IN RE PRADAXA PRODUCTS LIABILITY LITIGATION. This Document Relates to All Cases
CASE MANAGEMENT ORDER NUMBER 51 Regarding Defendants Motion to Compel (Doc. 341)
DAVID R. HERNDON, Chief District Judge.
This matter is before the Court on the defendants' motion, pursuant to Federal Rule of Civil Procedure 37(a), to compel responses to the defendants first set of document requests relating to all plaintiffs (Doc. 341). The discovery requests are directed to "any and all plaintiffs" in the Pradaxa MDL (Doc. 341-11 p. 1 ¶ 1) and relate to the following four categories of documents:
1. All Documents relating to Pradaxa that You have transmitted to, or received from, any governmental entity or agency, including in connection with any FOIA request.
2. All previously unproduced medical records relating to Pradaxa and/or relating to patients who were treated with Pradaxa that relate to the claims and defenses in the above-captioned matter.
3. All previously unproduced Documents relating to Pradaxa that you have obtained from a source other than Defendants and that You intend to use at any deposition, trial, or other proceeding in the above-captioned matter.
4. All previously unproduced Documents relating to Defendants that you have obtained from a source other than Defendants and that You intend to use at any deposition, trial, or other proceeding in the above-captioned matter.
(Doc. 341-11 pp. 5-6). With regard to the above requests, the defendants cite to the following three specific examples in their briefing:
1. Un-redacted FDA Memo: When the FDA publicly posted its Summary Review Memo in connection with its approval of Pradaxa, it redacted specific information from that posting. During certain employee depositions, the plaintiffs have produced an un-redacted page from that memo and have examined witnesses regarding the same. The plaintiffs assert that the un-redacted copy was obtained through a Freedom of Information Act request they presented to the FDA.
2. Death Certificate for Kenneth Barndt: Kenneth Barndt was a participant in the RE-LY trial who is now deceased. The plaintiffs have utilized Mr. Barndt's death certificate in certain employee depositions. Mr. Barndt's family is represented by counsel but no claims have been filed on behalf of Mr. Barndt or his family.
3. A Medical Record for Kenneth Barndt: The plaintiffs have used a single medical record of Mr. Barndt's as an exhibit during the depositions of certain employee witnesses.
The defendants contend the plaintiffs "seek to have it both ways" by "demand[ing] every document from Defendants and obtain[ing] harsh sanctions when those documents are not quickly produced" while "seek[ing] to withhold relevant non-public documents in their possession, custody, and control" (Doc. 341-1 p. 1).
The plaintiffs assert the following: (1) the discovery requests are not directed at the plaintiffs in this litigation but at the lawyers representing those plaintiffs; (2) the defendants' requests are contrary to previously entered agreed-upon discovery and production case management orders; (3) to the extent that the defendants seek production from non-parties, the requests are impermissible; (4) certain requested documents are not (and have never been) in the custody, possession or control of any plaintiff but rather are documents that have been obtained by counsel through FOIA; and (5) documents obtained through ...