Cumulative,duplicative | Motion to compeldenied. Informationsought isduplicative |
| each Device orcomponent identified);(c) Identify the date ofshipment of Plaintiff'sDevice from you;(d) Identify the entitythat delivered Plaintiff'sDevice from you to thePurchaser;(e) Identify the completechain of custody, allparties, of the devicefrom you to thehealthcare provider;(f) Identify by name andaddress the person orentity to whom theDevice was sold;(g) Produce the DeviceHistory Record for theDevice that wasimplanted in plaintiff. | |||
| Int 9 | For each component ofPlaintiff's Biomet HipSystem identified byPlaintiff as having beenimplanted, pleaseprovide the following:(a) Produce a copy ofthe complaint file(s),including medicalrecords, if any, for thePlaintiff;(b) Provide thecomplaint filenumber(s) that wouldpermit Plaintiff toidentify his complaintfile, if any, in thegeneral documentproduction. | Cumulative,duplicativeBut Plaintiff'scomplaint filenumber is 0380992. | Motion to compeldenied. Apart fromcase file numberprovided,information soughtis duplicative |
| Int 10 | Provide the name andbusiness address of thesales representativecompany that received | "Sales representativecompany" is vagueand ambiguous.Cumulative, | Motion to compeldenied. Informationsought isduplicative. |
| the Biomet Hip Systemfrom You that wasimplanted in Plaintiff. | duplicative | ||
| Int 11 | Provide the name andbusiness address of thesales representative(s)present at the surgicalfacility at the timePlaintiff's Biomet HipSystem (or anycomponent part) wasimplanted and at thetime Plaintiff's BiometHip System (or anycomponent part) wasexplanted. | Cumulative,duplicative. | Motion to compeldenied. Informationsought isduplicative. |
| Int 12 | [Do] Defendantscontend that any partyor non-party caused orcontributed to causePlaintiff's claimedinjuries in this matter?If so, please state thefollowing:(a) The identifies ofeach such party or non-party;(b) The nature of anysuch action or omissionof each such party ornon-party that causedor contributed to causethe damages alleged inPlaintiff's Petition; and(c) The date of eachsuch act or occurrence. | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted. |
| Int 13 | For each "Dear Doctor"or "Dear Health CareProvider" letter that youcontend was sent toPlaintiff's Physician(s),please:(a) Identify the lettersent;(b) State the date that | Cumulative,duplicative. | Motion to compeldenied. Informationsought isduplicative. |
| each letter was sent toPlaintiff's Health CareProvider;(c) State the person towhom each letter wassent;(d) State the addresswhere it was sent; and(e) Identify the databaseor documents thatdemonstrate thesefacts. | |||
| Int 14 | Please state whetherPlaintiff's Physician(s)were ever invited toattend and/or did infact attend anyDefendants' sponsoredconferences or events. Ifyou answer is "yes,"please state thefollowing:(a) The identity of thehealth care providerattendee;(b) The title, locationand date of theconference or eventattended;(c) The specific topic ofthe conference or event;(d) All speakers at theconference or eventattended by the healthcare provider; and(e) Please state theagenda for theconference or program. | OverbroadNot reasonablylimited in scope ortime frame.Seeks informationabout otherproducts.More convenient andless burdensome toobtain Plaintiff'smedical providers.But Biomet willconduct areasonable searchand produceresponsivedocuments. | Motion to compeloverruled in light ofpromise of search. |
| Int 15 | Has Plaintiff'sPhysician(s) evercontacted you torequest informationconcerning the BiometHip System, itsindications, its benefits | OverbroadNot reasonablylimited in scope ortime frame.Seeks informationabout otherproducts. | Motion to compeloverruled in light ofconducting asearch. |
| and/or its risks? If youanswer is "yes," pleaseprovide the followinginformation:(a) The identity of thehealth care provider;(b) The date(s) you werecontacted;(c) The method ofcontact (i.e. telephone,e-mail, correspondence,etc.);(d) Identify theperson(s) thatresponded to the healthcare provider's inquiry,including their name,address, telephonenumber, whethercurrently employed byDefendants, job titleand dates ofemployment; and(e) State the sum andsubstance of theinquiry and theresponse. | But Biometconducted areasonable searchand found nothing. | ||
| Int 16 | Have you beencontacted by Plaintiff,any of his physicians,or anyone on behalf ofPlaintiff concerningPlaintiff, other thanPlaintiff's counsel? Ifyour answer is "yes,"please provide thefollowing:(a) State the name ofthe person(s) whocontacted you;(b) State the person(s)who were contactedincluding their name,address and telephonenumber; and | OverbroadNot reasonablylimited in scope ortime frame.Seeks informationabout otherproducts.More convenient andless burdensome toobtain Plaintiff'smedical providers.But Biometconducted areasonable searchand found nothingnot alreadyproduced. | Motion to compeldenied in light ofsearch alreadyconducted. |
| (c) State the sum andsubstance of thecommunications. | |||
| Int 17 | Do any MedWatchform(s) refer or relate toPlaintiff? If your answeris "yes," please providethe following:(a) State the name ofthe person(s) whocreated the form,including their name,address,telephone number andjob title if employed byDefendants;(b) State the date theform(s) was completed;and(c) State the sum andsubstance of theinformation containedin the form(s). | Cumulative,duplicative. | Motion to compeldenied. Informationsought isduplicative. |
| Int 18 | For any and allMedWatch form(s)identified in theprevious Interrogatory,did you create anyback-up documentationand/or conduct anyevaluations concerningPlaintiff? If your answeris "yes," please providethe following:(a) State the name ofthe person(s) whocreated the back-updocumentation and/orconducted theevaluations, includingtheir name, address,telephone number andjob title if employed byDefendants;(b) State the date the | Cumulative,duplicative. | Motion to compeldenied. Informationsought isduplicative. |
| back-up documentationwas created and/orevaluations wereconducted; and(c) State the sum andsubstance of theinformation containedin the back-updocumentation and/orresults of theevaluations. | |||
| Int 20 | Identify and state indetail the substance ofall information obtainedby the Defendantsregarding Plaintiffand/or any member ofPlaintiff's immediatefamily including, butnot limited to thefollowing:(a) All medical records,laboratory results, anymedical evidence inDefendants' possessionrelating to the Plaintiff;(b) Any surveillancedocuments, data,videotapes orinformation;(c) Any informationrelating to Plaintiff'semployment or theemployment of hisspouse or immediatefamily;(d) Statements,interviews, discussionsor communicationswith Plaintiff, Plaintiff'sfamily, Plaintiff'semployers or workcolleagues or any ofPlaintiff's friends;(e) Statements, | Vague andambiguous.Equally accessible toplaintiff as to Biometthrough RecordTrak. | Motion to compeldenied. Informationequally available toplaintiff. |
| interviews, discussionsor communicationswith Plaintiff'sPhysician(s) or anyattorney representingPlaintiff's treatingPhysician(s). | |||
| Int 21 | Identify everyaffirmative defense thatDefendants areasserting in thisspecific case, and statein detail the factualbasis for asserting thedefense. | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted. |
| Int 22 | Identify any potentialparties to this lawsuitand state in detail thefactual basis for yourbelief that this entity isan appropriate party. | Premature; calls fora legal conclusion.Will supplement. | Motion to compelgranted. |
| RFP 3 | Produce a copy of allwritten documents andmaterials provided byBiomet to PLAINTIFF'streating orthopedicphysician. | Overly broad,unduly burdensome,and not reasonablylimited in scope ortime frame.Seeks documentsabout otherproducts.Cumulative andduplicative. | Motion to compeldenied. Informationsought is, to theextent it relates toMs. Williams andher device,duplicative. |
| RFP 4 | Produce all writtendocuments andmaterials Biomet, salesrepresentatives, or salescompanies provided toPLAINTIFF'S orthopedicsurgeon concerning theBIOMET HIP SYSTEM. | Overly broad,unduly burdensome,and not reasonablylimited in scope ortime frame.Seeks documentsabout otherproducts.Seeks documentsnot in Biomet'spossession.Cumulative andduplicative. | Motion to compeldenied. Informationsought is, to theextent it relates toMs. Williams andher device,duplicative. |
| RFP 5 | Produce each "DearDoctor" or "Dear HealthCare Provider" letterthat you contend wassent to Plaintiff's HealthCare Provider(s). Inaddition, produce thedatabase or documentsthat demonstrate thatthe letter(s) were sent. | Cumulative,duplicative. | Motion to compeldenied. Informationsought isduplicative. |
| RFP 6 | Produce any and alldocuments relating towhether PLAINTIFF'SOrthopedic Health CareProvider(s) were everinvited to attend and/ordid in fact attend anyDefendants' sponsoredconferences or events;the title; location anddate of the conferencesor events attended; thetopic of the conferencesor events; all speakersat the conference orevents; and theagenda/brochure forthe conference orevents. | OverbroadNot reasonablylimited in scope ortime frame.Seeks informationabout otherproducts.More convenient andless burdensome toobtain Plaintiff'smedical providers.But Biomet willconduct areasonable searchand produceresponsivedocuments.Corresponds toInterrogatory 14. | Motion to compeloverruled in light ofpromise of search. |
|---|---|---|---|
| RFP 7 | Produce any and alldocuments related towhether PLAINTIFF'SPhysician(s) evercontacted YOU torequest informationconcerning the BIOMETHIP SYSTEM, itsindications, its effectsand/or its risks. | OverbroadNot reasonablylimited in scope ortime frame.Seeks informationabout otherproducts.More convenient andless burdensome toobtain Plaintiff'smedical providers.But Biomet willconduct areasonable search | Motion to compeloverruled in light ofpromise of search. |
| and produceresponsivedocuments.Corresponds toInterrogatory 15. | |||
|---|---|---|---|
| RFP 8 | Produce a copy of anyMedWatch form thatrefers or relates toPLAINTIFF, includingbackup documentationconcerning PLAINTIFFand any evaluationYOU did concerning thePLAINTIFF. | Cumulative,duplicative. | Motion to compeloverruled.Information soughtis duplicative. |
| RFP 12 | For each component ofPLAINTIFF'S BIOMETHIP SYSTEM identifiedin Interrogatory No. 8,produce a copy of thecomplaint file(s) for thePLAINTIFF. For eachcomponent of thePLAINTIFF'S BIOMETHIP SYSTEM, providethe Device HistoryRecord. | Cumulative,duplicative. | Motion to compeloverruled.Information soughtis duplicative. |
| RFP 13 | Produce all documentscontaining informationobtained by theDefendants regardingPLAINTIFF and/or anymember of PLAINTIFF'Simmediate familyincluding, but notlimited to the following:(a) All medical records,laboratory results,information or anymedical evidence inDefendants' possessionrelating to thePLAINTIFF;(b) Any surveillancedocuments, data,videotapes or | Vague andambiguous.Equally accessible toplaintiff as to Biometthrough RecordTrak.But Biomet has nodocumentsresponsive tosubparts b, c, d, e,g, and h. | Motion to compeldenied. Informationequally available toplaintiff. |
| information;(c) Any informationrelating to PLAINTIFF'semployment or theemployment of hisspouse or immediatefamily;(d) Statements,interviews, discussionsor communicationswith PLAINTIFF,PLAINTIFF'S family,PLAINTIFF'S employersor work colleagues orany of PLAINTIFF'Sfriends;(e) Statements,interviews, discussionsor communicationswith PLAINTIFF'SPhysician(s);(f) All writtendocuments that relateto, identify, and/ordiscuss PLAINTIFF;(g) All documentsrelating to thePLAINTIFF'S financialrecords in thepossession ofDefendants, theirexperts or agents;(h) All documentsobtained via socialmedia websites,including, but notlimited to, Facebook,Twitter, Instagram, anydating/match-makingwebsites, as well as anywebsite providing freeor paid backgroundchecks. | |||
| RFP 14 | Produce any documentreflecting any actual | Cumulative,duplicative. | Motion to compeldenied. Information |
| communicationbetween YOU andPLAINTIFF'SPhysician(s) concerningthe risks and benefitsassociated with theBIOMET HIP SYSTEM. | sought isduplicative. | ||
| RFP 16 | Produce any documentsent to or received fromany of PLAINTIFF'Sphysician(s). | Overly broad,unduly burdensome.Vague andambiguous.Not reasonablylimited in scope oftime frame andseeks documentsabout otherproducts.Seeks documents inpossession of others. | Motion to compeldenied. Request isoverbroad. |
| RFP 20 | Produce documentssufficient to identifyeach of your salesrepresentatives or thelike who sold theBIOMET HIP SYSTEMin PLAINTIFF'S homestate, including alsotheir sales territory andrelated dates ofpromotion. For eachsales representative,produce a copy of thefollowing: (a) theircustodial file; (b)personnel file; (c) callnotes/sheets; (d) IMSdata; (e) customernotes; (f) weekly salesnotes; (g) customerbelief notes; (h) trackingnotes; (i) postings onDefendant's messageboards; and/or (j) videofiles. | Overly broad,unduly burdensome.Vague andambiguous as to"custodial file," "callnotes/sheets," "IMSdata," "customernotes," "weekly salesnotes," "customerbelief notes,""tracking notes,""Defendant'smessage boards,"and "video files."Not reasonablylimited in scope ortime frame andseeks documentsabout otherproducts.Seeks documents inothers' possession.But other discoveryidentifies distributorrepresentative | Motion to compeldenied asduplicative to theextent it addressescase-specificinformation. |
| company and salesrepresentativeinvolved plaintiff'sdevice | |||
| RFP 21 | Produce documentssufficient to identify anythird-party salesrepresentatives or thelike (both naturalpersons and entities)who or which sold theBIOMET HIP SYSTEMin PLAINTIFF'S homestate, including alsotheir sales territory andrelated dates ofpromotion. For eachsales representative,produce a copy of thefollowing: (a) theircustodial file, (b)personnel file; (c) callnotes/sheets; (d) IMSdata; (e) customernotes; (f) weekly salesnotes; (g) customerbelief notes; (h) field orride-along reports; (i)surgical observationreports; (j) MedicalDevice Reports and/ormedical device reportsand/or (k) trackingnotes. | Overly broad,unduly burdensome.Vague andambiguous as to"custodial file," "callnotes/sheets," "IMSdata," "customernotes," "weekly salesnotes," "customerbelief notes,""tracking notes,""Defendant'smessage boards,"and "video files."Not reasonablylimited in scope ortime frame andseeks documentsabout otherproducts.Seeks documents inothers' possession.But other discoveryidentifies distributorrepresentativecompany and salesrepresentativeinvolved plaintiff'sdevice | Motion to compeldenied asduplicative to theextent it addressescase-specificinformation. |
| RFP 22 | Produce all documentsthat relate to or reflecttangible things or othermaterials ever providedby Defendant tophysicians orpharmacies to promotethe BIOMET HIPSYSTEM inPLAINTIFF'S homestate, including but not | Overly broad,unduly burdensome.Unreasonablydisproportionate.Not reasonablylimited in scope ortime frame andseeks documentsabout otherproducts.Cumulative, | Motion to compeldenied. Requestseeks non-casespecific informationand informationequally available toplaintiff at samecost as Biomet. |
| limited to notepads,calendars, officesupplies, meals,promotional materials,financial contributions,product descriptions,product literature,books regarding theBIOMET HIP SYSTEMand other suchpromotional materials. | duplicative.Biomet refersplaintiff tosearchable RecordTrak materials. | ||
| RFP 23 | Produce all documentsthat relate to or reflecttraining materials forthe training of salesrepresentatives,distributors or the likeemployed by Defendantor third parties inPLAINTIFF'S home stateto promote the BIOMETHIP SYSTEM, includingbut not limited toinstructions,memorandum,PowerPoints, emails,newsletters, films,scripts, questions andanswers, alerts, roleplays, videos, voice mailblasts, webcasts,pictures, scientific ormedical information orother materials orinformation. | Overly broad,unduly burdensome.Unreasonablydisproportionate.Not reasonablylimited in scope ortime frame andseeks documentsabout otherproducts.Cumulative,duplicative.Biomet refersplaintiff tosearchable RecordTrak materials. | Motion to compeldenied. Requestseeks non-casespecific informationand informationequally available toplaintiff at samecost as Biomet. |
| RFP 24 | All contracts with thirdparties in connectionwith failed and/orreturned BIOMET HIPSYSTEM fromPLAINTIFF'S medicalproviders for storage,research, examination,inspection and/ortesting. | Overly broad,unduly burdensome.Unreasonablydisproportionate.Not reasonablylimited in scope ortime frame andseeks documentsabout otherproducts. | Motion to compeldenied. Requestseeks non-casespecific informationand informationequally available toplaintiff at samecost as Biomet. |
| Cumulative,duplicative.Biomet refersplaintiff tosearchable RecordTrak materials. | |||
| RFP 27 | Produce all documentsthat relate to anyproposed or institutedcollection, retrieval orstorage by you (or anyone acting on yourbehalf) from PLAINTIFFphysicians, hospitals,sales representatives, ordevice suppliers of anyBIOMET HIP SYSTEMwhich had already beenimplanted inPLAINTIFF. | Vague andambiguous as to"proposed orinstituted collection,retrieval or storage."Seeks documents inthird parties'possession.Biomet refersplaintiff documentsalready produced,which include allresponsivedocuments. | Motion to compeldenied becauseBiomet hasproduced what ithas. |
| RFP 28 | Produce all documentsthat relate to anyproposed or institutedtests, analysis,evaluations orinvestigations orPLAINTIFF'S explantedor withdrawn BIOMETHIP SYSTEM whichwere returned to, orcollected by, you. | Vague andambiguous as to"proposed orinstituted tests,analysis, evaluationsor investigations."Biomet refersplaintiff documentsalready produced,which include allresponsivedocuments. | Motion to compeldenied becauseBiomet hasproduced what ithas. |