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In re Yasmin and Yaz Marketing

September 22, 2010

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION


The opinion of the court was delivered by: David R Herndon Chief Judge United States District Court

This Document Relates to: ALL CASES

MDL No. 2100

ORDER

INTRODUCTION AND BACKGROUND

On February 18, 2010, this Court entered Case Management Order Number 10 ("CMO 10") (3:09-cv-2100 Doc. 672), governing the redaction of documents and claims of privilege. This Case Management Order, was the result of extensive arm's length negotiations among highly experienced and informed counsel on both sides. The terms contained in CMO 10 were voluntarily agreed to and drafted by the parties. Pursuant to CMO 10, Defendants are permitted to "redact from produced documents, materials or other things, or portions thereof, the following items:"

Those portions of documents that contain information relating to Bayer's non-Drospirenone-containing medicines or products. With respect to Drospirenone-containing medicines other than YAZ/Yasmin/Ocella, Defendants may redact those portions of any material that relates to any business strategy, marketing, or sales or that otherwise does not contain safety, adverse event, efficacy, or scientific study information[.]

(3:09-cv-2100 Doc. 672 ¶ A(5)). Since the entry of CMO 10, the Bayer Defendants have produced approximately 1.3 million documents consisting of approximately 33 million pages. Over the course of that production, the Bayer Defendants have been redacting documents as permitted under CMO 10. Plaintiffs contend that of the 1.3 million documents produced, approximately 14% have been redacted based on the provisions agreed to by the parties in ¶ A(5) (3:09-cv-2100 Doc. 1273 p. 2 n. 1).

Plaintiffs now bring this motion to modify CMO 10, pursuant to Rule 22.6 of the Manual for Complex Litigation. Specifically, Plaintiffs seek to amend CMO 10, paragraph 5(A) so that "(1) Defendants are prohibited from redacting business strategy, marketing, or sales information regarding Defendants' other Drospirenone ("DRSP")-containing medicines other than YAZ/Yasmin/Ocella; (2) Defendants are prohibited from redacting business strategy, marketing and sales information pertaining to Bayer's hormonal contraceptives; (3) Defendants are required to un-redact any and all documents that have redacted thus far on these grounds." (3:09-cv-2100 Doc. 1272).

Fortunately, the parties have worked together on issues throughout this litigation and consistently meet and confer thoroughly before bringing a dispute to the Court. The parties' efforts to resolve the present dispute are no exception; both parties met and conferred on these issues in an effort to resolve the dispute. Although the Court encourages and appreciates such efforts, the parties also have a responsibility to bring disputes to the Court's attention in a timely manner to avoid unnecessarily compounding the problem. Regrettably, in this instance, 33 million pages were produced before the matter was brought to the Court's attention and as a result the issue of burden, argued extensively by the Defendants, has grown.

ANALYSIS

A. Scope of Discovery

The federal discovery rules are liberal in order to assist in the preparation for trial and settlement of litigated disputes. See Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir.2009). Pursuant to Federal Rule of Civil Procedure 26(b)(1), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

B. Modification of Case Management Orders

The Manual for Complex Litigation, published by the Federal Judicial Center, is a primary reference text in this litigation. Pursuant to Rule 22.6 the Court has the authority to update, and modify case management orders as the litigation unfolds. The Court also notes, however, that case management orders are designed to facilitate the complex litigation process and are a vital tool in managing the discovery process. Thus, the Court does not take requests to modify case management orders ...


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