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In re Pradaxa Dabigatran Etexilate Products Liability Litigation

United States District Court, Seventh Circuit

January 23, 2014

IN RE PRADAXA DABIGATRAN ETEXILATE PRODUCTS LIABILITY LITIGATION This Document Relates to: ALL CASES

CASE MANAGEMENT ORDER NUMBER 53

DAVID R. HERNDON, Chief District Judge.

I. INTRODUCTION

This matter is before the Court on Boehringer Ingelheim International GmbH's ("BII") motion for a protective order barring the depositions of Dr. Andreas Barner, the Chairman of the Board of Managing Directors ("BMD") of BII, and Allan Hillgrove, a member of the BMD (Doc. 293). The Plaintiffs' Steering Committee ("PSC") filed a response in opposition (Doc. 307), a supplemental response in opposition (Doc. 337), and memorandum in support thereof (Doc. 338). Thereafter, BII filed a reply in support of its motion (Doc. 344).

According to BII, deposing Dr. Barner and Mr. Hillgrove will place a great burden on the officers themselves and on the corporation as a whole. BII asserts this is particularly true for Dr. Barner, who has ultimate responsibility for oversight of Boehringer Ingelheim's entire global organization. BII notes that both men sit on numerous boards within the corporation and are constantly travelling among Boehringer Ingelheim's various worldwide entities. Accordingly, preparing for and appearing at a deposition will take time away from these corporate responsibilities. Moreover, BII contends, the plaintiffs have deposed and will depose many other employees and executives who possess the same and greater knowledge about the facts underlying this litigation. Thus, BII argues, the information Dr. Barner and Mr. Hillgrove possess can be obtained from some other source that is more convenient, less burdensome, and less expensive.

II. APPLICABLE LAW

District courts have broad discretion in matters relating to discovery. Patterson v. Avery Dennison Corp ., 281 F.3d 676, 681 (7th Cir. 2002); Packman v. Chicago Tribune Co ., 267 F.3d 628, 646-47 (7th Cir. 2001); Rennie v. Dalton , 3 F.3d 1100, 1110 (7th Cir. 1993). Although there is a strong public policy in favor of disclosure of relevant materials, Rule 26(b)(2) of the Federal Rules of Civil Procedure empowers district courts to limit the scope of discovery if "the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed.R.Civ.P. 26(b)(2)(C).

A party may move for a protective order, which the court may grant "for good cause... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." Fed.R.Civ.P. 26(c). The burden is on the party seeking the protective order to demonstrate that good cause exists for the entry of the order by making a "particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard , 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).

There is no per se rule prohibiting the depositions of high-ranking corporate executives. However, deposing such witnesses can be "quite costly and burdensome." Patterson V. Avery Dennison Corp., 281 F.3d 676, 682 (7th Cir. 2002). Accordingly, courts recognize that under some circumstances it is appropriate to restrict efforts to depose senior executives. See Patterson v. Amery Dennison Corp ., 281 F.3d 676, 681-82 (7th Cir. 2002). Indeed, the undersigned judge has precluded such depositions in the past. See e.g., In re Yasmin and Yaz, 2011 WL 3759699 (Aug. 18, 2011) (Herndon, C.J.).

This, however, does not mean that high-ranking corporate executives are immune from depositional discovery. Rather, "[b]efore restricting discovery [under Rule 26], the court 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 , 281 F.3d at 681. (internal citation omitted). In conducting this analysis, courts often focus on whether the senior executive possesses unique, specialized, and/or personal knowledge relevant to the litigation. See e.g., Patterson v. Avery Dennison Corp., 281 F.3d 676, 681-82 (7th Cir. 2002) ; Thomas v. IBM, 48 F.3d 478, 483-84 (10th Cir. 1995); Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir.1989); Salter v. Upjohn Co ., 593 F.2d 649, 651 (5th Cir. 1979).

III. ANALYSIS

A. Dr. Andreas Barner

1. Background

The plaintiffs seek to depose Dr. Andreas Barner. Dr. Barner is the Chairman of the Board of Managing Directors of BII and is based in Germany (Doc. 293 p. 2). The Board of Managing Directors oversees Boehringer Ingelheim's global organization, which is comprised of BI's global corporate function in Ingelheim, Germany and its affiliates around the world, including Boehringer Ingelheim Pharmaceuticals International, Inc. ("BIPI") (Doc. 293 p. 2). According to BII, as Chairman of the BMD, Dr. Barner serves in a functionally equivalent role to a global CEO, making him the highest ranking officer in the entire organization (Doc. 293 p. 2).

Dr. Barner has been involved in Pradaxa-related issues. For example, Dr. Barner is Chair of the Pradaxa Steering Committee (Doc. 293 p. 3). However, BI contends his involvement has not been as extensive as that of the BI executives and employees whose sole or primary responsibilities are Pradaxa-related. Thus, according to BII, the many other executives and employees that have been and will be deposed in this litigation possess the same and greater knowledge about the facts underlying this litigation, and the plaintiffs will have more than ample ...


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