United States District Court, S.D. Indiana, Indianapolis Division
IN RE COOK MEDICAL, INC., IVC FILTERS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION This Document Relates to: Hill MDL No. 2570
ORDER ON THE COOK DEFENDANTS' MOTION TO COMPEL
Baker United States Magistrate Judge Southern District of
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.
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.
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.]
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).
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).
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.
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
Breadth of Particular Discovery Requests
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.
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).]
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. Plaintiff must respond to the Cook
Defendants' interrogatories ...