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In re Cook Medical, Inc. IVC Filters Marketing, Sales Practices and Products Liability Litigation

United States District Court, S.D. Indiana, Indianapolis Division

September 15, 2017



          Tim A. Baker United States Magistrate Judge Southern District of Indiana

         I. Introduction

         With the first of several bellwether trials in this MDL quickly approaching, the parties find themselves in a familiar position-fighting over discovery. The latest dispute touches on a number of issues, including waiver, privilege logs, production of discovery in native file format, and discovery of social media posts. As explained below, the Court grants in part the Cook Defendants' motion to compel [Filing No. 5143] because Plaintiff's objections and responses are deficient in several ways. Nevertheless, the Court denies other parts of the motion to compel given that some of the disputed discovery requests go too far.

         II. Background

         This discovery dispute arises from a products liability action regarding a medical device: an implanted filter. Plaintiff seeks damages that include pain and suffering, loss of enjoyment of life, and continuing medical care, including for depression with increased anxiety. This specific case will be a bellwether trial as a part of a larger MDL and is the first such case set for trial.

         The Cook Defendants' motion to compel initially addressed nine categories of materials. However, while the motion was pending, the Cook Defendants and Plaintiff resolved several issues. The remaining issues involve waiver, privilege logs, the format of responses, and social media data. [Filing No. 5638, at ECF p. 2-3, 17-18.]

         III. Discussion

         Parties may obtain discovery regarding any relevant, non-privileged matter that is proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). When a party fails to give discovery responses or the responses are evasive or incomplete, the requesting party may seek an order to compel discovery. See Fed. R. Civ. P. 37(a).

         Contrary to Plaintiff's offered Florida case law [Filing No. 5458, at ECF p. 3], Seventh Circuit law is well settled that the burden of persuasion falls squarely on the party resisting a motion to compel. Crabtree v. Angie's List, Inc., No. 1:16-cv-00877-SEB-MJD, 2017 WL 413242, at *1 (S.D. Ind. Jan. 31, 2017); Executive Mgmt. Services, Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895, at *3 (S.D. Ind. Nov. 3, 2014); Snedker v. Snedker, No. 2:10-cv-189-LJM-WGH, 2011 WL 3555650, at *1 (S.D. Ind. Aug. 11, 2011); Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009); McGrath v. Everest Nat'l Ins. Co., 625 F.Supp.2d 660, 670 (N.D. Ind. 2008).

         a. Blanket Waiver

         The Cook Defendants seek as a sanction a blanket waiver of objections to their first interrogatories and first requests due to Plaintiff's delayed response and failure to produce a privilege log. The waiver of all objections is not warranted. Waiver of all objections due to delay is generally reserved as a sanction only for unjustified delays. See Ribik v. Peerless Indem. Ins. Co., No. 2:13-cv-154-JTM-PRC, 2014 WL 2938398, at *3 (N.D. Ind. Jun. 30, 2014). Here, Plaintiff's delay was only 11 days and was caused in part by a hurricane. Under these circumstances, such a harsh sanction would be unjust.

         Nor does the lack of a privilege log justify the waiver of all privileges. Failure to provide a privilege log may result in the blanket waiver of discovery objections. Miller v. City of Plymouth, No. 2:09-cv-205-JVB-PRC, 2011 WL 1740154, at *4 (N.D. Ind. May 5, 2011). However, a blanket waiver is not an appropriate sanction when the party seeking protection makes a good faith showing that the requested material is privileged. See Am. Nat'l Bank & Trust Co. of Chicago v. Equitable Life Assurance Soc'y of U.S., 406 F.3d 876, 879 (7th Cir. 2005). Similar to Simpson v. City of Indianapolis, where the requested material had already been found to be privileged, the Cook Defendants' interrogatories and requests plainly encompass privileged information. No. 1:13-cv-791-RLY-TAB, 2015 WL 332750, at *2 (S.D. Ind. May 4, 2015); see e.g. Request No. 20: “Any and all documents that relate to, refer to, or concern any of the facts, allegations, injuries, or damages referred to in the Complaint.”

         b. Breadth of Particular Discovery Requests

          The Cook Defendants move for an order to compel responses and a privilege log for Interrogatory Nos. 8 and 20 and Request Nos. 2, 12, 20, 27-30, and 37, which cover various topics. Plaintiff objects on privilege grounds and contends that she did not provide responses or a privilege log for those discovery requests because they are so broad that Plaintiff could not tell what the Cook Defendants wanted, and that they would require Plaintiff to log everything she has. Plaintiff adds that she will respond fully to the requests provided the Cook Defendants narrow them.

         The party opposing a motion to compel has the burden to show the discovery requests are improper. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). Plaintiff's argument does not meet her burden. Plaintiff's assertion-that the Cook Defendants made providing a privilege log impossible by defining “you” to include Plaintiff, her attorneys, and her representatives-fails to move the Court. Half of the interrogatories and responses in question do not even contain the word “you.” [Filing No. 5144, at ECF p. 18-20 (Interrogatory No. 20, Request Nos. 2, 20, 27, and 28).]

         The rules and Case Management Order #10 are clear: when objecting based on privilege, the objecting party must provide an evaluable basis for the privilege assertion (here, a privilege log) as well as everything not covered by the privilege.[1] Plaintiff must respond to the Cook Defendants' interrogatories ...

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